Reply to: Contract - NOT opted out

[Hex]

That's what I do. When the agent sends me a form for opt out, I specifically sign and put the date when I signed. This makes the whole thing null and void, and the agent thinks he has got me sign the piece of paper which is null and void as I have signed it after being introduced to the client, and most often on the same day as singing the contract.

I am yet to see an agency who insists me signing an opt out form before letting me know the client or even interview.

But you are relying on a piece of the legislation that is unclear. It says before "Introduction or Supply". The agent will argue it was signed before you were supplied, you will argue it was signed after you were introduced. If the agency refuses to treat you as opted in you then have to go to court to get a decision and no-one has yet done this as far as I know otherwise we have clarification about what "Introduction or Supply" actually means.

I wouldn't feel comfortable presuming myself opted in on that basis.

[rd409]

Is there any reason why the OP shouldn't just sign the B2B contract and sign the opt-out? Start work with the client and then send a friendly note to the agent helpfully letting them know that you've just been advised that you are in fact opted in as the opt out was signed after being introduced to the client.

That's what I do. When the agent sends me a form for opt out, I specifically sign and put the date when I signed. This makes the whole thing null and void, and the agent thinks he has got me sign the piece of paper which is null and void as I have signed it after being introduced to the client, and most often on the same day as singing the contract.

I am yet to see an agency who insists me signing an opt out form before letting me know the client or even interview.

[Old Greg]

Is there any reason why the OP shouldn't just sign the B2B contract and sign the opt-out? Start work with the client and then send a friendly note to the agent helpfully letting them know that you've just been advised that you are in fact opted in as the opt out was signed after being introduced to the client.

[LisaContractorUmbrella]

If I have a contract which is obviously IR35 caught then I'm going to have an uphill battle proving I'm outside. And even if the working practices were outside, in 5 years time the client will say "Hmm, oh yes that guy. Yeah, he did some stuff for us. Was on a standard temporary worker contract like all the other temps we have in here, wasn't he. Yeah.". Or maybe the recruiting manager has now left and all the client has is the contract to refer to. The worker now has a real fight to prove that it was b2b rather than temp worker.

Spin it around the other way where you have a watertight b2b contract but you actually work as a permietractor at the client, HMRC now have the hill to climb with regards to proving that you were a "disguised employee". Client memories fade and they start giving vague answers, people move on, old emails get deleted. Time is on the contractor's side here and HMRC have the heavier burden of proof.

IR35 caught contracts also send the wrong message to clients. I'm not there to be assimilated into their company, I'm here to do business and they will respect this more if you make it clear you are in a b2b type relationship.

But then it doesn't matter either way if you work though an umbrella, does it.....

Good points well made and, no, it doesn't matter if you work through a brolly but I would still always advise people to make sure that their working practises are represented in the contract; it should not be the case that there are 2 contracts available for the same job, one inside and one outside, and they are interchangeable

[Hex]

If I have a contract which is obviously IR35 caught then I'm going to have an uphill battle proving I'm outside. And even if the working practices were outside, in 5 years time the client will say "Hmm, oh yes that guy. Yeah, he did some stuff for us. Was on a standard temporary worker contract like all the other temps we have in here, wasn't he. Yeah.". Or maybe the recruiting manager has now left and all the client has is the contract to refer to. The worker now has a real fight to prove that it was b2b rather than temp worker.

Spin it around the other way where you have a watertight b2b contract but you actually work as a permietractor at the client, HMRC now have the hill to climb with regards to proving that you were a "disguised employee". Client memories fade and they start giving vague answers, people move on, old emails get deleted. Time is on the contractor's side here and HMRC have the heavier burden of proof.

IR35 caught contracts also send the wrong message to clients. I'm not there to be assimilated into their company, I'm here to do business and they will respect this more if you make it clear you are in a b2b type relationship.

But then it doesn't matter either way if you work though an umbrella, does it.....

WHS

[Wanderer]

The working practises are pretty much set in stone - the client will know what he wants from a contractor and how he wants it done - you can write whatever you like in a contract but it won't change that

If I have a contract which is obviously IR35 caught then I'm going to have an uphill battle proving I'm outside. And even if the working practices were outside, in 5 years time the client will say "Hmm, oh yes that guy. Yeah, he did some stuff for us. Was on a standard temporary worker contract like all the other temps we have in here, wasn't he. Yeah.". Or maybe the recruiting manager has now left and all the client has is the contract to refer to. The worker now has a real fight to prove that it was b2b rather than temp worker.

