Reply to: No payment until timesheets approved by client - IR35 ?

[SueEllen]

I spoke to two separate people at the Pay and Work Rights help line, and both stated that if you opt out then you are opted out from that point, regardless of whether you've already started work or not.

You can always read the law yourself as the Crown makes it freely available online. You just have to google it.

Then you can decide yourself whether people who are used to dealing with abused temps or lawyers who are use to drafting commercial contracts are correct.

[malvolio]

I spoke to two separate people at the Pay and Work Rights help line, and both stated that if you opt out then you are opted out from that point, regardless of whether you've already started work or not.

The usual advice given on forums or in contractor articles is what you stated, and this appears to be at odds with what I was told. So if the help line is incorrect then I'd dearly like to know.

Sorry if this is a bit off topic, but it tends to be wheeled out as a potential get out of jail free card in these sorts of discussions

What they didn't tell you was that this also means you will need a new contract: the regs have a direct influence on the contractual terms you need to meet the different states. The Agency may not be too happy about that...

If you read the PCG Guide to the Regs (tricky if you're not a member, but you should be anyway) it points out that the whole area of opting out in flight is very unclear, that a new contract is almost certainly required (hence, do it at renewal) and opting back in can be done at any time up to the commencement of work (under that contract, naturally). Also the guys on the desk wil be trained to deal with agency workers, not independent contractors.

But going back on your various posts, I say again that the opt out has sod all to do with what you're trying to acheive. But hey, it's your time you're wasting.

[Graemsay]

No you're not. By the most genreous interpretation it has to be done before contract commencement or at renewal. And the only change permitted is to opt back in. But that apart, that has absolutely nothing to do with timesheets, signed or not.

Before laying down the law, perhaps you should learn what it is.

I spoke to two separate people at the Pay and Work Rights help line, and both stated that if you opt out then you are opted out from that point, regardless of whether you've already started work or not.

The usual advice given on forums or in contractor articles is what you stated, and this appears to be at odds with what I was told. So if the help line is incorrect then I'd dearly like to know.

Sorry if this is a bit off topic, but it tends to be wheeled out as a potential get out of jail free card in these sorts of discussions

[SueEllen]

Didnt cojak put a thread up a little while ago about this that confirmed agents are doing nothing illegal be only putting forward opted out contractors for roles?

.

I got told the opposite.

Regardless of what we've been told it's foolish to accept such a clause in your contract.

If you don't have any legal knowledge get the contract reviewed before signing it and get clauses like that removed. One massive reason to use an agent is to factor payments so if they can't do that what use are they in the relationship?

[malvolio]

I've been checking up on this today, and if you sign an opt-out then you're opted out from that point even if you're already working for a client.

I'm currently having a non-signed timesheet issue of my own, and hence looking up threads.

No you're not. By the most genreous interpretation it has to be done before contract commencement or at renewal. And the only change permitted is to opt back in. But that apart, that has absolutely nothing to do with timesheets, signed or not.

Before laying down the law, perhaps you should learn what it is.

[Graemsay]

Was your opt out done in a valid manner (ie, before the introduction to the client)? If it wasn't then you should proceed as if you didn't opt out and the agent was obliged to pay you regardless of the timesheets. Raise an invoice and attach a note saying that despite your best efforts, the client has failed to set you up on their timekeeping system so you cannot provide timesheets. Make it clear to the agency that there is nothing to prevent them from verifying the time worked for the client and that you expect payment of the invoices on time or you will charge interest and penalties.

I've been checking up on this today, and if you sign an opt-out then you're opted out from that point even if you're already working for a client.

I'm currently having a non-signed timesheet issue of my own, and hence looking up threads.

[BolshieBastard]

Apart from not getting the contract if you don't sign the opt-out?

I agree with this. Its all well and good saying dont opt out but, when faced with 2 contractors for a role, one who says he'll opt out the other says he'll only opt in, which one is the agent going to put forward 99 times out of 100?

I'll give everyone a clue, the one who isnt opted in.

Didnt cojak put a thread up a little while ago about this that confirmed agents are doing nothing illegal be only putting forward opted out contractors for roles?

The point is, the opt in protection isnt there per se to deal with weekly timesheet signing issues. The opt in is to protect temporary workers where clients dont pay for work they have done full stop.

[malvolio]

Someone somewhere needs to distinguish between "not being paid until the agency is paid" and "not being paid until you prove the work has been done to standard". Neither is relevant to IR35. One is relevant to being opted in (except of course the case where if the agency hasn't got the money they can't pay you anyway...). One is relevant to being a contractor and operating a business.

I leave which is which as an exercise for the OP. They clearly need the practice.

