Reply to: Agency Opt Out Hassle

[SueEllen]

The new contract is quite different. It still mentions needing signed timesheets which I believe are not necessary if you opt in, but I'm happy to leave that in as an unenforceable clause.

The signed timesheets are for the agency purposes they generally can't invoice their client if they don't have them.

This is different from the fact they can't pay your company.

[Copt Out]

How does the new contract compare? does it resemble the original? I am having the same issues!!!

Sue Ellen,

I have been a contractor for many years - when I asked about the holiday pay I didn't mean that I wasn't sure whether I would be paid by the agency for holidays!! (I know that isn't going to happen!) The agency mentioned that they have to account for holiday pay in their calculations if you are opted in but the B2B invoicing etc. doesn't change if opted in or out.

I was just wondering if in the final analysis this makes a difference to IR35 - having read all the bumpf it doesn't sound like it does but I just wanted to make sure that the agency FUD was just that on this point.

Gamble 1234,

The new contract is quite different. It still mentions needing signed timesheets which I believe are not necessary if you opt in, but I'm happy to leave that in as an unenforceable clause.

[gamble1234]

After talking to 2 other agencies - the original agency have said the other 2 agencies won't do opt in contracts either. I then talked to one of the other 2 agencies and they said they would do opt in! Therefore the original agency has lied to me - surprise, surprise.

The original agency is now splitting it's rate 50/50 between itself and the agency that would let me opt in. Ridiculous state of affairs but it's nearly sorted! The new agency mentioned something about accounting for holiday pay but said that this would not affect the way I invoice them. What is this? Is it part of the agency regs and should I be worried? I don't like the mention of holiday pay as this smacks of IR35.

How does the new contract compare? does it resemble the original? I am having the same issues!!!

[SueEllen]

Yeah, I was giving them the benefit of the doubt for a while but I'm starting to wonder if they are being deliberately obtuse - how is something that seems quite clear to us is so difficult for agents and their legal departments to understand.

When an agency says "legal department" it could be anyone i.e. their boss, an agency administrator or a forum like this.

Those who actually use a solicitor will tend to use the word "solicitor".

One agent I actually had an issue with admitted to using an industry forum. Unfortunately for them I was actually using a solicitor.......

[SueEllen]

After talking to 2 other agencies - the original agency have said the other 2 agencies won't do opt in contracts either. I then talked to one of the other 2 agencies and they said they would do opt in! Therefore the original agency has lied to me - surprise, surprise.

The original agency is now splitting it's rate 50/50 between itself and the agency that would let me opt in. Ridiculous state of affairs but it's nearly sorted! The new agency mentioned something about accounting for holiday pay but said that this would not affect the way I invoice them. What is this? Is it part of the agency regs and should I be worried? I don't like the mention of holiday pay as this smacks of IR35.

While I'm aware the agency is using FUD tactics on you, you are asking a lot of questions which if you read the guides on linked to from the CUK navigation panel on the right you wouldn't need to ask.

You don't get holiday pay.*

Now go and read the guides, and if the agency comes up with something else stupid just ignore them.

*Not strictly correct but if your company gives you holiday pay it is nothing to do with the agencies involved. As it's a B2B contract not a personal to business contract.

[Copt Out]

There is only one way to opt out and that is "for the worker and the limited company to agree that the conduct of employment agencies and employment business regulations will not apply to this engagement". If you don't opt out or withdraw the opt out before you start work then clauses which contradict the regulations will be held to be unenforceable. That won't stop the agency trying to bluff their way through it though. There is no reason for an opted-out contract to differ from a non-opted out contract.

If the agency wants to play dirty then sign your life away with the opted out contract and then withdraw the opt out (by fax/email and followed up with a "signed for" copy of the letter) just before you start working for the client. The agency will tell you that you are still opted out, don't make any comment on this, just let them think you are opted out and they will be happy. Alternatively, it could all blow up in your face and the agency will withdraw the contract.



You can't always get away with this. If you are presented with a written contract which is signed by the agency then my understanding is that you can't make changes to it unless the agency agrees to reissue the contract OR they counter sign the amendments and return the contract to you. If the contract is unsigned then you may get away with arguing that this was part of the contract negotiations and they didn't have to accept it (but they did by allowing you to start work). Definitely shaky legal ground in my view.



Yeah, I was giving them the benefit of the doubt for a while but I'm starting to wonder if they are being deliberately obtuse - how is something that seems quite clear to us is so difficult for agents and their legal departments to understand.



Agreed. The PCG do good stuff but this was a massive own goal. The worst of it is that they can't be seen to lose face by bluntly recommending that people refuse to opt-out unless they are certain that they know what they are doing. Nor can they go on the attack against agencies for abusing the opt-out because it will be met with howls of derision usually reserved for the debating chamber at the house of commons. Sad state of affairs really.

After talking to 2 other agencies - the original agency have said the other 2 agencies won't do opt in contracts either. I then talked to one of the other 2 agencies and they said they would do opt in! Therefore the original agency has lied to me - surprise, surprise.

The original agency is now splitting it's rate 50/50 between itself and the agency that would let me opt in. Ridiculous state of affairs but it's nearly sorted! The new agency mentioned something about accounting for holiday pay but said that this would not affect the way I invoice them. What is this? Is it part of the agency regs and should I be worried? I don't like the mention of holiday pay as this smacks of IR35.

[Wanderer]

There isn't a separate opt out. The opt out is a series of clauses in the contract. Does the opt out have to be in a separate document?

There is only one way to opt out and that is "for the worker and the limited company to agree that the conduct of employment agencies and employment business regulations will not apply to this engagement". If you don't opt out or withdraw the opt out before you start work then clauses which contradict the regulations will be held to be unenforceable. That won't stop the agency trying to bluff their way through it though. There is no reason for an opted-out contract to differ from a non-opted out contract.

