Reply to: Opt in / Opt out - whats it all about?

[MobileCheese]

Arent they on x-factor ?

[Ardesco]

Also you can opt in at any point by writing a nice letter to your agent. Most of them are clueless feckers though and don't understand the very clear wording either/or.

The upside is that you can just let them believe what they want to believe but if it ever goes to court You show them an interview date of say 1st December and an opt-out signed 10th December and the court laughs themself silly at the stupid agency because it is blatantly obvious that you are opted in.

If you are opted in, you are opted in. You can't change that no matter what you sign or what you agree with the agent. The only way they could prove that you're not opted in is if they forge the paperwork and backdate the opt out paperwork hich of course would be fraud which is totally illegal....

[SueEllen]

how would they prove you didn;t opt out until after you met the client?

if you verbally opt-out and then meet the client, but not actually opt out in writing then whats the score?

It's civil law so the case would be judged on probabilities i.e. who is the most believable and who has the best lawyer to argue their case that doesn't p!!s the judge off.

[mailric]

how would they prove you didn;t opt out until after you met the client?

if you verbally opt-out and then meet the client, but not actually opt out in writing then whats the score?

[malvolio]

Course they would.

It's to the agency's financial advantage to argue the introduction takes place when you physically meet the client. Industry custom and practise could be argued to show otherwise.

Arguably (and rather more realistically) the introduction is at the point when you cease being an anonymous applicant and they know who you are. So that's when the agent sets up the initial contact between the two parties...as in

in·tro·duc·tion (ĭn'trə-dŭk'shən)
n.

1. The act or process of introducing or the state of being introduced.
2. A means, such as a personal letter, of presenting one person to another.

[SueEllen]

There is always the question of whether a phone interview counts as meeting the client...

I would argue yes it does, but agencies will argue that it doesn't.

Course they would.

It's to the agency's financial advantage to argue the introduction takes place when you physically meet the client. Industry custom and practise could be argued to show otherwise.

[TheFaQQer]

Because the ability to opt out ceases as soon as you meet the end client. And unless you can work out how to have an interview without meeting the end client....

That's why we went for the opt-out option in the first place. The whole thrust of the regs is to protect Sally from Office Angels getting shafted by her client and her agency, who until the regs could have withheld her £10 an hour for all sorts of reasons for several months, forced her to work excessive hours and stopped her working for anyone else for months at a time even if it put her out of work. That those conditions can help us in some circumstances is purely coincidental.

The PCG guidance is also entirely clear, as long as you accept the DTI's own position that the opt out takes you out of all of the regs in their entirety, a point which is not immediately obvious from the regs themselves (Whch are a masterpiece of carp drafting).

There is always the question of whether a phone interview counts as meeting the client...

I would argue yes it does, but agencies will argue that it doesn't.

[malvolio]

The interview is never mentioned in any of the contract document. So nobody may know if the interview has ever taken place. Then why is the interview considered so important for opt-out considerations?

Because the ability to opt out ceases as soon as you meet the end client. And unless you can work out how to have an interview without meeting the end client....

That's why we went for the opt-out option in the first place. The whole thrust of the regs is to protect Sally from Office Angels getting shafted by her client and her agency, who until the regs could have withheld her £10 an hour for all sorts of reasons for several months, forced her to work excessive hours and stopped her working for anyone else for months at a time even if it put her out of work. That those conditions can help us in some circumstances is purely coincidental.

The PCG guidance is also entirely clear, as long as you accept the DTI's own position that the opt out takes you out of all of the regs in their entirety, a point which is not immediately obvious from the regs themselves (Whch are a masterpiece of crap drafting).

[Ashwin2007]

However, as has been suggested here, by the time you interview, if you've not opt-ed out you have by default opted-in.

Clear as mud.....

The interview is never mentioned in any of the contract document. So nobody may know if the interview has ever taken place. Then why is the interview considered so important for opt-out considerations?

[mailric]

clear as mud. i'm going to head to PCG as advised.

i've understood everything up to now, but this does jusn't (yet) make any sense!

i didn't think i was that stupid until now

[johhnysalad]

The act says "either introduced to the client or has started work" or something like that. The implication being that an interview / meeting is an introduction, otherwise there would be no need to have the "either / or" part of the wording.

The PCG has IMHO one of the best guides to agency regs (members only).

The opt-out for which PCG lobbied is covered in paragraph (9) of Clause 32 and reads as follows:

“(9) Subject to paragraph (12), paragraphs (1) - (8) shall not apply where a work-seeker which is a company, and the person who is or would be supplied by that work-seeker to carry out the work, agree that they should not apply, and give notice of that agreement to an employment business or agency, provided that such notice is given before the introduction or supply of the work-seeker or the person who would be supplied by the work-seeker to do the work, to the hirer.”


No mention of "either" there . It also goes on to say;

... it is a contravention of the Act for any agency to require you to opt out of the Agency Regulations. It may also be illegal for them to pressure you to do so by threatening not to put forward your CV.

.... the “opt out” must take place before you are introduced to the client. In most cases, therefore, this means that it must take the form of a letter from you to the agency. It cannot form part of the contract, as you will already have been introduced to the client before you sign any contracts.

The guidance generally appears to be that if your contract is IN IR35, opt-in, if its OUT, opt-out. However, as has been suggested here, by the time you interview, if you've not opt-ed out you have by default opted-in.

Clear as mud.....

[malvolio]

The act says "either introduced to the client or has started work" or something like that. The implication being that an interview / meeting is an introduction, otherwise there would be no need to have the "either / or" part of the wording.

CP have argued with me before that you can opt out up until you start work, as it says "OR" but they don't understand the word "EITHER" beforehand.

The intention of that bit of the regs is to allow for both the usual contractor interview approach and the temp from Office Angels who is simply told to turn up at Cuthbert and Dibble on Monday morning (and who is actually the person the regs are aimed at...).

General interpretation is your first offical contact with the client, which for most of us is the interview stage. Once you're past that, you can't opt out. That's why you send an opt out letter with your original application.

Incidentally never ever believe any interpretation provided by CP. They don't even understand VAT accounting.

[barry_abs]

If you are going through an umbrella, and you've already got the gig, then there is no advantage to you of opting out.

i am going through an umbrella, i do already got the gig, i did opt-out - coz the agency and umbrella leant on me to do so, not because i have a clue what i'm doing..

[TheFaQQer]

i already met the client (interview), so by default i'm opted-in.. so why are the agency and umbrella encouraging me to opt-out?

this is the least clear of all the terms i've had to agree/state..

i'm not a Ltd. (anymore), i am under IR35, i just want my money and not to be handcuffed.. should i opt-in?

If you are going through an umbrella, and you've already got the gig, then there is no advantage to you of opting out.

[TheFaQQer]

There is still some debate as to the interpretation of "introduced"

Is it.
Miss B was introduced to Miss A (sorry moose). Which implies meeting for the first time.
Or is it
Substance A was introduced into the mixture. Which implies actualy being placed at the clients site.

**This may have been resolved.
I am not qualified to give this advice.

The act says "either introduced to the client or has started work" or something like that. The implication being that an interview / meeting is an introduction, otherwise there would be no need to have the "either / or" part of the wording.

CP have argued with me before that you can opt out up until you start work, as it says "OR" but they don't understand the word "EITHER" beforehand.