Can you refuse to opt out?

[rebeccaloos]

Like many contractors here (I am sure), my agency has contacted me and asked me to "opt out" of the Conduct of Agencies act or whatever it's called.

They have asked me to send them an email back, like this:

(Limited Company Name)
Limited Company Registration Number
Do you operate via an umbrella company? Yes/No
Umbrella Company Name

I, (Name), acting in my personal capacity and as director of (Ltd Co Name) (Delet if working through an umbrella company) agree the following:

*&nbsp &nbsp &nbsp &nbsp the conduct of Employment Agencies and Employment Business Regulations 2003 shall not apply to the services provided by (gp co) to (ltd co name); and
*&nbsp &nbsp &nbsp &nbsp this opt out shall extend to all fixed term contract services (ltd co) may provide to (gp co) now and in the future; and
*&nbsp &nbsp &nbsp &nbsp this opt out shall extend to fixed term contract services (ltd co) may provide now or in the future to associated acompanies of (gp co)&nbsp &nbsp &nbsp &nbsp


with blanks filled in.

I have 2 questions on this:
1) what happens if I refuse to opt out?
2) is it possible to neither opt in nor opt out (i.e. sit on the fence), or are you "in" by default if you don't opt out?

[tim123]

answers:

1) (a) the agency will take a business led decision not to deal with you at all or to only deal with you on an increased margin to pay for the extra work and risk that accompanies an opted in person (company).
(b) you will be virtually condemming yourself to being 'offered' an IR35 fail contract because the leglisilation seems to require you to personally perform the services under the 'control' of the client.

2) No, an opt out is required before the "introduction" phase.


tim

and yes, I've edited this cos I cocked up.

[rebeccaloos]

Thanks Tim for your explanation.

To clarify a further point: if I do opt out ("forced" by my agency), then the terms of my original contract do apply, i.e. I must wait 6 months before working for my current client under a different agency. Is that right? (my contract says 6 months).