Reply to: Change of Agent - Trying to chang OptIn/Out status

[Taita]

Correct, they can vary the rate or other terms though.

Of course they can but they cannot ask let alone insist on opt out without breaching the regs.

[evilagent]

Certainly nothing to do with IR35

Often the most salient point is about payment - Contractor does not get paid, because Agency has not been paid. Contract, via Agency, is between Contractor and Agency - whether Agency gets paid or not, should not be allowed to affect Contractor being paid.

Strictly speaking, (sorry to now become pedantic when my post was about pickiness)
you either get paid off a signed timesheet, not whether the agency get paid.

If an agency is on 60-day terms, for example, and you get paid off a weekly signed timesheet, your financial risk is not 60 days work unpaid, but about 1 week unpaid. The agency will be paying you way before the client pays the agency.

Also, are you acting as a temp-worker, expecting to be paid hourly or daily, or acting as a business taking some modicum of financial risk?

The restriction on returning as a direct client is what it's all about.

[Contreras]

I think #1 is the main one.

I insisted on being opted in once with an agency who didn't understand how it worked. They eventually came back and said that they were concerned because they had a clause in the upper contract which said that work had to be invoiced within six weeks of it happening or the client could refuse to pay. Because I wasn't opted out, I could invoice at any stage and the agency had to pay regardless of whether they got the money from the client or not.

Interesting. My experience is the opposite - agent insisting that I sign the opt out, claiming (and I think he believed it) that it was to do with IR35, then AWR, then after checking with his boss came back and said look we need you to sign otherwise the client can take you on direct and I lose my commission. My response: well are you making it a condition of the contract?, met with <silence> and it wasn't mentioned ever again after that.

What's funny is the client *did* want to cut out the agency for a follow-on contract on a different project but they had just taken on a new HR recruitment bod and she put the blocker on it saying the agency would hammer them for fees, even though I have reason to suspect they didn't even have an upper level contract in place.

[TheFaQQer]

Correct, they can vary the rate or other terms though.

+1

One agency offered me the worst possible contract if I insisted on being inside (references to me personally, personal liability, no RoS etc.) - if I opted out, then they would do an IR35-friendly contract.

Lots of arguments and they only backed down when I said "shall I ring the client and tell them not to expect me then?"

[TheFaQQer]

From - Opt-in, opt-out?Legal specialist Egos comments :: Contractor UK

1. No signed timesheet.
2. Restriction on going direct.
3. IR35.

The main reason agents are so keen to get an opt out is for #2, IMHO.

I think #1 is the main one.

I insisted on being opted in once with an agency who didn't understand how it worked. They eventually came back and said that they were concerned because they had a clause in the upper contract which said that work had to be invoiced within six weeks of it happening or the client could refuse to pay. Because I wasn't opted out, I could invoice at any stage and the agency had to pay regardless of whether they got the money from the client or not.

[Wanderer]

Just read this thread.

Very good. You should now read the opt out sticky too.

[northernladuk]

Correct, they can vary the rate or other terms though.

But we had a thread where Cojak checked with some body or another and they said the agency can refuse to deal with the contractor if they do not opt out. It is their choice how they run their business or something.

Problem is Sue Ellen also checked and got the opposite answer...

[Contreras]

Just read this thread.
It seems to be about technical subtleties.
And what the agencies recommend.

What are the salient facts about being opted-in or opted-out?
Does it have any bearing on your actual Ts&Cs, or indeed have any bearing on IR-35?

From - Opt-in, opt-out?Legal specialist Egos comments :: Contractor UK

1. No signed timesheet.
2. Restriction on going direct.
3. IR35.

The main reason agents are so keen to get an opt out is for #2, IMHO.

[Andy Hallett]

Regulation 32 (13) states that an employment agency/business cannot make the provision of its services conditional upon either the limited company or the worker to be supplied giving notice to opt out of the Regulations.

I know it happens but it is contrary to the Regulations!

Correct, they can vary the rate or other terms though.

[Taita]

Hi all,

I did search, and didn't find anything similar.

Essentially, the client is changing their Preferred agency and the new one are asking me to Opt-Out at this point.

I've been onsite for a few months already, so this was a bit of a surprise. (I opted in previously).

Just to complicate things, there is a consultancy firm between my self and the client's agency, i.e.:

me -> consultancy -> agency 2 -> client

I made the case that since I was onsite, I was already 'introduced' to the client, and therefore I couldn't opt out, but they are claiming that:

"[you] have not been working through [agency] so this is being asked before we work through them "

Is there anything in the regs around contracts switching between agencies?
Surely the introduction clause is to the end-client, rather than Agencies?

For comedy gold, here's some of the wording they use to 'convince' you to go outside:

"Some of our clients have already indicated a preference for us to supply contractors who have “opted-out” of the Conduct Regulations, because they are concerned that the quasi employment protection given by the Regulations may be detrimental to their interests"

"There is a concern that under the Conduct Regulations any contractor undertaking an assignment for a client who has not “opted-out” will be acting under the supervision and control of that client. "

"Please be aware that if you decide NOT to “opt-out” then we will need to meet with you at our offices to check original documentation and take copies for our records. "

Thanks for the help.

Regulation 32 (13) states that an employment agency/business cannot make the provision of its services conditional upon either the limited company or the worker to be supplied giving notice to opt out of the Regulations.

I know it happens but it is contrary to the Regulations!

[kevpuk]

<snip>or indeed have any bearing on IR-35?<snip>

Certainly nothing to do with IR35

Often the most salient point is about payment - Contractor does not get paid, because Agency has not been paid. Contract, via Agency, is between Contractor and Agency - whether Agency gets paid or not, should not be allowed to affect Contractor being paid.

[evilagent]

Just read this thread.
It seems to be about technical subtleties.
And what the agencies recommend.

What are the salient facts about being opted-in or opted-out?
Does it have any bearing on your actual Ts&Cs, or indeed have any bearing on IR-35?

[Andy Hallett]

Perhaps true, but what really matters is how the agency will treat the engagement. If the agency will proceed as if the contractor had successfully withdrawn the opt-out and treat the contractor as opted-in then it doesn't really matter what the actual legal position is, does it?

Correct. The regulations are very technical and there is often a lot of misinterpretaion and bluster used in respect of them.

[Wanderer]

You cannot 'Opt In' once supply has begun.

Perhaps true, but what really matters is how the agency will treat the engagement. If the agency will proceed as if the contractor had successfully withdrawn the opt-out and treat the contractor as opted-in then it doesn't really matter what the actual legal position is, does it?

[Andy Hallett]

I have opted out for current contract. Would like to opt in if contract extends. The procedure mentioned on the agency portal is to send them a notice in writing. I can send them a notice about 2 week before the current contract end date. In this case, suppose there is some delay in signing the new contract and I start working at client site, would that invalidate opt in ?

You cannot 'Opt In' once supply has begun.