If I can't provide a substitute am I screwed?

[tim123]

Those interpretations are being appealed, since they contradict established case law (which is that the genuine and relatively unfettered right to provide a substitute proves you are not in an employee relationship, whether or not you actually exercise the right). )

Here we go again:

Mal, there is no such case law. The case that demonstrated "having a right of substitution meant that there could not be an employee relationship" was a case where the right WAS exercised.

There is no case where a judge has ruled that having a RoS, but not being able to exercise it, proves that you are not an employee. On the contrary, there are cases where a judge has stated that having an unexercised RoS was "only an indicator" towards the individual not being an employee.

So, ISTM that a judge is perfectly entitled to rule that, having an RoS in the contract, that cannot be exercised in practice, is a sham that can be ignored.

Why do you persist in making this claim that you cannot substantiate?

tim

[malvolio]

I'm not about to plough through some 300 references looking for a specific detailed example. One that does come readily to hand is McMenamin vs. Diggles at the high Court some while ago where the judge said, in answer to Hector's claim that the inability to name a suitable substitute rendered the right itself a sham, "No, it's not. The important thing about substitution is the right to send a substitute. You may struggle like hell to find one, you may never send one in practice, but you have got the right to send a substitute and that one factor virtually concludes self employment."

However I'm not inclined to argue. Find me an employee who has a contractual right to send a substitute to do his job and I'll concede that a RoS is not a pointer to non-employment.

[Sockpuppet]

I'll be your substitute after all I know everything. No more IR35 for anyone!

Threaded.

[beaker]

Here's a Plan B... does anyone want to be my substitute? You can even come along to interviews with me

[NickFitz]

Given the recent IR35 rulings...

On an upcoming contract I think I tick all the IR35 boxes, except this one. In practice, I've been offered the role because of my knowledge and experience and in practice don't think the client would accept a substitute.

I'm in a similar situation, sought out by the client because of my skills, and contracting direct. Their legal department included RoS in the contract without my even having to ask, because they see it as providing legal protection for them as well as me - they don't want me to be deemed an employee, whereby they incur additional legal responsibilities, any more than I do.

[Chugnut]

I'm in a similar situation, sought out by the client because of my skills, and contracting direct. Their legal department included RoS in the contract without my even having to ask, because they see it as providing legal protection for them as well as me - they don't want me to be deemed an employee, whereby they incur additional legal responsibilities, any more than I do.

A signed statement from ClientCo saying "You are not our employee", is still not enough to satisfy Hector, otherwise I think we could all get them reasonably easily.

At a previous client there was some mandatory "travel expenses for contractors" document sent around. It had "line manager", and employee-type wording all over it. A colleague ran it past his IR35 insurer who said if you sign this, your insurance is void. He went back to the client who empathised and suggested an additional clause containing the "By signing this you are definitely not our employee and we don't want you recognised as such" statement. The insurer said this won't make a bit of difference and it would still nullify the insurance, so they must have known it was enough for them to lose the case.

[NickFitz]

A signed statement from ClientCo saying "You are not our employee", is still not enough to satisfy Hector, otherwise I think we could all get them reasonably easily.

My point wasn't that my client have made some kind of statement, which would indeed be meaningless, but that their legal department is savvy enough to provide a contract that puts me firmly outside IR35, because they are of the opinion that this benefits themselves as much as me. The OP might find that his ClientCorp does something similar, despite the fact that they don't really want a substitute.

[Accountax Consulting]

Case law states that if you have a genuine right to send a substitute you cannot be an employee and are therefore not caught by IR35.

It does not matter if you actually send a substitute but you must be able to if you want. If the client would never allow substitution the clause is a sham and puts the rest of the contract at risk.

[Fred Bloggs]

And the way I see it is that if your contract says so that's enough. Another document alongside the contract will be open to the same fairy tale HMRC judgements as the contract I believe.

[ASB]

And the way I see it is that if your contract says so that's enough. Another document alongside the contract will be open to the same fairy tale HMRC judgements as the contract I believe.

Maybe, but in this Alice world it is whether you can get that right expressed in unfettered terms in the implied contract - i.e. the work of fiction that is in fact judged.