Reply to: Opting in\out

[tim123]

You cant just opt back in when you feel like it but when the contract us up for renewal.

MSB tried a fast one with me when they said I had to send them all the identification forms etc when my renewal came through and that it would be easier if I just opted out...I just told them they already know who I am and that Im not going to be wasting my time sending them information they already have

Mailman

I am taking about before you have signed the contract.

tim

[tim123]

Most people will only fight a case, and shell out the costs, if they think they can win. If the law clearly states that the agency has to pay owing to opting in regulations being in force, most would pay up and save themselves the bother.

There are many companies that don't do what is legally required before the steps of the court. Whether you think this is a sensible way to run a company or not, it happens - frequently!

tim

[Denny]

I think you are arguing this one backwards.

First off you are opted in unless you opt out.

Opting in requires far more paperwork on behalf of the agent and as such they would rather you opted out.

Since an offer of work can not be based on opting out this gives you the opportunity to negotiate some decent terms and conditions as a precursor to you opting out which would get you out of Ir35.

While you status under the agency regulations cannot effect your status under IR35 directly, opting out makes some options in getting out easier. for example substitution clauses are harder when opting in.

As for payment, opting out does not preclude the various legal forms of redress that are available to you when a client or agent refuses to pay the bill.

This is rubbish.

First of all, I said 'stay opted in' therefore your first point is completely benign.

Secondly, the rest of your argument is founded upon the false premis that there is such a thing as an 'IR35 friendly contract.' There isn't. If the working conditions do not match the contract wording then no amount of 'opting out friendliness' designed to exempt you from IR35 (not that there's any connection between the two) will make the slightest difference. How is a contractor going to know prior to interview at least or even before starting, if such issues are not discussed during the interview, what those working conditions are likely to be? All you seem to be doing is encouraging phoney contracts just to let you off the hook in terms of the risks involved of being a recruiter and pullling your finger out to do some work. This scares the tulip out of me, frankly, because its obviously that this same drivvel you are feeding your clients with that prompts them to encourage recruiters to force contractors to opt out in case they get lumbered with 'employee rights' claims. As we all know, the only reason an end-client could draw such conclusions is because they have been grossly misled in the first place.

Why shouldn't the agency do the paperwork, anyway? That's what they're supposed to do isn't it? Why should they get those huge mark ups and not earn their keep.

[zathras]

As I've said before opting out is pointless unless you're working conditions and contract are combined in a sort of IR35 limbo whereby the opting out form could be seen as a critical evaluator in the event of an investigation.

If you're clearly outside of IR35 or clearly inside, then there is only one way to go - stay opted in.

I think you are arguing this one backwards.

First off you are opted in unless you opt out.

Opting in requires far more paperwork on behalf of the agent and as such they would rather you opted out.

Since an offer of work can not be based on opting out this gives you the opportunity to negotiate some decent terms and conditions as a precursor to you opting out which would get you out of Ir35.

While you status under the agency regulations cannot effect your status under IR35 directly, opting out makes some options in getting out easier. for example substitution clauses are harder when opting in.

As for payment, opting out does not preclude the various legal forms of redress that are available to you when a client or agent refuses to pay the bill.

[Mailman]

Agreed, some agents might not be prepared to give you those terms, but the easy solution to that is, "OK I'll just opt back in then".

tim

You cant just opt back in when you feel like it but when the contract us up for renewal.

MSB tried a fast one with me when they said I had to send them all the identification forms etc when my renewal came through and that it would be easier if I just opted out...I just told them they already know who I am and that Im not going to be wasting my time sending them information they already have

Mailman

[Denny]

And how does it do this then? Perhaps a big foot come down from the sky and stamps on them if they don't do it?

Legislation cannot guarantee that a debt is paid. If the company are minded to chose to igone their contractual obligation to pay you, being opted in doesn't make one jot of difference. If you want your money, you have to sue them. I can't see that this is any different to if you are opted out.

tim

Most people will only fight a case, and shell out the costs, if they think they can win. If the law clearly states that the agency has to pay owing to opting in regulations being in force, most would pay up and save themselves the bother.

[tim123]

The death penalty doesnt stop people from murdering...however the laws are still there to protect those of us who are "law abiding" citizens.

Same can be said for the agency regulations. They wont stop someone from not paying you however the regulations do give you protection from dodgy bastards by placing certain restrictions on agents and leaving them in no doubt about their obligations to contractors.

