Reply to: Opt Out

[Mailman]

The PCG fecked this one up good and proper!

Everyone knows being opted in or out doesnt change your legal status (ie. whether you are ir35 or not) BUT thanks to the PCG we are stuck in the situation where agents still screw people over by lieing to them about opting out.

BAh, I could rant for ages on this but Ill save you all this treat

Mailman

[Mordac]

Here's a link to the summary:
http://www.executivesonline.co.uk/ca.../Opt-out-guide

The key text is extracted below:

The opt-out for which PCG lobbied is covered in paragraph (9) of Clause 32 and reads as follows:
“(9) Subject to paragraph (12), paragraphs (1) - (8) shall not apply where a work-seeker which is a company, and the person who is or would be supplied by that work-seeker to carry out the work, agree that they should not apply, and give notice of that agreement to an employment business or agency, provided that such notice is given before the introduction or supply of the work-seeker or the person who would be supplied by the work-seeker to do the work, to the hirer.”

The bit in bold is the bit you need. Any opt-out signed after you started the contract is not valid, and you cannot be bound by it.

If you want a full copy of the regs, you can download them from the Egos website:
http://www.egos.co.uk/FAQ/CEA&EBR_2003_annotated.doc

[Mordac]

Perhaps you can provide a reference to your claim, so I can
use this later if necessary...

Thanks!

You could try googling for "agency regulations". I have a pdf copy but not with me today - there are plenty of electronic versions out there, one is on the DTI webtulipe but you might have trouble finding that one.

[Mailman]

There's a bloke (we think) called mailman who knows all about this, I am sure it wont be long before he plays his record on this again

On the other hand if you need an opinion on Thatcher then I'm your man

The second post pretty much covered everything i would have said in about 10 paragraphs

Mailman

[magister]

Perhaps you can provide a reference to your claim, so I can
use this later if necessary...

Thanks!

Believe it or not, the opt-out is therefore not legally valid. You can consider yourself opted-in, if you so wish. Forget about what you signed, it counts for nothing unless you signed before your introduction to the client.
Most (if not all) agents are so utterly clueless about these regulations it beggars belief. Perhaps if they took the time to read (and understand) them...

[Mordac]

Really!!?? What difference does it make it you opt-out after meeting
the client...this is what I did. I didn't Opt-Out until a week after starting
the contract.

Believe it or not, the opt-out is therefore not legally valid. You can consider yourself opted-in, if you so wish. Forget about what you signed, it counts for nothing unless you signed before your introduction to the client.
Most (if not all) agents are so utterly clueless about these regulations it beggars belief. Perhaps if they took the time to read (and understand) them...

[magister]

Magister, it's poor form to post the same question in multiple sections.

Yeah I know, sorry about that...I wasn't sure which forum to post to and wanted to get a quick answer.

[magister]

If you think the agent is a shark, and the relationship might deteriorate over time, and the contract is, or could turn out to be a long one then opt in. That will enable you to ditch the agency and get yourself payrolled by another supplier at a reduced margin (and reduced cost to the client, so there may be scope for a rate rise)

Well this agent is old school. He invited me for drinks after I got the contract but had not yet started. Now he is trying to track me down for lunch...

I am not used to an agent like that, most of them I never met...

He seems good enough and keeps telling me with the industry experience I get on this contract should open the door to other companies. So that is good, I
just wonder what kind of cut he is taking...

[magister]

I agree, although when opted in you can no longer have a clause that says you have to fix your mistakes at your own cost which is one of the IR35 silver bullets.

Personally, I tell the agency I'm opting out and get a B2B contract.

Oh, and you have to sign it before you're introduced to the client!!

Just my £0.02

Really!!?? What difference does it make it you opt-out after meeting
the client...this is what I did. I didn't Opt-Out until a week after starting
the contract.

[interested]

Hello,

I just started a new contract, which is the latest in a series spaning a couple or years. Usually I sign the opt-out agreement straight away, but there have been a couple of contract where I couldn't dump the agent and go direct and it meant the contract went dead.

The agency says I don't have to sign the opt-out but that I may compromise my IR35 status by doing so....

I wonder if anyone knows if this is actually the case or if this is just some bull they tell you to get you to sign it. Of course I dont' want to complicate IR35 but for some reason I think it might not make a difference.

Any advice or experiences welcome, I got to decide pretty soon.

Thanks,
Matt

If you think the agent is a shark, and the relationship might deteriorate over time, and the contract is, or could turn out to be a long one then opt in. That will enable you to ditch the agency and get yourself payrolled by another supplier at a reduced margin (and reduced cost to the client, so there may be scope for a rate rise)

[Pondlife]

They're lying. Opting in or out has no legal bearing on IR35 status. What counts is your contract (MOO, Control & Right of Substitution) allied to your actual working practices.

I agree, although when opted in you can no longer have a clause that says you have to fix your mistakes at your own cost which is one of the IR35 silver bullets.

Personally, I tell the agency I'm opting out and get a B2B contract.

Oh, and you have to sign it before you're introduced to the client!!

Just my £0.02

[DodgyAgent]

mailman

Hello,

I just started a new contract, which is the latest in a series spaning a couple or years. Usually I sign the opt-out agreement straight away, but there have been a couple of contract where I couldn't dump the agent and go direct and it meant the contract went dead.

The agency says I don't have to sign the opt-out but that I may compromise my IR35 status by doing so....

I wonder if anyone knows if this is actually the case or if this is just some bull they tell you to get you to sign it. Of course I dont' want to complicate IR35 but for some reason I think it might not make a difference.

Any advice or experiences welcome, I got to decide pretty soon.

Thanks,
Matt

There's a bloke (we think) called mailman who knows all about this, I am sure it wont be long before he plays his record on this again

On the other hand if you need an opinion on Thatcher then I'm your man

[ExpCont]

Hello,

I have previously spoken directly with the Inland Revenue and asked the question. The answer was that Conduct Regulations 2003 and IR35 have nothing to do with each other. By opting out does not improve your chances of avoiding IR35.

Please read my thread:
http://forums.contractoruk.com/thread7855.html

[The Master]

Magister, it's poor form to post the same question in multiple sections.

[Mordac]

The agency says I don't have to sign the opt-out but that I may compromise my IR35 status by doing so....

They're lying. Opting in or out has no legal bearing on IR35 status. What counts is your contract (MOO, Control & Right of Substitution) allied to your actual working practices.