Opt out of Conduct of employment agencies 2003 act?

[speling bee]

Just got an offer for a new gig with this in the email:


And then there was an opt out of the agency regulations form attached.

Told them opting in or out has nothing to do with PAYE or IR35 and I'm opting in whilst staying outside of IR35
(first I'll have a QDOS review ofcourse)

The answer is clearly that you are not opting outside of IR35.

[Robinho]

Do you ever just go along with opting out knowing that they've done it wrong and that it's invalid - ie introduced you to the client before bringing it up?

[Wanderer]

Do you ever just go along with opting out knowing that they've done it wrong and that it's invalid - ie introduced you to the client before bringing it up?

I never willingly opt out. I don't agree with the idea that you can just go along with the opt out because it won't be valid either - I just don't do business that way. It could also be argued in court that the clear intent of both parties was that the opt out should stand and the court may rule that to be the case..

[craig1]

I never willingly opt out. I don't agree with the idea that you can just go along with the opt out because it won't be valid either - I just don't do business that way. It could also be argued in court that the clear intent of both parties was that the opt out should stand and the court may rule that to be the case..

I agree entirely. There are a good number of judges who would find in your favour then award you £1 without costs. Yes, you're technically in the right but you also gamed the system by accepting the contract as written despite knowing it was flawed.

[LisaContractorUmbrella]

I agree entirely. There are a good number of judges who would find in your favour then award you £1 without costs. Yes, you're technically in the right but you also gamed the system by accepting the contract as written despite knowing it was flawed.

I am not sure it would work that way. The default position in law is that the Conduct Regs apply to everyone under certain circumstances - if those circumstances apply then I think any opt-out would be secondary

[craig1]

I am not sure it would work that way. The default position in law is that the Conduct Regs apply to everyone under certain circumstances - if those circumstances apply then I think any opt-out would be secondary

There's a long standing precedent for paying a base damage of £1 or similar in cases where the court is satisfied that the plaintiff is legally in the right but their conduct is such that they don't deserve a payout. They have to be given a payout to legally bar them from claiming elsewhere. I remember one case we covered in law school where someone was offered a £100k+ payout but rejected it in favour of suing, the judge took an exceptionally dim view of the morals of the entire case and awarded £1 damages and £1 costs, the defendant paid on the spot with two £1 notes (showing the age of the case). On appeal against the damages award, the Court of Appeal upheld the decision and charged the plaintiff full defence costs against for a failed appeal.

Edit: In fact, thinking back, the CoA decision revoked the £1 costs award as there's another precedent that if you're awarded less in damages than you're offered in settlement before the case then you will not be awarded costs because you're wasting the court's time.

[psychocandy]

Hmmm. Look at this. Agency swears blind its not opting out but I'm not so sure. This is provided BEFORE interview but then theres the argument that, since you havent signed an opt out before introduction to the client then its invalid anyway.

Even though the clause doesnt say I wish to opt out surely 1a is the same thing?


1) In the event the Company is a personal services company, then the following clauses shall apply:
a) The Company warrants and undertakes that for the purposes of the Agency Workers Regulations 2010 (“Regulations”), (i) the Consultant is not acting in the capacity of an Agency Worker as defined by the Regulations; (ii) the Consultant is not under the supervision and direction of the Client, (though the Consultant is subject to the Client’s reasonable and lawful instructions); (iii) the Client and Experis are both customers of the Company; (iv) it genuinely operates in business of its own account.
b) Accordingly, the Company warrants that the Consultant shall not assert any claim for equal treatment against either the Client or Experis under the Regulations or any other legislation. In the event of any such assertion or claim, the Company shall indemnify Experis on demand, for any claim, costs (including legal costs) incurred by, or awarded against the Client or Experis, in respect of any such claim or allegation by the Consultant.
c) Notwithstanding the provisions of the above clauses, in the event the Consultant claims equal treatment under the Regulations, the Service Fee is deemed to be inclusive of any potential bonus which may or may not be payable, cost of any annual leave entitlement or any other elements of “pay” as defined by the Regulations.

[mudskipper]

Hmmm. Look at this. Agency swears blind its not opting out but I'm not so sure. This is provided BEFORE interview but then theres the argument that, since you havent signed an opt out before introduction to the client then its invalid anyway.

Even though the clause doesnt say I wish to opt out surely 1a is the same thing?


1) In the event the Company is a personal services company, then the following clauses shall apply:
a) The Company warrants and undertakes that for the purposes of the Agency Workers Regulations 2010 (“Regulations”), (i) the Consultant is not acting in the capacity of an Agency Worker as defined by the Regulations; (ii) the Consultant is not under the supervision and direction of the Client, (though the Consultant is subject to the Client’s reasonable and lawful instructions); (iii) the Client and Experis are both customers of the Company; (iv) it genuinely operates in business of its own account.
b) Accordingly, the Company warrants that the Consultant shall not assert any claim for equal treatment against either the Client or Experis under the Regulations or any other legislation. In the event of any such assertion or claim, the Company shall indemnify Experis on demand, for any claim, costs (including legal costs) incurred by, or awarded against the Client or Experis, in respect of any such claim or allegation by the Consultant.
c) Notwithstanding the provisions of the above clauses, in the event the Consultant claims equal treatment under the Regulations, the Service Fee is deemed to be inclusive of any potential bonus which may or may not be payable, cost of any annual leave entitlement or any other elements of “pay” as defined by the Regulations.

Agency worker regulations isn't the same thing as Conduct of Employment Agency regulations....

[tractor]

...

I never willingly opt out. I don't agree with the idea that you can just go along with the opt out because it won't be valid either - I just don't do business that way. It could also be argued in court that the clear intent of both parties was that the opt out should stand and the court may rule that to be the case..

This is my view and a risk that I don't wish to take. I asked the PCG what the legal position is but those of us who are members know their position on the matter and I didn't get an answer. The question was completely ignored.

One of the big problems with opting out is that agents can include clauses in the main contract which would not be allowed if you opt in, particularly clauses over clawback of fees already paid and so on. I have seen some abysmal contracts that transfer all of the risk and more to the contractor. And a court would say 'if you did not wish to be bound by these terms, why did you agree to them?' I'm not a believer too much in the 'unfair contract terms' malarkey. It is far too risky to rely upon and you are at the whim of which side of the bed the judge fell out of this morning.

If you don't opt out, most of the rubbish clauses are negated with a single swipe.

[tractor]

...

Agency worker regulations isn't the same thing as Conduct of Employment Agency regulations....

That is the second person (or they may be the same sockie lol) that has made that mistake this week