Reply to: Agency Ending Contract Early, Not yet paid - Can IP and Work Product be withheld ?

[northernladuk]

Uh huh

Have you PM'd Darren_Test and PC to see what they would do?

[AussieDigger]

So we need details. Is this actually happening at all?

Uh huh

[BlasterBates]

No insurance company of an agency is going to spend money defending an opt-out opt-in fight - that's why there is no case law its never got to court.

Equally its utterly irrelevant here - what we need to know is what reason are they giving for withholding payment

It won't be an opt/in opt/out fight per se it will be a fight to get paid using the regulations rather than the contract.

I can't see a contractor being advised by a lawyer to go that route unless it has been clearly agreed by the agency in the contract that the contractor is under the the regulations.

[northernladuk]

Not necessarily.

So we need details. Is this actually happening at all?

[AussieDigger]

So shafting your own IR35 status you mean?

Not necessarily.

[northernladuk]

Equally its utterly irrelevant here - what we need to know is what reason are they giving for withholding payment

My money is on it being hypothetical in which case we are done.

[eek]

The "opt out" is so inconsequential it isn't worth fighting over. It has been specifically written to exclude contractors.

If you have a court case over it you will probably get nowhere and spend an awful lot of money. All the agency has to say is that you were not under the direct control of the client and the regulations do not apply regardless of what you have said. Of course you could get a clever lawyer to prove it but that would also probably put you inside IR35, nicely documented evidence available from the court records.

No insurance company of an agency is going to spend money defending an opt-out opt-in fight - that's why there is no case law its never got to court.

Equally its utterly irrelevant here - what we need to know is what reason are they giving for withholding payment

[BlasterBates]

Unless you set the agency up by ensuring that you made them aware the client was defining the day to day work and their contract was too generic especially if the contract says the agency supervises the day to day work (and then didn't actually do so during execution). Stuff like that ?

My advice would be to get your contract right, i.e. get them to agree to conditions which you think are covered by the regulations rather than fighting to be covered by the regulations. The regulations are there to protect temporary employees.

[northernladuk]

Unless you set the agency up by ensuring that you made them aware the client was defining the day to day work and their contract was too generic especially if the contract says the agency supervises the day to day work (and then didn't actually do so during execution). Stuff like that ?

So shafting your own IR35 status you mean?

[AussieDigger]

The "opt out" is so inconsequential it isn't worth fighting over. It has been specifically written to exclude contractors.

If you have a court case over it you will probably get nowhere and spend an awful lot of money. All the agency has to say is that you were not under the direct control of the client and the regulations do not apply regardless of what you have said. Of course you could get a clever lawyer to prove it but that would also probably put you inside IR35, nicely documented evidence available from the court records.

Unless you set the agency up by ensuring that you made them aware the client was defining the day to day work and their contract was too generic especially if the contract says the agency supervises the day to day work (and then didn't actually do so during execution). Stuff like that ?

[BlasterBates]

The "opt out" is so inconsequential it isn't worth fighting over. It has been specifically written to exclude contractors.

If you have a court case over it you will probably get nowhere and spend an awful lot of money. All the agency has to say is that you were not under the direct control of the client and the regulations do not apply regardless of what you have said. Of course you could get a clever lawyer to prove it but that would also probably put you inside IR35, nicely documented evidence available from the court records.

[northernladuk]

When did everyone turn in to fluffy snowflakes all of a sudden.

[SueEllen]

Hmmm.....if an agency refuses to sign a contract until you opt in then that is bullying - emails, texts, calls - all to force you to sign and cover their risk situation rather than care about yours. Fits the definition (source Wikipedia) :-

Bullying is the use of force, threat, or coercion to abuse, intimidate, or aggressively dominate others. The behavior is often repeated and habitual. One essential prerequisite is the perception, by the bully or by others, of an imbalance of social or physical power, which distinguishes bullying from conflict.[1] Behaviors used to assert such domination can include verbal harassment or threat, physical assault or coercion, and such acts may be directed repeatedly towards particular targets. Rationalizations of such behavior sometimes include differences of social class, race, religion, gender, sexual orientation, appearance, behavior, body language, personality, reputation, lineage, strength, size, or ability.[2][3][4] If bullying is done by a group, it is called mobbing.[5]

You can refuse to do business with them and find a contract elsewhere.

[AussieDigger]

Answers are in order:
No
It isn't bullying and harassment just business.
No

Cojak and I on separate occasions spoke to the agencies inspectorate. We both got different answers.

However as I stated before you can still opt-out and have things changed in your contract.

Hmmm.....if an agency refuses to sign a contract until you opt in then that is bullying - emails, texts, calls - all to force you to sign and cover their risk situation rather than care about yours. Fits the definition (source Wikipedia) :-

Bullying is the use of force, threat, or coercion to abuse, intimidate, or aggressively dominate others. The behavior is often repeated and habitual. One essential prerequisite is the perception, by the bully or by others, of an imbalance of social or physical power, which distinguishes bullying from conflict.[1] Behaviors used to assert such domination can include verbal harassment or threat, physical assault or coercion, and such acts may be directed repeatedly towards particular targets. Rationalizations of such behavior sometimes include differences of social class, race, religion, gender, sexual orientation, appearance, behavior, body language, personality, reputation, lineage, strength, size, or ability.[2][3][4] If bullying is done by a group, it is called mobbing.[5]

[SueEllen]

Whats the opt in / out status got to do with it ?

If an agency forces you to opt out when you already signed the opt in, are they acting illegally ? What can be done when they bully and harass you to opt in to something you're not obligated to do ? Can they be charged for a criminal offence ?

Answers are in order:
No
It isn't bullying and harassment just business.
No

Cojak and I on separate occasions spoke to the agencies inspectorate. We both got different answers.

However as I stated before you can still opt-out and have things changed in your contract.