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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.
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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?
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