• Visitors can check out the Forum FAQ by clicking this link. You have to register before you can post: click the REGISTER link above to proceed. To start viewing messages, select the forum that you want to visit from the selection below. View our Forum Privacy Policy.
  • Want to receive the latest contracting news and advice straight to your inbox? Sign up to the ContractorUK newsletter here. Every sign up will also be entered into a draw to WIN £100 Amazon vouchers!

Opt-in - Agent Tricks?

Collapse
X
  •  
  • Filter
  • Time
  • Show
Clear All
new posts

    Opt-in - Agent Tricks?

    Decided to remain opted-in for latest contract - agent seems happy with it, but has said they need to get confirmation from the client. As far as I'm aware it regulates the relationship between my company and the agency and has nothing to do with the client?

    Load of rubbish, or does this actually happen?

    #2
    The requirement to get client approval is a load of rubbish, but that doent mean that the agency won't go away for a bit and then tell you that the client will only accept people who opt out. Probably because the agent has lied to the client and told them that if you remain opted in you will get employment rights (if they even bother to ask the client anything at all).

    Be prepared for the discussion when the agent comes back - how important is it to you to be opted in? Make a note of the protection that you want and then when they say "opt out only" you can then tell them the additional clauses you need in the contract to give you the same rights as if you werent opted out.

    Comment


      #3
      Originally posted by TonyF View Post
      The requirement to get client approval is a load of rubbish, but that doent mean that the agency won't go away for a bit and then tell you that the client will only accept people who opt out. Probably because the agent has lied to the client and told them that if you remain opted in you will get employment rights (if they even bother to ask the client anything at all).

      Be prepared for the discussion when the agent comes back - how important is it to you to be opted in? Make a note of the protection that you want and then when they say "opt out only" you can then tell them the additional clauses you need in the contract to give you the same rights as if you werent opted out.
      I've never remained opted in before - always opted out but there doesn't seem to be any benefit to opting out - so I thought I'd fight the relevant fights from now on. After all - the work and working arrangements are exactly the same as they would be if I went direct, so I might as well take the extra commercial protection it offers. The contract is 150% outside IR35, no shadow of a doubt.

      I asked them why the client needs to get involved and they've come back to say they need to check if the client has the relevant health and safety protocols in place - that's it. I believe them if I'm honest - I know there are a few extra checks they need to do if a contractor opts in, but this particular agency have been very transparent - even though I've approached everything as a skeptic. They're a very well known name, and I've always been impressed when working with them in the past - I believe they got me my first contract, in fact, and the agents all seem very clued up - they try a few bits and pieces on here and there, but generally good to work with.

      I have direct contact with the client, so if they come back with nonsense and won't budge I will speak to them and explain the situation.

      I almost always ask for mods in the contract - this time around I even suggested to them that I would be happy opting-out as long as we used the opt-in contract wording as a kicking off point (I get copies of all contracts before I make a decision).

      Negotiations are in hand - all seems legit so far, as long as the client is fine supplying them with the relevant health and safety info.
      Last edited by Spikeh; 27 March 2018, 10:46.

      Comment


        #4
        H&S applies to all personnel on site, regardless of why they are there or how they are engaged...
        Blog? What blog...?

        Comment


          #5
          Originally posted by malvolio View Post
          H&S applies to all personnel on site, regardless of why they are there or how they are engaged...
          Of course, but the agent doesn't have to do their "due diligence" if you opt-out.

          Comment


            #6
            Originally posted by Spikeh View Post

            I asked them why the client needs to get involved and they've come back to say they need to check if the client has the relevant health and safety protocols in place - that's it. I believe them if I'm honest - I know there are a few extra checks they need to do if a contractor opts in, but this particular agency have been very transparent - even though I've approached everything as a skeptic. They're a very well known name, and I've always been impressed when working with them in the past - I believe they got me my first contract, in fact, and the agents all seem very clued up - they try a few bits and pieces on here and there, but generally good to work with.
            Well, I guess technically they may have to consult the client if the original agreement between them was to provide opted-out contractors.

