Forced to opt out?

[Abbeyweb]

I'm new to contracting (less than 6 months) and in this article Opt-in, opt-out?Legal specialist Egos comments :: Contractor UK it says the following

"An agency may not make opting out a condition of providing work-finding services."

But a paragraph in my contract states the following

"3.7. The Consultancy warrants that it will only supply staff to perform the Consultancy Services who have opted out of the Conduct Regulations 2003."

I have never specifically requested to opt out or in but had I been opted in then I would have had some protection from the end client going into administration owing me over £4200 and could have turned to the agency for payment.

All comments welcomed please.

[Andy Hallett]

Forced to opt out?

Amazed that anyone signs clauses that are paid when paid.

Doing so exposes you to both the agency and end client. We've never put it in the UK contracts as we didn't think it was fair, perhaps I need to review that!

The Opt-out is very difficult to apply as there a number of technical steps an agency will need to have done. I'd be astounded if they had complied.

[Clare@InTouch]

I'm new to contracting (less than 6 months) and in this article Opt-in, opt-out?Legal specialist Egos comments :: Contractor UK it says the following

"An agency may not make opting out a condition of providing work-finding services."

But a paragraph in my contract states the following

"3.7. The Consultancy warrants that it will only supply staff to perform the Consultancy Services who have opted out of the Conduct Regulations 2003."

I have never specifically requested to opt out or in but had I been opted in then I would have had some protection from the end client going into administration owing me over £4200 and could have turned to the agency for payment.

All comments welcomed please.

I believe you would have needed to sign a specific Opt Out clause too, otherwise you'd be opted-in by default. Might be worth asking the agency to send you a copy of your signed opt out agreement.

[Support Monkey]

you might want to check this but i thought (and correct me if i am wrong) but If you had been introduced/interviewed by the client before you opted out then this is null and void anyway

So you might want to think back to what point you signed the contract

[Andy Hallett]

you might want to check this but i thought (and correct me if i am wrong) but If you had been introduced/interviewed by the client before you opted out then this is null and void anyway

So you might want to think back to what point you signed the contract

It's before you start providing the services.

[malvolio]

It's before you start providing the services.

Or, it's before the client knows who you are. It's the key difference between a Ltd Co contractor being hired for a specific set of skills an expereince and an Office Angels temp (or more realistically a temporary fruit picker from the local agency) who will be doing whatever donkey work the client needs doing.

The Regs are not clear on the point: they deliberately use the word "introduced" which has two distinctly separate meanings, either " I know who you are" or "You have been added to the labour pool from now on". For use freelance contractors, the former is the appropriate term. Sadly that means the agencies have to do extra work and/or carry extra risk, hence they favour the latter.

[BolshieBastard]

I'm new to contracting (less than 6 months) and in this article Opt-in, opt-out?Legal specialist Egos comments :: Contractor UK it says the following

"An agency may not make opting out a condition of providing work-finding services."

But a paragraph in my contract states the following

"3.7. The Consultancy warrants that it will only supply staff to perform the Consultancy Services who have opted out of the Conduct Regulations 2003."

I have never specifically requested to opt out or in but had I been opted in then I would have had some protection from the end client going into administration owing me over £4200 and could have turned to the agency for payment.

All comments welcomed please.

Cojak had a sticky thread about this when they made enquiries about this very matter. Many people are under the impression agencies cannot make opting out a condition of finding work but, the Cojak thread makes it clear this is the case.

Thank the loons at PCG for this mess. They campaigned for the opt out, bunch of twunts.

[Andy Hallett]

Or, it's before the client knows who you are. It's the key difference between a Ltd Co contractor being hired for a specific set of skills an expereince and an Office Angels temp (or more realistically a temporary fruit picker from the local agency) who will be doing whatever donkey work the client needs doing.

The Regs are not clear on the point: they deliberately use the word "introduced" which has two distinctly separate meanings, either " I know who you are" or "You have been added to the labour pool from now on". For use freelance contractors, the former is the appropriate term. Sadly that means the agencies have to do extra work and/or carry extra risk, hence they favour the latter.

I have sat in court and seen this point debated. I am sticking with my view that the status is fixed when the services start to be provided.

[Wanderer]

"An agency may not make opting out a condition of providing work-finding services."

But a paragraph in my contract states the following

"3.7. The Consultancy warrants that it will only supply staff to perform the Consultancy Services who have opted out of the Conduct Regulations 2003."

There is a big debate about this. The Agency Conduct Regulations section 32(13) mentions this and my reading of it is that this clause in the contract is illegal and they cannot force you to opt out in this manner.

It's never been tested in court though so the debate about it is moot. I would pass this on to the agency and tell them that the contract is NOT opted out of the agency regulations therefore they have to pay.

I have never specifically requested to opt out or in but had I been opted in then I would have had some protection from the end client going into administration owing me over £4200 and could have turned to the agency for payment

My advice to you is to proceed as if you were NOT opted out and demand payment from the agency. The procedure for this has been discussed widely on this forum, do a search for "dunning".

Briefly:

1. Add Staturory interest and penalties to the unpaid invoice.

2. Write a letter stating that the invoice (enclose a copy) is overdue and must be paid within 14 days or you will commence legal action to recover the debt without further notice.

3. Look up the name of the director of the agency from Companies House and address the letter to that person. Go to the post office and send the letter "signed for" so you can be sure that it gets the attention of the right person.

This will certainly get the attention of the agency and show them that you mean business. They will call you with a lot of bluff and bluster about this and that. Just reply saying that you don't consider that the engagement was opted out of The Conduct of Employment Agencies and Employment Businesses Regulations 2003 and as such they still have to pay you regardless of what the contract says and the client not paying them is not your problem.

Don't enter into a long debate about this, just state that fact as your final position. When they disagree, tell them that since you are deadlocked you will take the case to court and you will argue it there and let the judge decide.

Start the action using Money Claim Online.

[Wanderer]

It's before you start providing the services.

The exact wording is "before the introduction or supply", see section 32(9) of the Agency Conduct Regulations.

It has been discussed at length here and the consensus is that it's poorly drafted and the actual interpretation of the wording could be taken several ways.

Agencies like to read it to mean that you can opt out before you start work (before the supply) which is understandable but they also maintain that the opt out can happen after you have been introduced (eg, CV submitted and interviewed). Many disagree with this.

We read it to mean that a contractor must opt out before their CV is put forward to the client ("before the introduction") and that "before the supply" refers to an office temp/security guard who would typically be supplied to the client by an agency without an introduction.

It's a moot argument until it's tested in court but it's never got that far.