If an agency insists I opt out, but I never get around to it...

[mcskiver]

....am I in the clear?

My current agency insisted that "they only deal with contractors who sign the opt-out". However, I simply never signed or sent it, and have now been working for the client for three weeks.

Does the agency have any right to insist that the opt-out was implied or anything like that? Basically it's only a short-term contract, but I think there might be an opportunity for ongoing ad-hoc work.

Am I legally allowed to now go direct to the client once my contract ends? I know there's something like 8 weeks statutory gap anyway, but after that my options are open?

[Not So Wise]

If you never signed anything before being introduced to the client (interview/first day at work, whichever came first) you are in the clear (aka in).

Even if you signed something now it would change nothing because after the introduction you cannot opt out even if you want to.

also

My current agency insisted that "they only deal with contractors who sign the opt-out".

AFAIK they are not allowed to do that, aka illegal

[mcskiver]

To be honest, I said that straight out to the agent when he told me, and then I said i'd sign it anyway because i'd already spoken to the client, and therefore had been "introduced", which as far as I know means it's irrelevant anyway!

Why are agencies so keen to get you to opt out even when you point out it's not legally going to stand up? Is it because it just saves them the hassle of chasing your references? (That suits me too - finding 5 years worth of references is hard work!)

[Xil3]

If you never signed anything before being introduced to the client (interview/first day at work, whichever came first) you are in the clear (aka in).

Even if you signed something now it would change nothing because after the introduction you cannot opt out even if you want to.

also


AFAIK they are not allowed to do that, aka illegal

Would you happen to have a link to a page that I could read more about the differences between opting in and out? Because my agency did the exact same thing...

They basically told me that they only deal with contractors that opt out. And that was after I had asked them the "what if" question. So it's illegal what they did?

[mcskiver]

Yeah, it's illegal. However, if an agency then refuses to put you forward for a contract, or worse pretends they have but you mysteriously don't get the job, there's not a lot you can do.

My personal approach is to go along with what they're saying (although I do usually point out their illegality in as friendly a way as possible) but then avoid signing it if humanly possible.

In my experience agencies want to know you're willing to sign, then they're usually desperate to get you into the client's offices so they don't check whether you've signed or not. If you eventually get forced into signing it, but have already met the client, or even spoken to them, the opt-out is invalid. That's my understanding anyway.

So the key is to avoid opting out until it's legally irrelevant - and it works!

[tim123]

To be honest, I said that straight out to the agent when he told me, and then I said i'd sign it anyway because i'd already spoken to the client, and therefore had been "introduced", which as far as I know means it's irrelevant anyway!

Why are agencies so keen to get you to opt out even when you point out it's not legally going to stand up? Is it because it just saves them the hassle of chasing your references? (That suits me too - finding 5 years worth of references is hard work!)

Because they think that they can con you, or more likely the client, into believing that it will stand up and that the transfer fee will have to be paid.

Oh and taking up references after you have been introduced is also wrong. They take up reference in order to show that they have met their obligation to the client to 'know' the candidate. Taking them retrospectively doesn't achieve this.


tim

[Not So Wise]

Why are agencies so keen to get you to opt out even when you point out it's not legally going to stand up?

Mainly because they are depending on ignorance and confusion. Because (AFAIK) it's never been tested in a court of law there is still some "confusion" about a certain sentence in the regulations. Quotes around confusion because it really is pretty simple and straight forward but because the agencies don't like it they want it to have a different interpretation to what it actually says

"provided that such notice is given before the introduction or supply of the work-seeker or the person who would be supplied by the work-seeker to do the work, to the hirer."

Agencies are trying to argue that the "or" actually means "either" as in you have been introduced but not started, so they can "force" (quotes because they are not allowed to force you) you to opt out still. They dread the day this actually goes to court because it will be an easy win for whoever brings them to court, but for now it has not been worth the hassle/cost to anyone

As to why they want you to opt out? the regs put boat loads of restrictions on them, no withholding payments, very short limited restrictions of trade, have to do better ID/reference checks on contractors,cannot force you to use other services (aka no preferred umbrella's or such crap)

And why should contractors not want to opt out? Pretty much no downside for them as long as they are legal to work in this country and they have not lied big time on their CV

To be honest I don't know why they just don't fax the opt out before the interview, it would only take them two minutes


Full Regulations can be found here
http://www.opsi.gov.uk/si/si2003/20033319.htm

And a summary can be found here
http://www.contractoruk.com/news/001496.html

[moorfield]

I usually go along with it and I've found agreeing to Opt-Out is always a good bargaining chip to have with the pimps.