Reply to: Has opting in cost me the gig?

[TheFaQQer]

Finally, negotiated an IR35 friendly contract! Qdos only suggested putting a substitution clause in the contract, which I did, plus I took out some other bits that I didn't like, and put some more clauses in from the PCG contract. Sent it off today, start on Monday.

The agency are still of the opinion that I can opt out, even at this stage, because I haven't been on site yet. As they say, never underestimate the power of stupid people in large numbers!

Thanks to all who helped!!

[fzbucks]

There are some other goodies in the contract as well, so even the opt out one needs to go to someone for review.

I particularly like the clause that says "The Contractor shall also not discourage the Client from dealing with the Company. The Contractor hereby indemnifies the Company for all financial loss it suffers arising from any breach by the Contractor of this clause."

I think that's coming out!

Is the pimps initials CP by any chance?

[tim123]

[QUOTE=Ardesco]Not the first time I have heard an agent asking you to opt out in order to get a decently worded contract. Surely this is something that they should not be able to do.

[QUOTE]

ISTM that it is something that they can easily do. The regs require an agency to 'nanny' an opted in worker. It would be quite easy for this nannying to make you the wrong side of IR35, whereas without it you would pass.

I doubt that there is anything that you could do to stop an agency knowingly only offer an IR35 fail if you opt in.

tim

[Ardesco]

but is doesn't say

"introduced or supplied"

it says

"before they are either introduced or supplied to a hirer."

Tell them to read it again and take some grammer lessons

[TheFaQQer]

both the limited company and the worker to be supplied must give notice, to the employment agency or employment business that this is the case, before they are either introduced or supplied to a hirer.

You might also note that it is illegal for an agency to require a worker to opt out of the regulations as per 32(13)
[/left]

Regulation 32(13) provides that an employment agency or employment business may not make the provision of its work-finding services conditional upon either a limited company or the worker to be supplied giving notice to opt out of the Regulations.

[/font]

Thanks.

I think that they are arguing the first point that it says "introduced or supplied" - since I've not been supplied, then I can opt out.

Sadly, they aren't forcing me to opt out - they will quite happily let me opt in, but won't provide a decent contract unless I opt out. So they're within the letter of the act, since they aren't making me do this, it's my "choice".

They are aware of what 32(9) says, it's just their interpretation of it!

[Ardesco]

Ah Mal beat me to it

Anyway send that to your pimp and see what he comes up with

[Ardesco]

http://www.executivesonline.co.uk/ca...mp_Regulations

Specifically of interest:

Before you are introduced to a client, an agency will ask you to clarify your position as to these regulations – whether you wish to remain covered by them in the same way as a temporary staffer would be – by formally indicating whether you opt out. It is, however, a contravention of the Act for any agency to require you to opt out of the Agency Regulations.

And I belive this link works:

http://www.dti.gov.uk/files/file24248.pdf

[malvolio]

Does anyone have the exact point in the agency regulations that says that once I've been introduced to the client, I'm opted in?

The whole set of rules is at http://www.dti.gov.uk/files/file24248.pdf.

It's in Regulation 32(9) which states

Regulation 32(9) provides that limited companies and those persons whose services they supply can choose not to be covered by the provisions of these Regulations. If they do exercise the choice not to be covered by the Regulations, then both the limited company and the worker to be supplied must give notice, to the employment agency or employment business that this is the case, before they are either introduced or supplied to a hirer.

You might also note that it is illegal for an agency to require a worker to opt out of the regulations as per 32(13)

Regulation 32(13) provides that an employment agency or employment business may not make the provision of its work-finding services conditional upon either a limited company or the worker to be supplied giving notice to opt out of the Regulations.

[TheFaQQer]

And still it rumbles on...

The agency policy is that all contractors are presented to the client as opted-in. It is their understanding that when you sign the contract (and opt-out), then you are opted out.

Their policy is to only offer an IR35 friendly contract if you opt out; if you want to opt in, they will word the contract so that you will be caught by IR35.

Sadly, my company policy is to sign an opted-in, IR35 friendly contract - that's what I normally do, and other agencies have no problem providing one.

Does anyone have the exact point in the agency regulations that says that once I've been introduced to the client, I'm opted in?

[Ardesco]

There are some other goodies in the contract as well, so even the opt out one needs to go to someone for review.

I particularly like the clause that says "The Contractor shall also not discourage the Client from dealing with the Company. The Contractor hereby indemnifies the Company for all financial loss it suffers arising from any breach by the Contractor of this clause."

I think that's coming out!

I suspect that is unenforcible anyway. It's amazing what some people try and put in thier contracts....

[TheFaQQer]

There are some other goodies in the contract as well, so even the opt out one needs to go to someone for review.

I particularly like the clause that says "The Contractor shall also not discourage the Client from dealing with the Company. The Contractor hereby indemnifies the Company for all financial loss it suffers arising from any breach by the Contractor of this clause."

I think that's coming out!

[Ardesco]

Rang the pimp and he says that I can still opt out, and if I opt in then I can't have a contract with a right of substitution clause in it.

Also when will the muppet realise that you are opted in now no matter what....

I would just sign the opt out thing and get the contract that has substitution clause in it (Make sure the contract doesn't have silly clauses like if you opt out you can substitute, but if you opt in you can't. It should be a static subc clause with no conditions).

If you ever get any problems with them paying get a solicitor to send a letter stating that you are opted in no matter what they say because you were intorduced to the client, with some legal guff stated. Once thier legal dept looks at it they will probably realise that you have them over a barrel anyway.

[Ardesco]

Not the first time I have heard an agent asking you to opt out in order to get a decently worded contract. Surely this is something that they should not be able to do.

I wonder if thats worth bringing up on the PCG forums...

Something to do when I get home

[TheFaQQer]

Just re-read the contract - there's no right of substitution clause!!!

Rang the pimp and he says that I can still opt out, and if I opt in then I can't have a contract with a right of substitution clause in it.

Part of me says that I should "opt out", but since the guidelines indicate that this isn't worthwhile, I'll get a better contract and can then ignore the opted out part of it!

[TheFaQQer]

Finally got a contract at 3pm on Friday. Agent then rang me and said "oh by the way, the first week is in Slough, not in central London as we said, but you'll be in London after that" - not too far apart BUT all my travel for the next month is booked to get me in and out of London Euston, so I'll need to get across London. I asked if they were paying expenses for travel between sites, and was told no, so I said forget it.

6pm - email from agent saying that they haven't managed to determine whether they will pay expenses or not, so can I turn up in Slough on Monday and they'll "sort it out" on Monday.

SO - I rang the client yesterday and explained the situation to him, and said that I wouldn't be on site until I've got a contract that I'm happy with, since I wouldn't be insured. Needless to say, he was a little disappointed, but understood completely where I was coming from. Turns out that I need to be in Slough until I can get security clearance (however long that takes these days - the agency hasn't even sent the forms through to complete), which is OK, as long as I know where I'm meant to be working.

I've emailed the contract to Qdos to see what they suggest, and may cover all bases by sending it to B&C as well...