Reply to: contract arrived.

[Ardesco]

Don't really agree as I can't see many agencies issuing one contract having clauses that are different depending on your status. For example. You can only be held responsible for your work and have to fix errors at your own cost if outside the regulations. This clause would be illegal if inside. I therefore cannot see how you can change your status and opt back in if it invalidates your contract terms.

Unless the contract specifically states that the contract is only valid if you are opted out and will no longer be valid if you opt in there is nothing much they can do about it IMHO. Even then it will probably be seen as an un-enforcible condition because they are attempting to deny you your legal right to opt in and will most likely crumble if it ever went to court.

Bear in mind that the vast majority of T & C in contracts supplied by agents are probably utter tosh, have never been tested in court, and wouldn't stand up if it went to court. They just need you to belive that the T&C are valid and that you are bound by them when in a lot of cases you probably are not.

Things like you are not allowed to work for the end client for 2 years after finishing your contract are rubbish and will never stand up in court because it is an unreasobanle handcuff clause. If they said 4 weeks it would be probably be fine.

I would love to see them take you to court because you decided to opt in. It would probably get laughed out by the judge if it ever got that far.

[TheFaQQer]

Don't really agree as I can't see many agencies issuing one contract having clauses that are different depending on your status. For example. You can only be held responsible for your work and have to fix errors at your own cost if outside the regulations. This clause would be illegal if inside. I therefore cannot see how you can change your status and opt back in if it invalidates your contract terms.

Most contracts have a severability clause in them - if any of the other clauses are found to be illegal / not-relevant, then the rest of the contract still stands.

I believe that this would still be the case if opting in made any changes to the contract terms. The past couple of contracts I've done have got clauses that say (in effect) "If you are opting in, then ... otherwise ..." The bulk of the contract is the same, it's just about going back to the client, and terms of payment, usually.

[malvolio]

...snip... I therefore cannot see how you can change your status and opt back in if it invalidates your contract terms.

Now that's a good question...

I think I'll go ask the experts!

[Pondlife]

If there are T&C in the contract that says "These T&C are only applicable if you are opted out" then you are not changing the T&C, they just no longer apply because you are no longer opted out. The contract still stands and the T&C still stand, nothing has changed from a legal point of view.

It is like having a contract that states "You are allowed to drive company cars if you have no points on your license". If you get some points on your license you have not changed the T&C of the contract, you just have a term that no longer applies.

<insert random example here>

Don't really agree as I can't see many agencies issuing one contract having clauses that are different depending on your status. For example. You can only be held responsible for your work and have to fix errors at your own cost if outside the regulations. This clause would be illegal if inside. I therefore cannot see how you can change your status and opt back in if it invalidates your contract terms.

[TheFaQQer]

Some agencies will only offer an IR35 friendly contract if you opt out - there is nothing that stops them doing this, unfortunately.

[shoes]

If you have already met the client then the opt out doesn't apply to begin with. You can only opt out *before* meeting the end client, not after.

The people you speak to on the phone at an agency in my experience are just not aware of this. They prefer you to opt out because its less hassle for them. Whether or not you are technically opted in or out won't make any difference if the agency is behaving as though you are opted out, unless of course there are any problems arising from you wanting to (and being able to) go direct to the client at the end of the contract, or you aren't paid for some reason. In the usual bum on seat world it's probably advantageous to opt out because that makes you more attractive to the agent placing you than a supposedly clued up contractor being a pain in the arse and demanding to opt in. Agencies are not supposed to use the opt in/out desire of a contractor to decide which one to take but obviously they do.

If you aren't worried about a clients and agencies ability to pay, and you know that the client won't want to take you on direct anyway, it's more sensible to opt out to save yourself and the agent hassle plus it works in your favour in getting the gig over a contractor that wants to opt in.

It's not how it should work but it seems to be what happens.

[DaveB]

If you have already met the client then the opt out doesn't apply to begin with. You can only opt out *before* meeting the end client, not after.

[reddeagle]

Either way you have no control over it. The contract between Agent and client is not the real problem, the real problem is the true working conditions on the ground. If you can proove that your working practises match your contract it doesn't matter what the contract between the agent and the client says.

What does it actually mean to me if I opt in or out?

I had thought this was someting to do with IR35 but i guess thats wrong.

[Ardesco]

True, unless you get IR35 investigated and get taken to court then it does become a factor

Either way you have no control over it. The contract between Agent and client is not the real problem, the real problem is the true working conditions on the ground. If you can proove that your working practises match your contract it doesn't matter what the contract between the agent and the client says.

[BA to the Stars]

My pimp stated that they would not send out the contract renewal until such time as they received the signed opt-out form.

They should remember that I could tell them to get lost and they lose the gig and I walk into another contract! Plus it is probably illegal (and certainly immoral to work in such a way but we are talking agencies here - sorry Dodgy).

[Not So Wise]

Opting in/Out has nothing to do with IR35, it's basiclly a limit on what the agency can/cannot do and what they should do

The agency will have a separate contract with the client that is nothing to do with you.

True, unless you get IR35 investigated and get taken to court then it does become a factor

[Ardesco]

If there are T&C in the contract that says "These T&C are only applicable if you are opted out" then you are not changing the T&C, they just no longer apply because you are no longer opted out. The contract still stands and the T&C still stand, nothing has changed from a legal point of view.

It is like having a contract that states "You are allowed to drive company cars if you have no points on your license". If you get some points on your license you have not changed the T&C of the contract, you just have a term that no longer applies.

<insert random example here>

[Pondlife]

There is nothing in the legislation that says that you need to wait until the contract ends to opt back in. There is a paragraph that says you need to wait until you placement with the current client ends before you can opt out.

It is entirely reasonable to opt back in at any point.

But there may be terms in the contract that are only valid if you are opted out. You can't therefore invalidate the T&Cs you signed up to by sending a letter.

[Ardesco]

I am contracting via a limited company:

The agency got me an interview with the client.

Nothing about the contract was discussed with the Client only via the agency.

If you have had an interview with the client you have been introduced and techniocally you are opted in like it or not. The agency will probably not understand this and push for you to opt out anyway.

At the end of the day I personally don't think opted in or out makes much difference if you are dealing with a large company that has defined payment terms and has the cashflow to be able to pay you on time. I would check out the benefits that opting in provides however, you may want them for peace of mind.

It does however annoy me when agencies pull all this bulltulip in an attempt to force you to opt out. IMHO it is against the spirit of the legislation at best, and contravines the right to not be discriminated against for wanting to opt in at worst. Something it would be nice to see the PCG make a stand about and get some real clarification (I must post about it on thier forums some time). On the flipside you can try and use it as a bargaining chip to make the contract IR35 compliant but teling them you will opt in unless they tweak the contract for you. Remember that opting in will cost them more money so it is in thier interests to get you to opt out.

As for the contract, it is between you and the agency and has nothing to do with the client. The agency will have a separate contract with the client that is nothing to do with you.

[Ardesco]

Not sure this is true. IIRC you can only opt in at a renewal.
The reverse is not the case at any point though.

There is nothing in the legislation that says that you need to wait until the contract ends to opt back in. There is a paragraph that says you need to wait until you placement with the current client ends before you can opt out.

It is entirely reasonable to opt back in at any point.