            The Conduct of Employment Agencies and Employment Businesses Regulations 2003

            (3) If the agency or employment business and the hirer agree to any variation in the terms set out in the document referred to in paragraph (2), the agency or employment business shall, unless the hirer has a copy thereof, as soon as is reasonably practicable, give to the hirer a document containing details of the variation and stating the date on or after which it is agreed that the varied terms are to take effect.
            There is a situation where they may actually have to go back to the hirer and clarity some H&S issues. I bet they haven't clarified what qualifications are required to be checked either.. as per. The below. H&S is applicable to all yes but looks like the agent needs to know how rather than any difference to whoever is on site.

            The Conduct of Employment Agencies and Employment Businesses Regulations 2003

            (c)
            the position which the hirer seeks to fill, including the type of work a work-seeker in that position would be required to do, the location at which and the hours during which he would be required to work and any risks to health or safety known to the hirer and what steps the hirer has taken to prevent or control such risks;
            .
            (d)
            the experience, training, qualifications and any authorisation which the hirer considers are necessary, or which are required by law, or by any professional body, for a work-seeker to possess in order to work in the position;
            All that said it's highly likely nothing to do with any of this and just agency BS.
            'CUK forum personality of 2011 - Winner - Yes really!!!!

            Comment


              #7
              Originally posted by northernladuk View Post
              Well, I guess technically they may have to consult the client if the original agreement between them was to provide opted-out contractors.

              The Conduct of Employment Agencies and Employment Businesses Regulations 2003



              There is a situation where they may actually have to go back to the hirer and clarity some H&S issues. I bet they haven't clarified what qualifications are required to be checked either.. as per. The below. H&S is applicable to all yes but looks like the agent needs to know how rather than any difference to whoever is on site.

              The Conduct of Employment Agencies and Employment Businesses Regulations 2003



              All that said it's highly likely nothing to do with any of this and just agency BS.
              It's bollocks.

              There are various health and safety acts a company could be prosecuted under even if you aren't an employee and something goes drastically wrong/they keep putting people at risk. Lots of the acts were amended to stop companies wiggling out of their liabilities.
              "You’re just a bad memory who doesn’t know when to go away" JR

              Comment


                #8
                Here's a copy of an email I sent to one agency when they said "the client won't accept any opted-out contractors".
                Hi (deleted),

                Thanks for that confirmation. With that in mind, can I propose an alternative? As we discussed on the phone yesterday, you as the agency would be more than happy for me to be opted-in but the client isn't. So, to make that work, please add the following two new clauses to the contract between us:

                44. Contracting Company and (agency name) have agreed that any worker from Contracting Company will have opted-out status as defined by The Conduct of Employment Agencies and Employment Businesses Regulations 2003 in specific relation to the Client listed in any approved Schedule to this contract.

                45. Contracting Company and (agency name) agree that this contract adopts all rights and obligations in relation to workers contained within The Conduct of Employment Agencies and Employment Businesses Regulations 2003 even though all workers are opted-out. Where a specific clause of this contract conflicts with any right or obligation within the Regulations, the definition within Regulations shall take precedence. This clause only applies to rights and obligations between Contracting Company, its workers and (agency name), it specifically does not confer any benefit or obligation on the Client.

                As you'll see, that makes it clear that you and I have agreed that the meat of the Regulations should apply between us but the client is left out. Best of both worlds really. Can you confirm by return that you're happy with that?

                I did that to be mischievous more than anything but it annoyed me that they'd try so late in the contract process. Cue phase 2, they tried the newbie contractor gambit, "sorry, our contract can't be amended as it would take at least two months to get it through our lawyers, why not just sign it as it is then we'll amend it later." Then phase 3, paranoid know-little contractor gambit, "you do know that if you opt-in or do as you say then the Regulations mean that you're IR35 caught?". Then phase 4, the no-war-chest contractor threat gambit, "I'd have to get that approved by our MD who is on annual leave for two weeks, the client want someone to start next week so we may have to go with their backup choice if you insist".

                I ended up agreeing with them that it'd be easier to just sign their "opted-in" contract. I didn't even have the heart to point out that there's no such thing as "opting in", I'm in unless I specifically opt out.

                I still can't believe people fall for the "opted out" tripe that is dished out by agencies.

                Comment


                  #9
                  Around 4 years ago, after failing to convince me that it was in my best interests to opt out, the agency phoned me a couple of days later claiming that work regulations state that if I choose to opt in then I can only go brolly (not LTD). I'm guessing that they hoped I'd just accept it and agree to opt out. However, I stood my ground and they soon admitted this has all been a "misunderstanding",

                  Comment

                  Working...
                  X