Reply to: Going direct back to old client - how long can agency tie in for (NOT OPTED OUT)

[psychocandy]

You can't help but suspect that agents are being disingenuous when they suggest that they don't understand a law which has regulated their industry for over 10 years....

A friend was doing business with an agency a while ago and asked that they send her a contract with all the references to "opt out" removed. In fact, she had to get it revised a few times because they kept "accidentally missing" references to the opt out which needed to be removed, then denying that the references were there until they were painstakingly taken through it step by step.

The agent then changed tack and innocently asked why she didn't want to opt out. She just said that she chose not to, that was her prerogative as a director and she didn't want to enter into a debate about it.

So the agent launched into a bunch of provocative questions about what the agency conduct regulations were all about because he didn't know because no one in his experience had ever failed to opt out and he would have to speak to his legal team about this. Agent even went as far as waffling on that his understanding was that a contractor would be an employee of the agency on PAYE if they didn't opt out and he would have to report them to HMRC for IR35 investigation.

Looking up the agent up on linked-in and companies house and it transpires that he had over 20 years experience in recruitment and was the director of the Employment Business.

Yep. Seems to be a common tactic. At first, bulltulip about it and IR35 then if this fails claim you don't really understand it anyway.

I find that if they realise you know the score they dont push it. But, as I'm sure someone has said before, if an agent really pushes it, its sometimes not worth the hassle or losing a gig or even delaying it by a few days just because of the opt out.

Yeh, I know they're not allowed to do it, report them etc but, at the end of the day, its all well and good being right but you want the gig.

[Wanderer]

I suspect that the agency haven't either.

You can't help but suspect that agents are being disingenuous when they suggest that they don't understand a law which has regulated their industry for over 10 years....

A friend was doing business with an agency a while ago and asked that they send her a contract with all the references to "opt out" removed. In fact, she had to get it revised a few times because they kept "accidentally missing" references to the opt out which needed to be removed, then denying that the references were there until they were painstakingly taken through it step by step.

The agent then changed tack and innocently asked why she didn't want to opt out. She just said that she chose not to, that was her prerogative as a director and she didn't want to enter into a debate about it.

So the agent launched into a bunch of provocative questions about what the agency conduct regulations were all about because he didn't know because no one in his experience had ever failed to opt out and he would have to speak to his legal team about this. Agent even went as far as waffling on that his understanding was that a contractor would be an employee of the agency on PAYE if they didn't opt out and he would have to report them to HMRC for IR35 investigation.

Looking up the agent up on linked-in and companies house and it transpires that he had over 20 years experience in recruitment and was the director of the Employment Business.

[DirtyDog]

Better have a quick look I guess because client aint got a clue.

I suspect that the agency haven't either.

[SueEllen]

Better have a quick look I guess because client aint got a clue.

FUD

[psychocandy]

Yes, they are a bit of an insomnia cure.

The relevant part of the Agency Conduct Regulations is Section 10 which is entitled Restriction on charges to hirers and states that a restriction or temp-to-perm fee is unenforceable beyond 14 weeks from the start or 8 weeks from the end of the contract (whichever is longer).

And sorry for calling people bedwetters, I was having a bit of a grumpy moment.

Better have a quick look I guess because client aint got a clue.

[Wanderer]

Did you read the regulations before you posted? (That's not actually a dig by the way because its like wadding through treacle)....

Yes, they are a bit of an insomnia cure.

The relevant part of the Agency Conduct Regulations is Section 10 which is entitled Restriction on charges to hirers and states that a restriction or temp-to-perm fee is unenforceable beyond 14 weeks from the start or 8 weeks from the end of the contract (whichever is longer).

And sorry for calling people bedwetters, I was having a bit of a grumpy moment.

[d000hg]

Words fail me.

Go on, give it a go.

[psychocandy]

Did you read the regulations before you posted? (That's not actually a dig by the way because its like wadding through treacle)....

no i aint :-)

[DirtyDog]

100% sure on that? I thought it only applied to relationship between worker (contractor) and agency?

I had exactly the same thought - I've read the regulations a number of times before, in full, as well.

However, looking around the web, there is a good summary on Freelance Advisor:

Temp-to-perm fees and temp-to-temp fees

• These can be charged as long as the hirer has first had the option to have the worker supplied by the Business for a set period of hire. After this the worker can transfer without a fee. There is no time limit for the extended period of hire. The worker must be provided for all of the set period for hire, unless the Employment Business is prevented from doing this for reasons that aren’t their own fault.
• These can only be charged when the ‘transfer’ takes place within either 14 weeks of the start of the first assignment with the hirer or 8 weeks of the end of any assignment (whichever is the later date). Otherwise the end-hirer does not need to pay a transfer fee. If the worker has been on more than one assignment with a break of more than 42 days between assignment, the 14 week period starts again.

I don't think it's a case of people bending over to appease agencies, or bed wetting - it's a common misunderstanding about the regulations.

[eek]

100% sure on that? I thought it only applied to relationship between worker (contractor) and agency?

Did you read the regulations before you posted? (That's not actually a dig by the way because its like wadding through treacle)....

[psychocandy]

If you don't opt out then the maximum restriction is 14 weeks from the start or 8 weeks from the end of the contract (whichever is later). This is a statutory right, nothing in any contract with any party (other than an opt out by the worker) can change this. End of story.



No, that is totally wrong. There are far too many bed wetters on this forum who would have us believe nonsense like this. I really don't know why people are so desperate to bend over and be shafted by agencies.

Listen carefully folks. The law regulates the way an Employment Agency or Employment Businesses operates and it applies equally to the Agency's business dealings with the client as it does to the dealings with the contractor.

100% sure on that? I thought it only applied to relationship between worker (contractor) and agency?

[Wanderer]

Which is why agencies really, really want you to opt out......

One of several reasons.....

[eek]

If you don't opt out then the maximum restriction is 14 weeks from the start or 8 weeks from the end of the contract (whichever is later). This is a statutory right, nothing in any contract with any party (other than an opt out by the worker) can change this. End of story.



No, that is totally wrong. There are far too many bed wetters on this forum who would have us believe nonsense like this. I really don't know why people are so desperate to bend over and be shafted by agencies.

Listen carefully folks. The law regulates the way an Employment Agency or Employment Businesses operates and it applies equally to the Agency's business dealings with the client as it does to the dealings with the contractor.

Which is why agencies really, really want you to opt out......

[Wanderer]

If you don't opt out then the maximum restriction is 14 weeks from the start or 8 weeks from the end of the contract (whichever is later). This is a statutory right, nothing in any contract with any party (other than an opt out by the worker) can change this. End of story.

whereas I might be free to do as I wish client may not. I can sign a contract now direct with any client I wish but this does not mean there is not something in the client-agency contract preventing them from doing so?

No, that is totally wrong. There are far too many bed wetters on this forum who would have us believe nonsense like this. I really don't know why people are so desperate to bend over and be shafted by agencies.

Listen carefully folks. The law regulates the way an Employment Agency or Employment Businesses operates and it applies equally to the Agency's business dealings with the client as it does to the dealings with the contractor.

[DirtyDog]

Point being though whereas I might be free to do as I wish client may not. I can sign a contract now direct with any client I wish but this does not mean there is not something in the client-agency contract preventing them from doing so?

Exactly that. Unless the client can get out of any restriction, you having a shorter restriction is irrelevant.