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Agency trick with Opt out of Conduct of employment agencies 2003 act

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    Agency trick with Opt out of Conduct of employment agencies 2003 act

    While umbrellas are being grilled at the moment for their handling of holiday pay, I thought I'd mention another dirty trick I'm surprised my latest agency/umbrella have tried - although it's not worth worrying about.

    It was always said you should stay opted in to the Conduct Regulations, and it's surely a no-brainer if you're on an inside or umbrella gig.
    So I was shocked this week when the agency's online contract forms wouldn't allow me to tick whether to stay opted in or opt out. I spoke to the agency and told them I want to stay opted in and their response was "It's for the umbrella company to decide and fill in. So you will need to instruct them"........Surely that's not right?????

    So to be safe, I did tell the umbrella company and even provided them with a screenshot of how it should look. Guess what, the brolly have opted me out WTF!

    So just curious what the expert opinion is on whether it's legal for the agency to put the Opt in/out decision in the hands of the umbrella?
    And in the 1 in billion chance that something went to court, surely the court would give more weight to me directly telling the agency I want to stay opted in ?

    #2
    Dunno about giving the brolly the power to decide it but they are allowed to chose to only deal with opt out contractors. Cojak and Suellen both asked BiS awhile ago and there is nothing wrong with an agent (and I guess a brolly now) to say they don't want to deal with opt in contractors.

    So is it right they make the decision? Dunno but if they don't want to deal with Opt in contractors then that's that. You are opted out or you look elsewhere. Same end really.

    In all the time on here I don't think we've seen one instance where someone's opt in/out status has made one iota of difference to a situation. Most are done incorrectly, the agents don't understand it and even if both those are covered the agent can just say, so what, sue us, which you wont. All been pretty pointless up to now.

    Also, not everything you don't like is illegal.
    'CUK forum personality of 2011 - Winner - Yes really!!!!

    Comment


      #3
      Originally posted by northernladuk View Post
      Dunno about giving the brolly the power to decide it but they are allowed to chose to only deal with opt out contractors. Cojak and Suellen both asked BiS awhile ago and there is nothing wrong with an agent (and I guess a brolly now) to say they don't want to deal with opt in contractors.

      So is it right they make the decision? Dunno but if they don't want to deal with Opt in contractors then that's that. You are opted out or you look elsewhere. Same end really.

      In all the time on here I don't think we've seen one instance where someone's opt in/out status has made one iota of difference to a situation. Most are done incorrectly, the agents don't understand it and even if both those are covered the agent can just say, so what, sue us, which you wont. All been pretty pointless up to now.

      Also, not everything you don't like is illegal.
      It does make a difference - were the end client to go bankrupt and not pay the invoice.

      Opted Out and the agency doesn't need to pay you penny, opted in and the agency needs to pay you for all signed timesheets.

      Granted for smaller agencies it doesn't solve anything as the agency won't be in a position to pay the bill but that is a separate matter.

      merely at clientco for the entertainment

      Comment


        #4
        Originally posted by northernladuk View Post
        Dunno about giving the brolly the power to decide it but they are allowed to chose to only deal with opt out contractors. Cojak and Suellen both asked BiS awhile ago and there is nothing wrong with an agent (and I guess a brolly now) to say they don't want to deal with opt in contractors.
        We both got different answers.

        So I concluded like with most things in the various UK legal jurisdictions it depends on how you present your case and most importantly who you are dealing with at the time.
        "You’re just a bad memory who doesn’t know when to go away" JR

        Comment


          #5
          Originally posted by PTP View Post

          So just curious what the expert opinion is on whether it's legal for the agency to put the Opt in/out decision in the hands of the umbrella?
          And in the 1 in billion chance that something went to court, surely the court would give more weight to me directly telling the agency I want to stay opted in ?
          There are no cases tested in a higher court so we won't know whether it is legal.

          The problem you have is that the umbrella is your "employer" in the current chain. If you ensure that you are on the agency's payroll then it makes it more difficult for them to avoid paying you.

          Regardless if it went to Court how it would be viewed would depend on the exact situation, including possibly the fact you didn't have the option of being on a payroll run by the agency and the agency gave you a list of umbrella companies you had to choose from, the other legal arguments your representatives give and the judge on the day.

          "You’re just a bad memory who doesn’t know when to go away" JR

          Comment


            #6
            Originally posted by eek View Post

            It does make a difference - were the end client to go bankrupt and not pay the invoice.

            Opted Out and the agency doesn't need to pay you penny, opted in and the agency needs to pay you for all signed timesheets.

            Granted for smaller agencies it doesn't solve anything as the agency won't be in a position to pay the bill but that is a separate matter.
            But in reality every question we've had about agency not paying we've asked about the status and it just came to dunning and take legal or walk. We've zero evidence any agency as ever paid up because of the contractors opt in/out status
            'CUK forum personality of 2011 - Winner - Yes really!!!!

            Comment


              #7
              Signing the opt out effectively stands for nothing if you have met the client before accepting the role, which is the usual route. If in a court situation that would automatically opt you in irrelevant of what the paperwork states.

              Comment


                #8
                Originally posted by lucyclarityumbrella View Post
                Signing the opt out effectively stands for nothing if you have met the client before accepting the role, which is the usual route. If in a court situation that would automatically opt you in irrelevant of what the paperwork states.
                We don’t know that as, as far as I’m aware it’s never been tested in law.

                equally though it is one of those items on the FCSA compliance check I will be using to argue that the FCSA see contractors as product and not the customer (for them agencies are the only customer that matters).
                merely at clientco for the entertainment

                Comment

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