[Contreras]

Was your opt out done in a valid manner (ie, before the introduction to the client)? If it wasn't then you should proceed as if you didn't opt out and the agent was obliged to pay you regardless of the timesheets. Raise an invoice and attach a note saying that despite your best efforts, the client has failed to set you up on their timekeeping system so you cannot provide timesheets. Make it clear to the agency that there is nothing to prevent them from verifying the time worked for the client and that you expect payment of the invoices on time or you will charge interest and penalties.

In the case here it seems the client has not (yet) refused to sign a paper timesheet. There the first thing panadol needs to do is take the initiative and ask the client to sign a paper timesheet.

It seems that 2 months have been worked without resolving the issue, and the original post is asking about IR35?

Until the client refuses to sign a paper timesheet, the opt out situation is not so relevant IMHO. And even then - according to the article by Roger Sinclair - being "not opted out" simply clarifies what was already the case to make it "less of an upwards struggle" in respect of non-payment for missing timesheets.

[cojak]

I opt-out, it's up to the individual contractor.

But I wouldn't leave it 2 months either. I wouldn't go in on Monday until they sort this out.

If I can't invoice I won't work.

[Ignis Fatuus]

...Roger Sinclair from Egos sums it up for me "Overall, I find it difficult to see that there is any sound commercial reason why a contractor providing services through an agency would wish to opt out of the new regulations." ...

Apart from not getting the contract if you don't sign the opt-out?

[Wanderer]

Conduct of employment regulations: a guide to opting in or out

"Although technically highly skilled contractors not controlled by their clients should not be covered by the regulations, most agencies still request that their contractors formally opt out."

So this article says people should sign away their statutory rights and this is OK because they are "highly skilled"? That piece was written by an agency I think.

Opting out has absolutely NOTHING to do with control as suggested in the article (or by implication, bad IR35 karma). The article you reference is just FUD spreading. Roger Sinclair from Egos sums it up for me "Overall, I find it difficult to see that there is any sound commercial reason why a contractor providing services through an agency would wish to opt out of the new regulations." Have a look in your contract, I'll betcha you have a 6 or 12 month restraint of trade preventing you from going to work for that same client or any related client too. Ooops, that wouldn't be there if you didn't opt out either.

OK, so lesson learned. Now how to deal with the situation at hand:

Was your opt out done in a valid manner (ie, before the introduction to the client)? If it wasn't then you should proceed as if you didn't opt out and the agent was obliged to pay you regardless of the timesheets. Raise an invoice and attach a note saying that despite your best efforts, the client has failed to set you up on their timekeeping system so you cannot provide timesheets. Make it clear to the agency that there is nothing to prevent them from verifying the time worked for the client and that you expect payment of the invoices on time or you will charge interest and penalties.

I don't like these new fangled time sheet systems because they are often tied in with budgets and clients can play silly buggers by not allocating your job code enough hours for you to book against meaning you can't do your timesheets and that makes it more difficult to get paid. As far as I'm concerned, I'm contracted to do a job and I do it, the client's internal project politics, budgeting and accounting difficulties should not become my problem.

Don't get into a long winded debate with the agency about who's problem it is or who's right and who's wrong or even what the contract says. Ultimately it's up to the client to sort this out but you want to rattle the agent's cage a bit so you have people pushing from all sides to get this problem sorted and get your cash flow going.

Good luck!

[panadol]

Yes, I expect my invoices to be paid before timesheet is approved. Depends if you are opted in or out and is main reason why I have stayed opted in.

Kaiser: apart from being opted in. Is there any mention of approved timesheets before payment in your contract?

[kaiser78]

Er, so you are expected your invoices to be paid before the client has confirmed you have

1, done the work
2, completed it to an acceptable standard?

Do you pay workmen who do work at your home in full before you've had a chance to inspect what they have done?

Yes, I expect my invoices to be paid before timesheet is approved. Depends if you are opted in or out and is main reason why I have stayed opted in.

[Contreras]

From what I've read here,
Conduct of employment regulations: a guide to opting in or out

"Although technically highly skilled contractors not controlled by their clients should not be covered by the regulations, most agencies still request that their contractors formally opt out."

(a bit side-tracked) I always formally opt-out, is that bad from payments perspective? Does it even matter considering the above point?

panadol, try this - Opt-in, opt-out?Legal specialist Egos comments :: Contractor UK

If you are "not opted out" then the agency cannot use lack of a signed timesheet as excuse for non-payment.

It does not follow that that the agency may not find some other reason to withhold payment. Nor does it follow that even if you are "opted out" that the agency can, without just reason, withhold payment for services that you genuinely provided under contract.

Put another way, if you did the hours then there is a right to expect payment, whether "opted out" or "not opted out". Obviously though, a timesheet signed by the client would be strong evidence to support your cause!

I would follow MyUserName's suggestion - create your own timesheet - and get the client's signature on it without further delay.