Reply to: Possible to change agencies before signing the contract once you're in the client?

[Wanderer]

Are you sure this applies to businesses? The agent is looking to contract your LTD so wouldn't that mean you are not a work seeker and therefore this not apply?

I'm pretty sure but I could be completely wrong so let's have a read of the Agency Conduct Regulations section 32 and see. So, the opening line says:

32.—(1) Subject to paragraph (9), in these Regulations—
(a)any reference to a work-seeker, howsoever described, includes a work-seeker which is a company;

Secondly, section 32(9) (the opt out) states.

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

So for any company (big or small) that engages a client though an employment business (a legally defined term in the Employment Agencies Act 1973) there must be an opt out agreed by both the company and the worker.

[northernladuk]

Indeed, but all this is hypothetical now in your situation.

[mickael28]

As you say, I think different people have different views so at the end it's up to us to decide what we think it's better for us.

I liked the recommendations of a contractors' lawyer (who seem to have been exercising since 1973 and specialised in IT contractors since 1994):
Opt-in, opt-out?Legal specialist Egos comments :: Contractor UK

where his conclusion was:
"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."

Thanks for the links, I'll have a read later on.

[northernladuk]

I've been in contact with QDOS regarding the initial opt-out contract and the wish that I preferred to have an opt-in version, but they didn't suggest that I opt-out, they said that's up to me really.

Why would they suggest that?

Because it is your business and up to you what you do with it. I presume they believe opting out of something that was designed for agency workers looks better for IR35 but that hasn't been proven and is arguable. Roger Sinclair or ERGOS says it probably won't make much difference.

If they suggest opt in and you lose the contract fighting it you are gonna be banging their door down as well so won't be giving you a definitive answer I guess.

Ask them which of the two options they would think best to see if they will go one way or the other. You have indicated you want to Opt In so have fed them information. Try it without any hint of what you want to do.

[northernladuk]

I've been in contact with QDOS regarding the initial opt-out contract and the wish that I preferred to have an opt-in version, but they didn't suggest that I opt-out, they said that's up to me really.

Why would they suggest that?

Because it is designed to protect vulnerable workers... which we are not..

Contractor Jargon Buster - Qdos Freelancer Shop

Opt Out - The Conduct of Employment Regulations

Limited company contractors working through agencies will be asked to ‘opt in’ or ‘opt out’ of these regulations. The purpose of these regulations is effectively to protect vulnerable workers and the vast majority of contractors will simply opt out.

and this thread has an interesting comment on QDOS..

http://forums.contractoruk.com/busin...ml#post1417039

[mickael28]

I presume the second pretty stupid thing you did is to start without QDOS reviewing your contract? They will suggest you Opt Out.

I've been in contact with QDOS regarding the initial opt-out contract and the wish that I preferred to have an opt-in version, but they didn't suggest that I opt-out, they said that's up to me really.

Why would they suggest that?

[northernladuk]

If they are a REC member then file a complaint with the REC and say that it's illegal for the agency to force you to opt out section 32(13) and see what they say.

Are you sure this applies to businesses? The agent is looking to contract your LTD so wouldn't that mean you are not a work seeker and therefore this not apply?

[northernladuk]

The main point of calling them 'unprofessional' is the fact that's taking them over 1 month to change from opt-out to opt-in contract. If you think that's the way of doing things, then I'd be happy offering any service to you and charging by my professional services over-estimated like 1000 times :P

The are not obliged to give you an opt in contract. There is an argument rumbling on if you read the Opt in/out thread. Cojak has a mail saying that it is not illegal for them not to give you an Opt In contract. If they want to only deal with Opt Out contractors then they can. I presume the second pretty stupid thing you did is to start without QDOS reviewing your contract? They will suggest you Opt Out.

It isn't catch-22 at all. It is a negotiation. You start the contract with a signed contract to your terms or you don't. That is the bottom line. Starting without anything signed is just stupid. Although you are now opted in by default the only way you are gonna prove this is if it goes legal. The agency are going to be convinced you are opted out and will treat you as if you are. If you ever do need to fall back on the opt in option you are in for a world of pain.. which is why you don't start before you sign. The whole idea of the contract is to agree terms before work.

