Reply to: How did it come to this...

opt opt opt???

AIUI if you are contracted through an umbrella company (as the OP is) then you cannot opt out. Simple as that. Therefore you cannot opt in either: you are in. Simple as that.

As for the agency being aware of your situation but being unable to agree a contract with the client in time, that's nothing to do with the regulations, and everything to do with whether you'd buy a used car from these prats.

Re: STVH001

There are some very real benefits to being opted in...like the right to go direct and the right to be paid regardless of whether the agents been paid or not.

One would think those two benefits alone are pretty important ones :rollin

Mailman

Re: STVH001

"The biggest one is supposed to be the handcuff clause but the vast majority of big clients INSIST on retaining an agency anyway."

But sometimes it is still an advantage. One of the consultants where I work is being terminated because the client have discovered that the agency have been doing illegal things. The client still want the consultant to stay but the agent are insisting that he cannot becuse of the handcuff.
They seem to want to stuff this guy just because they can.

tim

STVH001

The advice from Mordac was spot on and is based on commonsense.
Opting in make life harder for the agency because they need to do more including changing your contract.

You can be absolutely sure that if you make life hard for the agency he will make life hard for you.

Mailman and his mates may be morally right but in the real world things are not so simple.

There are NO advantages whatsoever to opting in.
The biggest one is supposed to be the handcuff clause but the vast majority of big clients INSIST on retaining an agency anyway.

Mailman makes opting in sound easy and blissful but how many stories have ytou heard about opted in contractors suffering from the following:-
1)Prolonged contract discussions.
2)Poor IR35 caught contracts. Contracts for opted in contractors must specify the contractor - i.e. personal service and by default an opted in contractor (according to the regs) is under the control of the client. So that puts paid to your RoS and D+C clauses
3)Lower rates.
4)All sorts of requirements about providing photos and criminal records.
5)Delayed contractual stuff to the point where the client says "Look have you anyone who can start tomorrow?" Agency says "Ah yes, this other guy has opted out. Have him instead?"

The PCG fora are full of these stories.

Re: Reality bites!

Whether you are opted out or in makes no difference to Mr IR...if they come for you they are going to come for you regardless of your opted status.

Mailman

Re: Reality bites!

If this agency normally places “opted-out” contractors with this client, then their contract might contain these clauses. So if you want to “opt in” they will have renegotiate contracts with the client. Reporting them to the DTI will get you nowhere.

Just say you will opt out if they give you a good contract from an IR35 point of view. If you insist on opting out, it looks like you are going to loose this contract. A simple choice.

Re: Reality bites!

"They can not change the contract terms and conditions based on your "opted" status."

Errm, there are certain clauses usually found in an opted-out contract that are disallowed in an opted-in one. Can't remember the detail off the top of my head.

This agency wants reporting to the DTI - if you are a PCG member then raise it with them as I am sure they would be VERY interested, they also have links with REC and ATSCO.

Re: Reality bites!

Well i've opted out - and its made no difference to the way i work with my client. They would never deal direct anyway - only small companies would consider dealing direct - the big boys who pay the big bucks will only deal with the agencies.

You sound like a right old wingebag mailman, I wouldn't hire you in a month of sundays.

Re: Reality bites!

You can opt back in

Are you sure about this MM?
I know we discussed it recently. I read the regs and the wording seems to have changed recently. It appears to me that once you have signed the opt out you can not change your mind for the length of the contract and any extensions to it (barring material change).

Re: Reality bites!

Report the agent to the DTI.

And that will get you precisely where? No contract, possible slap on wrist for agency 6 months down the line when DTI official gets round to doing something about it, or not. I'd say there was a fair chance your letter will go straight in the bin.
As I said, this strong-arm stuff is probably indicative of a poor agency, and I'd be more wary of problems with them somewhere down the line, rather than quibbling over opted-in status.

Reality bites!

"You are a fool if you opt out!"
Er... no. Reading the situation, he would be a fool if he opted IN and lost the contract!

"They cannot make opting out a condition of employment.."
Well, Mailman, welcome to the real world, where agencies will try their damnest to get you to opt out; even going so far as to ruin the chances of you taking this contract.


"...send a letter saying you are opting back in"
Once again you demonstrate a lack of understanding of the legislation. You can't simply play the Hokey-Cokey by opting out and then in again. Chances are that by the time it's got to the stage described, the agency will demand an opt-out form has been signed by you BEFORE they will let you sign the contract.

Strong arm tactics? yes. Unethical? indeed. But that's what happens in reality.

Re: Reality bites!

Once again you demonstrate a lack of understanding of the legislation. You can't simply play the Hokey-Cokey by opting out and then in again. Chances are that by the time it's got to the stage described, the agency will demand an opt-out form has been signed by you BEFORE they will let you sign the contract.

Hahahaha...sorry...but you have no idea do you. You can opt back in as long as you do it before you start the contract. Its all perfectly legal. :rollin

To those of you who say opt out, you want to try reading the regs again.

Wise words Widget. I believe it is extremely dangerous for contractors to opt out without cast iron clauses in the "opted out" contract that guarantees things like payment regardless of whether the agent has been paid or not.

Mailman

Re: Reality bites!

Report the agent to the DTI.

They can not change the contract terms and conditions based on your "opted" status.

They are supposed to present all details of the job to you and you then decide whether to opt in or out.

Talk to the client. Point out to them that your opted status does not touch them in any way, in fact, if there are any problems in the future you will be (at worst) seen as an employee of the agent.

Talk to the agent. Tell them you are willing to opt out, but only if the consequent contract is to your satisfaction.

To those of you who say opt out, you want to try reading the regs again.
Opting out is a dangerous thing to do and in most cases will leave you worse off.
The regs force a number of things to happen as long as you are opted in, not the least of which (from our viewpoint) is the matching of contract terms of all parties. Should you get to an IR35 review you can point at the contracts being the reality as otherwise the agents have broken the law. This has not been tried yet but I think there is a strong case here to remove the IRs ability to construct a theoretical contract.
The regs also require the agent to state if the contract is one of service or for services, this is a strong IR35 pointer.
The agents are afraid of 2 sections. One is the 8 week period where you can bail on the agent, the second is the requirement for the agent to pay your invoice whether the client does or not.
Use all of th above to negotiate. If in doubt opt in.

You are a fool if you opt out! All the agencies are trying to do is protect their revenue stream and stop you from going direct at the end of the contract period.

They cannot make opting out a condition of employment/the contract and it makes absolutely no difference to the client whether you are opted in or out or shake it all about.

Tell them to take some harden up pills and be prepared for you to leave them at the completion of the contract :rollin

On the other hand...you could always tell them you will opt out now and then when you send your signed contract back also send a letter saying you are opting back in...watch the reactions on that one :rollin

Mailman

Most agencies are fairly ignorant of the new regs, and just see the headline bit about going direct (and cutting them out) and run scared. Needless to say they will try every trick in the book to get you to opt out. This (IMHO) is usually a sign of a poor agency, in that the better ones will have made more of an effort to understand the regs, and adjust their business practices as necessary.
I would have no problem opting out, but I would be a bit wary of an agency using the tactics you are describing, they may just be the symptoms of bigger problems around the corner.
Feel free to name the agency, there may be contractors who can give you a better idea of how good they are.

Good luck.