Mailman

But this is my point. All the regs do is guarentee you contractual terms that you could actually negotiate for yourself. They don't guarentee you the payment, they just save you the bother of negotiating.

Agreed, some agents might not be prepared to give you those terms, but the easy solution to that is, "OK I'll just opt back in then".

tim

[Mailman]

The death penalty doesnt stop people from murdering...however the laws are still there to protect those of us who are "law abiding" citizens.

Same can be said for the agency regulations. They wont stop someone from not paying you however the regulations do give you protection from dodgy bastards by placing certain restrictions on agents and leaving them in no doubt about their obligations to contractors.

Mailman

[tim123]

You may want to actually read the legislation Tim. It provides guarantees that you will be paid
Mailman

And how does it do this then? Perhaps a big foot come down from the sky and stamps on them if they don't do it?

Legislation cannot guarantee that a debt is paid. If the company are minded to chose to igone their contractual obligation to pay you, being opted in doesn't make one jot of difference. If you want your money, you have to sue them. I can't see that this is any different to if you are opted out.

tim

[Denny]

You may want to actually read the legislation Tim. It provides guarantees that you will be paid and places prohibitions on agents from with holding those payments to you.

You may not consider it "a great big panacea" but still the legislation provides protection against some of the more dodgy actions out beloved agents like to pull over contractors.



This is true, however opting in gives the agents nothing to stand on if they try to hoodwink you out of your money!

Mailman

As I've said before opting out is pointless unless you're working conditions and contract are combined in a sort of IR35 limbo whereby the opting out form could be seen as a critical evaluator in the event of an investigation.

If you're clearly outside of IR35 or clearly inside, then there is only one way to go - stay opted in.

[Mailman]

No it doesn't. It merely makes contractual clauses requiring signed timesheets and prior payment by the client void. Frankly the first is hardly a great big panacea and even with an opted out contract, you should still make sure that you never agree to the second.

You may want to actually read the legislation Tim. It provides guarantees that you will be paid and places prohibitions on agents from with holding those payments to you.

You may not consider it "a great big panacea" but still the legislation provides protection against some of the more dodgy actions out beloved agents like to pull over contractors.

Whether opted in or out, if the agent doesn't pay you are still going to have to sue him and if he can't pay you are stuffed

tim

This is true, however opting in gives the agents nothing to stand on if they try to hoodwink you out of your money!

Mailman

[tim123]

I merely pointed out that legal redress would be harder to get and considerably costly, making it not worth the hassle or expense for the likely gains, if any. To my way of thinking that is tantamount to not able to get legal redress.

Sorry, the average contractor/agency dispute is going to be circa ten thousand pounds. The idea that one might write this off because of the need to collect evidence is silly.

I'm on record as saying that I think it is pointless going to law over compensation for minor breaches (such as late payment), but ignoring complete non payment is something that everybody should fight.

tim

[Denny]

And Mindy can fight her own battles and is doing so as we speak.

For the avoidance of doubt, my position is consistently stated as being:

• Opting either way has no effect on your real or percieved IR35 status and Hector is not interested in the subject anyway
• Opting out means the contract can contain clauses and arrangements that might aid an IR35 defence assuming the contract reflects the reality (yeah, right - see the next point)
• Agnets continually fail to provide contracts varied according to your opt-in or -out status, or even contracts that reflect reality
• Mailman doesn't understand any of the above
• Denny has the odd blind spot (just like I do, of course!)
• IT Contract Agent is in the wrong job

Hope that helps

Denny's interestingly naive idea that opting out of Agency regs takes you outside the cover of the legal system. I haven't bothered with Mailman's post because as usual he's talking bollocks about the subject.

I think that you're just being pedantic here. I didn't say that you couldn't get legal redress because you couldn't build a case, I merely pointed out that legal redress would be harder to get and considerably costly, making it not worth the hassle or expense for the likely gains, if any. To my way of thinking that is tantamount to not able to get legal redress. The DTI will not get involved in contractual issues, whether you've opted in or out.

Mailman does talk a lot of sense. He knows his stuff, just as I do.

Then you list most of the advice I have given anyway on IR35 and contracts, but are passing it off as your own thoughts and not a reflection of ours.

[IT contract agent]

but I've got mates Mal!

[malvolio]

No, don;t knock it, most agecy front men are resonably hard working salesmen. It's just I'd rather ost of them were selling services rather than product, and took a bit more notice of the real world.

BTW, Mr Agent, if you want to compare work/return ratios, I'm running around £120ph for a 30 hour week with two days a week at home.