[Wanderer]

I'll see if they can give me an opt-in version in a couple of days

It's unlikely they will give you an opted in contract now. You should probably just sign what you've got (because you've accepted it by starting work anyway) and get paid.

Have they put it in writing to you that you must opt out? Try and get it in writing and then report them to the PCG.

If they are a REC member then file a complaint with the REC and say that it's illegal for the agency to force you to opt out section 32(13) and see what they say.

[northernladuk]

3. All agents are unprofessional to some extent. Deal with it.

A) That just isn't true...
B) And you wonder why some are when their contractors are just as bad?

[psychocandy]

I see, thank you Sir!

I'll see if they can give me an opt-in version in a couple of days (at least, so that they've got it drafted for the next person) or I'll sign the opt-out version this time.

I get your point about unprofessional, but this is a catch-22 situation, if you try to sort all this out correctly before starting a contract, then you might be out of contract more than you're able to, as there's other people who just sign contracts straight away and agencies will avoid to spend too much time drafting new clauses etc.

The main point of calling them 'unprofessional' is the fact that's taking them over 1 month to change from opt-out to opt-in contract. If you think that's the way of doing things, then I'd be happy offering any service to you and charging by my professional services over-estimated like 1000 times :P

The agency will tell you this but, in reality, MOST contractors will not start work without it being sorted properly. Look at this way, client wants you, they made a decision. They might be slightly peeved (they usually are because they think you can offer friday start monday) but in reality they'll wait a few days. Then up to agency to pull their finger out.

As for the agency taking ages thing - again, you started without contract. They've got you in there now and they've got their billing going with the client so they've got money coming in. They don't care about the fine details with you now. Its low priority.

Again, if you'd insisted this was all sorted BEFORE you started it would have focused their attention somewhat.

[psychocandy]

Oh dear, oh dear, oh dear.

What NLUK says. Too late now contract is implied since you started. Might as well just sign whatever it is now anyway to, at least get paid.

Bonus as NLUK says is you've started so at least the opt out won't matter so might as well sign it to shut them up.

Go with another agency. Are you serious? A few points:-

1. Initial agency ain't gonna go with that AT ALL? They get the business and you think you can just shortcut them out of the loop just because you don't like them. Not going to happen.

2. You'd have to get the client to agree to this as well. Remember their contract is with the agent not you. Chances are they won't be bothered. Just because you're whinging about the agency is of no concern to the client. If you go on about it they'll just get pissed off.

3. All agents are unprofessional to some extent. Deal with it.

[mickael28]

I see, thank you Sir!

I'll see if they can give me an opt-in version in a couple of days (at least, so that they've got it drafted for the next person) or I'll sign the opt-out version this time.

I get your point about unprofessional, but this is a catch-22 situation, if you try to sort all this out correctly before starting a contract, then you might be out of contract more than you're able to, as there's other people who just sign contracts straight away and agencies will avoid to spend too much time drafting new clauses etc.

The main point of calling them 'unprofessional' is the fact that's taking them over 1 month to change from opt-out to opt-in contract. If you think that's the way of doing things, then I'd be happy offering any service to you and charging by my professional services over-estimated like 1000 times :P

[Wanderer]

agency didn't want to give me an opt-in contract, it's taking them over 1 month and still chasing them.

Since you have started work without signing an opt out or a contract, you cannot opt out now. The agency will think you can but the law is clear on this point now and their arguments will not stand up in court.

Just sign the opt out contract. The fact you are working with client means it is invalid now and you are opted in anyway so it doesn't matter any more.

Agree with that. Although the contract terms will be difficult to renegotiate after work has started, it has actually turned out to be a good move because he can't opt out now.

[northernladuk]

Nope, you have been stupid enough to start so you don't have a leg to stand on regarding contracts. By starting you have an implied contract so if any of the ones you have seen have a handcuff clause in, which they will, then you are bound by that. Any attempt to leave the agency will put them at a financial loss they are in a strong position to charge you or the client for their loses....

Just sign the opt out contract. The fact you are working with client means it is invalid now and you are opted in anyway so it doesn't matter any more.

You start a gig with no contract and call the agency unprofessional???