Spin it around the other way where you have a watertight b2b contract but you actually work as a permietractor at the client, HMRC now have the hill to climb with regards to proving that you were a "disguised employee". Client memories fade and they start giving vague answers, people move on, old emails get deleted. Time is on the contractor's side here and HMRC have the heavier burden of proof.

IR35 caught contracts also send the wrong message to clients. I'm not there to be assimilated into their company, I'm here to do business and they will respect this more if you make it clear you are in a b2b type relationship.

But then it doesn't matter either way if you work though an umbrella, does it.....

[TykeMerc]

I can't see any reason for them to do this other than to spite the contractor.

It's a tactic to try and force contractors to Opt OUT, pure and simple. Agency managements hate contractors being opted IN as it means that they're screwed on the restrictive clauses and payment fronts plus in theory they have to do more ID verification work. The fact that opting out is entirely voluntary isn't even paid lip service by many agencies.

If you were to say up front when the agent first calls you about a role that you will be opting IN then the odds are very high that you wouldn't be put forwards at all.

[LisaContractorUmbrella]

Would you take the risk? With a dodgy contract but decent working practices? I wouldn't.

I'd far rather risk that than the other way round Mind you any reputable agency shouldn't issue a contract that isn't reflective of working practises

[Hex]

The working practises are pretty much set in stone - the client will know what he wants from a contractor and how he wants it done - you can write whatever you like in a contract but it won't change that

Would you take the risk? With a dodgy contract but decent working practices? I wouldn't.

[LisaContractorUmbrella]

This may be true if the contract is outside but the working practices put you inside. I doubt it's true if the contract puts you inside but your working practices put you outside. I would think that a temporary worker type contract with no substitution, explicit control and an obligation to turn up to work every day would make you inside even if the reality of the situation was different. It's certainly a much bigger risk than with a nice B2B contract and the same working practices, and it's not a risk I would take. The contract needs to be squeeky clean. The working practices can then follow.

The working practises are pretty much set in stone - the client will know what he wants from a contractor and how he wants it done - you can write whatever you like in a contract but it won't change that

[Hex]

I can't see any reason for them to do this other than to spite the contractor.

I don't know. Maybe that because of the extra stuff they have to do if you're opted in they want to tie you down more on the contract. Or maybe it's just a bargaining tool to persuade you to change your mind about opting in. But I have heard about this happening before.

I think taking a temporary worker contract to B&C or QDOS or one of the other contract reviewers is a waste of time. First thing to do is to talk to the agent about why the contract has changed in the way it has. Only go to contract reviewers once you've got the best you can from the agency.

The OP should not turn up on site either on Monday. If they do they will be working under the temporary worker contract. If you still have a copy of the B2B contract, then send it to the agent in an email and tell him this is the contract you will be working under on Monday. If you want to amend it to remove any reference to opting out of the agency regs then do that yourself. At least then you have stated the terms on which you are turning up to work on Monday.

[Hex]

With regard to IR35 it will be the contractor's working practises that determine his status and not what is written in the contract

This may be true if the contract is outside but the working practices put you inside. I doubt it's true if the contract puts you inside but your working practices put you outside. I would think that a temporary worker type contract with no substitution, explicit control and an obligation to turn up to work every day would make you inside even if the reality of the situation was different. It's certainly a much bigger risk than with a nice B2B contract and the same working practices, and it's not a risk I would take. The contract needs to be squeeky clean. The working practices can then follow.

[Wanderer]

This is quite common. If you opt out they give you a nice B2B contract which ticks all the outside IR35 boxes. If you opt in they give you a temporary worker type contract that makes you inside IR35.

I can't see any reason for them to do this other than to spite the contractor.

try telling them that you want to opt in but want the B2B contract and see what they say.

Good advice

[SueEllen]

I think this is the best thing to do. Can people recommend a good lawyer to go to? should I go to the job without a signed contract? (the client wants me to start on Monday!)

Thanks
Gamble

Talk to the client contact directly and tell them what the agency is up to.

State that you will start work as soon as your lawyer says you can because you are not insured otherwise.

[LisaContractorUmbrella]

This is quite common. If you opt out they give you a nice B2B contract which ticks all the outside IR35 boxes. If you opt in they give you a temporary worker type contract that makes you inside IR35.

I don't think there's much you can do about this apart from walk if you don't like it. You can try telling them that you want to opt in but want the B2B contract and see what they say.

With regard to IR35 it will be the contractor's working practises that determine his status and not what is written in the contract