Reply to: Agencies and Opting Out

[TheFaQQer]

New contract, just spoken to the agent - I'd met the client, then interviewed in person.

Agent: So, are you opting in or out?
Me: I can't opt out - I've met the client.
Agent: Course you can, and it's better for IR35...



I've told her I'll opt out - even though I can't, if I need the protection, I know it's there!

[Apache]

in...out...in...out

.....shake it all about

[rootsnall]

Yes, you could go direct after a break. Whether the client has the clause in their contract is something only they can answer - but generally they do and it makes that benefit of opting in useless.

If you are opted in ( and thus covered by the agency regs ) then any clause in the contract between the agent and the client that has restrictions over and above the regs is not legal.

My last two contracts both contain 12 month restrictions and other opt out details but in neither case did the agent even mention opt in/opt out and I haven't signed any opt out paperwork. 99% sure the particular agent ( from a large agency ) wouldn't know his opt out from his elbow !

It is all a bit academic in practice as when it comes to trying to go direct the agent will get heavy with the client and then the client ( unless he likes a good scrap ) will back down.

[malvolio]

Thanks for the replies, you are so right, many agency staff just don’t get it, which I find is outrageous considering they are hiring contractors!!

Last one but one that I spoke to had been selling windows three weeks earlier. The last one knew absolutely nothing about the whole concept of a contractor with his own company...

99% are salesmen, not recruitment consultants. If you find a good one, hang on the them!

[Signo_cypher]

12 months is normal for an agency contract but reason they want you to opt out is because if you are "in" that clause would be null and void

You say "final part of contract negotiations" so by this assume you have been "introduced" to the client, aka interviewed. If this is case you cannot opt out now even if you wanted to, a point agencies never never never understand.

Thanks for the replies, you are so right, many agency staff just don’t get it, which I find is outrageous considering they are hiring contractors!!

[TheFaQQer]

Another question - is it the individual who opts in/out or the Ltd/Umbrella?

I consider myself to be opted in since i was never asked before I interviewed, I was then subsequently told that my umbrella (was P4 at the time - dontcha love 'em?) had opted out on my behalf when signing the contract?

Don't really care since contract is not with P4 any more and I consider myself opted in by default but was just wondering ...

Windy

IIRC for an umbrella the individual and the company need to opt out for it to be valid. If both don't, then you are in.

[WindyAnna]

Another question - is it the individual who opts in/out or the Ltd/Umbrella?

I consider myself to be opted in since i was never asked before I interviewed, I was then subsequently told that my umbrella (was P4 at the time - dontcha love 'em?) had opted out on my behalf when signing the contract?

Don't really care since contract is not with P4 any more and I consider myself opted in by default but was just wondering ...

Windy

[Not So Wise]

So as I understand it, assuming not opted out, having worked one extension I could take 6 weeks off and then go direct with the client and the 6 month restriction would be unenforcable. But, doesn't the client also have the same 6 month restriction clause with the agent? It's no benefit to me being able to get out of it if the client can't.

Sometimes the Client/Agency contract has such clauses, sometimes it does not.

Remember at the other end of the chain the client calls all the shots (especially if a big client) not the agency.
So if the client does not like some terms they just tell the agency to take them out and if the agency does not they stand to lose a lot of money, while the client is unlikely to lose anything, they just go to another more accommodating agency and will probably end up with the same contractor pool to pick from

[TheFaQQer]

Question:

I am at the final part of contract negotiations myself for a role due to start next week, Bauer and Cottrell have negotiated me outside of IR35 and am waiting for a revised contract Due to the fact that opting out was never mentioned at the beginning of the process I am now being asked (2 weeks down the line) to opt out.

The contract has a 12 month restraint of trade clause which the agency are ‘uneasy’ about removing. Is 12 months normal?

If you didn't opt out before being introduced to the client, then you are opted in. Opting out now would apply to further contracts with the agency, but not for this one.

[TheFaQQer]

So as I understand it, assuming not opted out, having worked one extension I could take 6 weeks off and then go direct with the client and the 6 month restriction would be unenforcable. But, doesn't the client also have the same 6 month restriction clause with the agent? It's no benefit to me being able to get out of it if the client can't.

Yes, you could go direct after a break. Whether the client has the clause in their contract is something only they can answer - but generally they do and it makes that benefit of opting in useless.

[Not So Wise]

Question:

I am at the final part of contract negotiations myself for a role due to start next week, Bauer and Cottrell have negotiated me outside of IR35 and am waiting for a revised contract Due to the fact that opting out was never mentioned at the beginning of the process I am now being asked (2 weeks down the line) to opt out.

The contract has a 12 month restraint of trade clause which the agency are ‘uneasy’ about removing. Is 12 months normal?

12 months is normal for an agency contract but reason they want you to opt out is because if you are "in" that clause would be null and void

You say "final part of contract negotiations" so by this assume you have been "introduced" to the client, aka interviewed. If this is case you cannot opt out now even if you wanted to, a point agencies never never never understand.

[VectraMan]

Yes - the agency will probably argue that the regulations say that you can opt out until "you are introduced to the client or start work". The word that they don't seem to see or understand is that it actually says "either you are introduced to the client or start work" which renders the clause differently.

So as I understand it, assuming not opted out, having worked one extension I could take 6 weeks off and then go direct with the client and the 6 month restriction would be unenforcable. But, doesn't the client also have the same 6 month restriction clause with the agent? It's no benefit to me being able to get out of it if the client can't.

[Signo_cypher]

Related question

Question:

I am at the final part of contract negotiations myself for a role due to start next week, Bauer and Cottrell have negotiated me outside of IR35 and am waiting for a revised contract Due to the fact that opting out was never mentioned at the beginning of the process I am now being asked (2 weeks down the line) to opt out.

The contract has a 12 month restraint of trade clause which the agency are ‘uneasy’ about removing. Is 12 months normal?

[sathyaram_s]

BTW, is opt-out, an 'agreement' with the agency or is it for a particular role?

Say, I opt out before the agency sends my CV to clientA, and after a week the same agency sends my CV to clientB. Does this mean I opted out for clientB also?

[TheFaQQer]

I'm sure the opt out form I signed was sent with the contract, which I obviously didn't see until after the interview. So does that mean it's all meaningless and I'm not opted out?

That seems very odd.

I've done two gigs opted out, and one where nobody mentioned anything so I wasn't, and there wasn't any difference in what the agency did or what they asked for.

Yes - the agency will probably argue that the regulations say that you can opt out until "you are introduced to the client or start work". The word that they don't seem to see or understand is that it actually says "either you are introduced to the client or start work" which renders the clause differently.

I think that I've actually been opted in on every contract I've done over the past 2 years - it's just that only one agency has ever asked me before I interviewed whether I was in or out.