Reply to: Contract clauses becoming more draconian?

[PerfectStorm]

Genuine contractors are controlled (sort of) by their agency though, and it is with them that the regulations hold.

[BlasterBates]

If you are a "real contractor" the regulations don't apply anyway.

a limited company contractor accepting on paper that they are controlled by the client and wish to be covered by the regulations is sending a pretty negative message to HMRC about their employment status. Control by the client is a key factor in determining the employment status of a contractor, and can be part of a package of evidence that puts a contractor inside IR35.

But, as highlighted earlier, genuine contractors are not controlled by their client, and so technically the regulations do not apply anyway.

I would only insist on opting in if I were inside IR35, otherwise it's rather pointless.

[northernladuk]

You aren't going to let this non issue go are you.

[PerfectStorm]

We should compile a list of agencies where "No one's asked to opt in before" - eventually a duplicate will come up, and we can say, "yes this person did in 2017".

[fidot]

If an agent is insisting on opting out then it is because their legal dept has thought long and hard about it.

Yes, and they are entitled so to do.

I got that too, and I reminded them of the law around not making it conditional... "which obviously isn't going to happen here, right?"

Funnily enough a template was produced from somewhere and the necessary 'opt in' version of the document created

However, the other alternative is that the agency doesn't require it - it's just the agent trying to make life easier for himself - see Perfect Storm's post above.

As with all negotiations, you have to know what's worth fighting for (and I would personally agree that opting in is less important than getting the rest of the contract clauses to be acceptable).

If a contractor does want to push for an opt-in version, Perfect Storm's approach is worth considering, despite the statement not being true.

[BlasterBates]

Agree with all that. My point is that if a contractor wants the opt in version of a contract, for whatever reason, the claim of illegality isn't a bad tactic. Agents lie to contractors all the time to get signatures on contracts. Always useful to have a counter argument, even if based on FUD.

If an agent is insisting on opting out then it is because their legal dept has thought long and hard about it.

[FIERCE TANK BATTLE]

Agree with all that. My point is that if a contractor wants the opt in version of a contract, for whatever reason, the claim of illegality isn't a bad tactic. Agents lie to contractors all the time to get signatures on contracts. Always useful to have a counter argument, even if based on FUD.

"The client has pulled out, sorry. *click*"

[fidot]

If it was created to give to a contractor that was complaining about Opt In the whole thing is a complete waste of time. It will be wrong for a start. I'll also bet they didn't then ask the contractor for passport and a copy of his qualifications and any other extra diligence they should be producing. It exists to do nothing more than appease the contractor in which case it's a total waste of time as it doesn't give you the protections you were opting in for anyway.

Agree with all that. My point is that if a contractor wants the opt in version of a contract, for whatever reason, the claim of illegality isn't a bad tactic. Agents lie to contractors all the time to get signatures on contracts. Always useful to have a counter argument, even if based on FUD.

[northernladuk]

Except that, in this case, as PerfectStorm said "Funnily enough a template was produced from somewhere and the necessary 'opt in' version of the document created"

If it was created to give to a contractor that was complaining about Opt In the whole thing is a complete waste of time. It will be wrong for a start. I'll also bet they didn't then ask the contractor for passport and a copy of his qualifications and any other extra diligence they should be producing. It exists to do nothing more than appease the contractor in which case it's a total waste of time as it doesn't give you the protections you were opting in for anyway.

[fidot]

And they will not fall for the conditional rubbish because they'll just ask someone that does and you are back to square one.

Except that, in this case, as PerfectStorm said "Funnily enough a template was produced from somewhere and the necessary 'opt in' version of the document created"

[northernladuk]

Even though the agency are allowed to say "opt in" or "f*** off", how many agents will actually know this? In which case, the 'I reminded them of the law around not making it conditional... "which obviously isn't going to happen here, right?"' seems like quite a good negotiating ploy

Firstly, where I agree they tend to be clueless on many of the finer points I'm pretty sure they'll have a clue what it is. They deal with it day in day out and probably won't have an opt in contract.

And they will not fall for the conditional rubbish because they'll just ask someone that does and you are back to square one.

[fidot]

Even though the agency are allowed to say "opt in" or "f*** off", how many agents will actually know this? In which case, the 'I reminded them of the law around not making it conditional... "which obviously isn't going to happen here, right?"' seems like quite a good negotiating ploy

[northernladuk]

I'd like to see that response if there is one available - mandating that someone 'opt' that an agency shouldn't be held to their own industry code of conduct doesn't quite pass the sniff test for me.

I don't see why. It's there to protect vulnerable workers and the opt out option was created for Limited companies and highly skilled professionals who don't want to be governed by them. It was designed for us to opt out so I don't see why forcing them to engage with us as opt in should be mandated. If the agencies want to deal solely with us and there is the provision to do so why must they accept opt in?

It's slack of them I agree but they are technically following the guidelines of the legislation.

That said I've yet to see an agency opting out properly so generally you are in by default, for what good it really does you.

[PerfectStorm]

Cojak wrote to BiS about this and confirmed agents are well within their rights to decide not to deal with Opt In contractors if they so wish. Its not about it being conditional it's just about their choice of engagement.

I'd like to see that response if there is one available - mandating that someone 'opt' that an agency shouldn't be held to their own industry code of conduct doesn't quite pass the sniff test for me.

[northernladuk]

I got that too, and I reminded them of the law around not making it conditional... "which obviously isn't going to happen here, right?"

Funnily enough a template was produced from somewhere and the necessary 'opt in' version of the document created

Crazy eh!

Cojak wrote to BiS about this and confirmed agents are well within their rights to decide not to deal with Opt In contractors if they so wish. Its not about it being conditional it's just about their choice of engagement.