Reply to: First contract: opting in or opting out from Employment Agencies Act

[NigelJK]

Rightly or wrongly this is how a lot of agencies do it so I thought it was helpful for people to be aware.

Not in my experience. These days (last 5 years or so) the contracts state if you are opted out then clause Y applies, otherwise clause Y applies. This does make for interesting reading. I always get my new contracts IR35 checked by my accountancy practice, who have speicalists for this kind of thing.

Just for clarity on handcuff clauses, the regs state that it's 12 weeks MAXIMUM before re-assignment, but 8 weeks recommended. This is the clause the agencies don't like. It has NOTHING to do with IR35 unless they make it so, as in your example. FWIW I would not sign either of your versions, in fact I wouldn't bother sending it for checking as they are too restrictive.

As has been said this has been done to death in the Professional forums.

[MrMarkyMark]

We’re not taking a stance, I was just pointing out a common fact relating to the written terms and conditions. On my desk now I have two versions of a contract from an agency; one ‘opt out’ and one ‘opt in’. The ‘opt out’ contract has strong substitution, control and non-MOO clauses whereas the ‘opt in’ version has none of that and even states that the contractor will be under the control of the client at the very top of the document. Rightly or wrongly this is how a lot of agencies do it so I thought it was helpful for people to be aware.

Obviously as you describe it there it would be an issue.

However that's due to an agency choosing to have different contracts, for opt in / opt out, not opting out per se.
Completely different thing.

Many times a contractor is given a contract which is the same in both instances.

[Qdos Contractor]

We’re not taking a stance, I was just pointing out a common fact relating to the written terms and conditions. On my desk now I have two versions of a contract from an agency; one ‘opt out’ and one ‘opt in’. The ‘opt out’ contract has strong substitution, control and non-MOO clauses whereas the ‘opt in’ version has none of that and even states that the contractor will be under the control of the client at the very top of the document. Rightly or wrongly this is how a lot of agencies do it so I thought it was helpful for people to be aware.

[Mordac]

Nah.

It is fine to sell your services as focused on IR35 but it makes new posters think the only thing they should be concerned about in a contract is IR35 when they should be concerned about all the clauses.

In addition I've had a few contracts now where the agent hasn't bothered with the opt-in/opt-out nonsense because of the wishes of the end-client. Instead they have had to concentrate on ensuring the terms of the contract are business-to-business.

Added to that is the fact there are sectors where you legally cannot opt-out so according to QDOS stance that means you are under IR35. When in fact the only reason you can't opt-out is that you are providing computer-related services to a client who deals with children, the elderly or the vulnerable so you have to be background checked.

Several very good points very well argued. Although I believe (probably in hope more than expectation) that CRB checks are not conditional on whether the candidate is "in" or "out" for the purposes of this discussion.

[NigelJK]

+1 to all Sue has said. I'll also add that there is NO 'opt in' this is agency flim flam to make you think there's a option. For them there isn't an option, they HAVE to abide by the regulations, unless you tell them you're happy for them to act how they wish (exactly why the regulations were brought in in the first place). Look out for long handcuff clauses etc etc. IR35 is an old ruse, I wish they'd STFU and find something else to scare the newbies with.

[SueEllen]

Someone upset you dear?

Nah.

It is fine to sell your services as focused on IR35 but it makes new posters think the only thing they should be concerned about in a contract is IR35 when they should be concerned about all the clauses.

In addition I've had a few contracts now where the agent hasn't bothered with the opt-in/opt-out nonsense because of the wishes of the end-client. Instead they have had to concentrate on ensuring the terms of the contract are business-to-business.

Added to that is the fact there are sectors where you legally cannot opt-out so according to QDOS stance that means you are under IR35. When in fact the only reason you can't opt-out is that you are providing computer-related services to a client who deals with children, the elderly or the vulnerable so you have to be background checked.

[FatLazyContractor]

Yep, you would have. I tend to find life is generally easier if one avoids upsetting a pre-menstrual female.

FTFY

[Mordac]

I'd have asked a different question, if it was me.

Yep, you would have. I tend to find life is generally easier if one avoids upsetting a pre-menstrual female.

[FatLazyContractor]

Someone upset you dear?

I'd have asked a different question, if it was me.

[Mordac]

Luckily then I don't get my contract reviewed by you.

Someone upset you dear?

[SueEllen]

Ouch.

This is General I'm allowed to be rude.

[northernladuk]

Luckily then I don't get my contract reviewed by you.

Ouch.

[SueEllen]

SueEllen – My comments are based solely from an IR35 perspective. The concept of ‘opting in’ or ‘opting out’ is unlikely to have a direct impact on IR35 status and isn’t a conclusive issue. However from our experience of reviewing contracts, “opt in” contract terms often do not cover positively key tests, and it can be perceived that the contractor should be operating inside of IR35.

That being said all agreements should be viewed on their own merits.

Jon

Luckily then I don't get my contract reviewed by you.

[Qdos Contractor]

SueEllen – My comments are based solely from an IR35 perspective. The concept of ‘opting in’ or ‘opting out’ is unlikely to have a direct impact on IR35 status and isn’t a conclusive issue. However from our experience of reviewing contracts, “opt in” contract terms often do not cover positively key tests, and it can be perceived that the contractor should be operating inside of IR35.

That being said all agreements should be viewed on their own merits.

Jon

[northernladuk]

tulip's just got real....