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I am dealing with a contract where the dispute nts on

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I am dealing with a contract where the dispute hints on whether a "Valid Opt Out Notice" as defined in the contract was served.
The contract definitions include "Valid Opt Out Notice" is "a written notice from the Temporary Worker and the company or corporate entity which supplies the Temporary Worker confirming that both have exercised their right under s32(9) of the Conduct of Employment Agencies Regulations to opt out of the Conduct of Employment Agencies Regulations"
A Schedule to the contract includes the phrase "Contractor Opted Out" - with "Yes" indicated next to it.
From the perspective of employment status, contractor refers to individual, not legal entity. A contractor may opt out of numerous things..... Working Time directive, even a free lunch!!
So on this basis - has a valid opt out notice been served?
Submitted: 11 months ago.
Category: Law
Customer: replied 11 months ago.
Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Expert:  Ben Jones replied 11 months ago.

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.

Expert:  Ben Jones replied 11 months ago.

Please could you provide a brief background on this case?

Customer: replied 11 months ago.
It's a contract for supply of temporary workers.There are a number of parties:
- Our company
- Recruitment company
- Temporary worker
- Company supplying temporary worker(umbrella company)So the contract is between our company and the recruitment company - they are supplying a temporary worker who has their own limited company. So the recruitment company has a contract between themselves and the umbrella company.As I said previously, the dispute centres on an opt out notice, which determines whether an introduction fee is payable.The dispute centres on whether a "Valid Opt Out Notice" as defined in the contract was served.The contract definitions include "Valid Opt Out Notice" is "a written notice from the Temporary Worker and the company or corporate entity which supplies the TemporaryWorker confirming that both have exercised their right under s32(9) of the Conduct of Employment Agencies Regulations to opt out of the Conduct of Employment Agencies Regulations"A Schedule to the contract includes the phrase "Contractor Opted Out" - with "Yes" indicated next to it.From the perspective of employment status, contractor refers to individual, not legal entity. A contractor may opt out of numerous things..... Working Time directive, even a free lunch!!So on this basis - has a valid opt out notice been served?
Expert:  Ben Jones replied 11 months ago.

OK thank you, ***** ***** it with me. I am in court today so will prepare my advice during the day and get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Thank you.

Expert:  Ben Jones replied 11 months ago.

Many thanks for your patience. Whether a valid opt out notice has been served will depend on a wider interpretation of the whole agreement. As legislation does not specifically state what form the notice must take, it must be considered in conjunction with the whole contract and whether there is any indication that anything else may have been opted out.

You are quite correct that a contractor could opt out of many things but at the same time a court would look at the whole contract to see if there is any mention of the option to opt out of anything else. If there is mention of this then there is obviously a potential confusion as to what was being opted out of and that would strengthen the argument that no valid notice was served. If there was no mention of opting out options in relation to anything else then one may assume that the only opt out would have been in relation to the Regulations.

At the same time, a court may wish to be satisfied that the thing opted out of is specifically referenced and this is also stated in the definition of what a valid opt out notice is. The definition specifically states it must be “a notice confirming that both have exercised their right under s32(9) of the Conduct of Employment Agencies Regulations” and the opt out notice in the schedule makes no mention whatsoever of what they are agreeing to opt out of. So overall I would be minded to say that no valid notice has been served, although only a court can decide that.

I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you

Expert:  Ben Jones replied 11 months ago.

Hello, I see you have read my response to your query. If this has answered your question please take a second to leave a positive rating by selecting 3, 4 or 5 stars from the top of the page. I spend a lot of time and effort answering individual queries and I am not credited for my time until you leave your rating. If you still need further help please get back to me on here and I will assist as best as I can. Many thanks.

Customer: replied 11 months ago.
Thanks for your response - it certainly is useful.One further question.....The term "contractor opted out" - is there an issue in that this refers to one party (contractor) and not the contractor (temporary worker) and company supplying the temporary worker. In that sense has notification of a valid opt out notice been served as it has only indicated the contractor's position on an opt out (irrespective of the argument of what they are opting out of)Thanks
Expert:  Ben Jones replied 11 months ago.

yes, the Regulations state that both parties must indicate their intention t opt out so if only one has done so, again it would add to the argument that no valid notice had been served. Hope this clarifies?

Expert:  Ben Jones replied 11 months ago.

If your original question has been answered I would be grateful if you could please quickly rate my answer by selecting 3, 4 or 5 starts at the top of the page - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you

Ben Jones, UK Lawyer
Category: Law
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Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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