Substitution Clause

[meanttobeworking]

Thanks for the comments, they're appreciated.

[psychocandy]

The annoying thing is, they're actually ok with the concept of using a sub, it's more just the wording of the clause puts them a little more in control of it than ideal.

which is more than most clients who allow a proper sub clause but would run a mile if you ever asked them to invoke it.

[meanttobeworking]

which is more than most clients who allow a proper sub clause but would run a mile if you ever asked them to invoke it.

True!

[MPwannadecentincome]

You only need to pass one of the big three tests so I wouldn't worry too much about the RoS clause. IMO relying on RoS clauses over and above everything else is a mistake - its easy to get one in your contract and your client to agree to it, even if reasonably unfettered, but hard to say if they'd ever go for a substitute in many cases.

If the rest of your contract is fine and you're confident when it comes to MOO and D&C then don't worry about it.

Weak doesn't also mean it's a complete fail. I am guessing the client can refuse the sub without reason. Either way, what Top says and get IPSE+ and even TLC35 from QDOS if you Warwick worried.

That is not the QDOS view, I had a complete fail only due to RoS not being strong enough.

[jamesbrown]

That is not the QDOS view, I had a complete fail only due to RoS not being strong enough.

It's just a calibrated opinion, based on limited information. Remember, you only need to demonstrate one of RoS, lack of MoO and lack of D&C convincingly (although failing on D&C is bad). Not all individual reviewers and companies are calibrated the same, and not all reviews are based on the same level of information. A fettered RoS isn't ideal, of course. You've probably opted for the quick/cheap QDOS review. You might have a different answer from another reviewer, and even a consistent one across reviewers on the basis of a detailed review that includes the working practices.

[TheCyclingProgrammer]

That is not the QDOS view, I had a complete fail only due to RoS not being strong enough.

Case law doesn't support that view and if anything, SD&C is likely to prove more crucial going forward.

[SueEllen]

That is not the QDOS view, I had a complete fail only due to RoS not being strong enough.

I read your other post.

If every worker on-site has to have some form of background check then the RoS cannot be unfettered. As if the worker fails that background check then they won't be allowed on-site.

Another reason to not to allow an unfettered right of substitution is if the worker you choose is an ex-worker removed for gross misconduct, which you don't know about, they aren't going to let them on-site.

The problem with quick reviews is the reviewer may not bother to look at early clauses which state that everyone needs a certain type of background check.

[MPwannadecentincome]

It's just a calibrated opinion, based on limited information. Remember, you only need to demonstrate one of RoS, lack of MoO and lack of D&C convincingly (although failing on D&C is bad). Not all individual reviewers and companies are calibrated the same, and not all reviews are based on the same level of information. A fettered RoS isn't ideal, of course. You've probably opted for the quick/cheap QDOS review. You might have a different answer from another reviewer, and even a consistent one across reviewers on the basis of a detailed review that includes the working practices.

I am doing the working practises now, no issues with MOO or SDC - have to ask the client if they would accept a substitute if the situation arises - which I think it will actually as there are a couple of critical days whilst I am on holiday - there isn't much else I can do on RoS other than go through the process of getting a substitute.

Case law doesn't support that view and if anything, SD&C is likely to prove more crucial going forward.

So maybe if I asked for QDOS TLC35 cover I can see if they would refuse my cover? Well all depends on my working practices I suppose....

[SueEllen]

You do know you will need to train your sub up at your expense unless you can find someone who worked/contracted there before quite recently?

[northernladuk]

I am doing the working practises now, no issues with MOO or SDC - have to ask the client if they would accept a substitute if the situation arises - which I think it will actually as there are a couple of critical days whilst I am on holiday - there isn't much else I can do on RoS other than go through the process of getting a substitute.

Remember offering a substitute is not just getting some random bod to turn up the day after you have gone. It's someone that can continue the work you were doing seamlessly which will probably incur some handover time where the client won't pay both of you. Am sure it's not always been the case for people that have managed to offer a sub but I am sure that lack of handover and continuity is the reason most clients refuse a substitute. Why would they just take some random body on they can't control fully. They might as well just go back to the agent and follow process and get their own guy.