If the agency wants to play dirty then sign your life away with the opted out contract and then withdraw the opt out (by fax/email and followed up with a "signed for" copy of the letter) just before you start working for the client. The agency will tell you that you are still opted out, don't make any comment on this, just let them think you are opted out and they will be happy. Alternatively, it could all blow up in your face and the agency will withdraw the contract.

Unfortunately I've had this type of hassle myself with agents (as have many of us I expect) and in this situation I would simply red pen the Opt Out clauses, initial them and send it in.

You can't always get away with this. If you are presented with a written contract which is signed by the agency then my understanding is that you can't make changes to it unless the agency agrees to reissue the contract OR they counter sign the amendments and return the contract to you. If the contract is unsigned then you may get away with arguing that this was part of the contract negotiations and they didn't have to accept it (but they did by allowing you to start work). Definitely shaky legal ground in my view.

It's an unfortunate fact that many agents haven't a clue what the opt out is and they're told by their management to secure one at all costs

Yeah, I was giving them the benefit of the doubt for a while but I'm starting to wonder if they are being deliberately obtuse - how is something that seems quite clear to us is so difficult for agents and their legal departments to understand.

I genuinely wish the PCG hadn't used their efforts to get it written into the regulations as it's a complete farce.

Agreed. The PCG do good stuff but this was a massive own goal. The worst of it is that they can't be seen to lose face by bluntly recommending that people refuse to opt-out unless they are certain that they know what they are doing. Nor can they go on the attack against agencies for abusing the opt-out because it will be met with howls of derision usually reserved for the debating chamber at the house of commons. Sad state of affairs really.

[SueEllen]

I think the Opt out has to be signed by you personally and also by someone on behalf of your company. It is therefore not usual for it to be part of the contract itself as you wouldn't usually sign this in a personal capacity.

I guess you could cross out the opt out bits, sign it and then send it back to them.

The agencies where I've had the contacts with stating that certain clauses only apply if you are opted-out send a separate opt-out letter for me to sign on behalf of myself personally, and as the director of the limited.

(This is actually what the PCG advised at one point that the opt-out is a separate letter.)

I ignore this letter simply because by that time I have met the client, the client knows who I am and hires me via the limited I'm one of the directors off.

If the contract doesn't clearly state that it doesn't apply to you if you are not opted-out then it needs to be redrafted particularly if the contract is written in such away that opt-out appears all over the contract.

[SueEllen]

My understanding was that it has to be in a separate document which obviously differs from SueEllen's view, I don't know for an absolute fact which is correct.

Sorry the original question wasn't clear.

I thought the poster meant that he has a contract which contains clauses that cover you if you are opted-out.

My own contracts few quite a few agencies state that certain clauses only apply if you are opted-out. As I'm opted-in I the claues don't apply to me.

[TykeMerc]

There isn't a separate opt out. The opt out is a series of clauses in the contract. Does the opt out have to be in a separate document?

My understanding was that it has to be in a separate document which obviously differs from SueEllen's view, I don't know for an absolute fact which is correct.

Unfortunately I've had this type of hassle myself with agents (as have many of us I expect) and in this situation I would simply red pen the Opt Out clauses, initial them and send it in. The last time I did that they sent out a separate doc which they were still occasionally asking to have back at the end of the contract.
It's an unfortunate fact that many agents haven't a clue what the opt out is and they're told by their management to secure one at all costs, I genuinely wish the PCG hadn't used their efforts to get it written into the regulations as it's a complete farce.

[Hex]

There isn't a separate opt out. The opt out is a series of clauses in the contract. Does the opt out have to be in a separate document?

I think the Opt out has to be signed by you personally and also by someone on behalf of your company. It is therefore not usual for it to be part of the contract itself as you wouldn't usually sign this in a personal capacity.

I guess you could cross out the opt out bits, sign it and then send it back to them.

[SueEllen]

There isn't a separate opt out. The opt out is a series of clauses in the contract. Does the opt out have to be in a separate document?

No.

The contract can be one contract as long as it states clearly that if you are opted-out these clauses apply.

If it doesn't then you need to find someone to redraft the contract to make it clear those clauses don't apply to you.

If you do a search using the useful search facility, review companies and lawyers names will come up. However I can't recommend anyone as the person I tend to use is in a long holiday.

[Copt Out]

Is this a problem that is seen more generally?

Is it then a sensible precaution to act like you will sign the opt out (so you at least get a look at a decent b2b contract) then just fail to sign the opt out or at least get further down the line before making a fuss etc?

There isn't a separate opt out. The opt out is a series of clauses in the contract. Does the opt out have to be in a separate document?

[fragglerock]

Is this a problem that is seen more generally?

Is it then a sensible precaution to act like you will sign the opt out (so you at least get a look at a decent b2b contract) then just fail to sign the opt out or at least get further down the line before making a fuss etc?

[Hex]

If I sign with the original agency presumably I'm opted in automatically no matter what the contract says as they've already introduced me to the client?

The trouble with doing this is that this is unclear in the regulations as pointed out by Wanderer above. A lot of people believe this is the case, but it's never been tested in court as far as I know. Whether you can't opt out after "Introduction or Supply" means that the agent can say it's after Supply not Introduction. You have to decide how to interpret it.

Your safest bet is to withdraw your opt out. How about amending the contract and remove the offending sections (if the contract referes to opting out) and then send it back to the agent telling them you are opted in? If the contract doesn't say anything about opting out then you coudl sign the contract and send the agent a letter saying you are withdrawing any opt out as Wanderer has suggested above.