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

[tim123]

And the way I see it is that if your contract says so that's enough.

But Hillier does not agree with you. Unless his opinion is changed on appeal, his view counts for more than yours.

tim

[malvolio]

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.

Thanks Dave (?) - that's the point I've been trying to make for the last 6 months, and is why the Dragonfly case is so interesting.

[Jubber]

I really think that this is a matter of personal choice. If you have taken all steps to ensure as far as possible that the paperwork (contract) puts you outside of IR35, then that's the way you should conduct your business.

If your gut feeling is that it is all a complete fudge so you can avoid tax then pack up your business and go PAYE with the agency, especially if all you are doing is getting the bus to only one client every day.

[Fred Bloggs]

But Hillier does not agree with you. Unless his opinion is changed on appeal, his view counts for more than yours.

tim

I know. That's why I find the latest case losses so disturbing.

[Jubber]

I know. That's why I find the latest case losses so disturbing.

Why.? Am I missing something here.?

If all business affairs are in order and to the best of your knowledge all is in order to keep you outside of IR35 (paperwork, legal documents etc) so there is no case of negligence, even if Hector takes you all the way to the high court you will not be personally liable. So if all company funds have been used to pay salaries, dividends etc, as one would sincerely hope, he can have the rest and wind the company up.

I know no-one would want to go through the above, but if all business affairs are in order, why so disturbing.?

[Fred Bloggs]

Why.? Am I missing something here.?

If all business affairs are in order and to the best of your knowledge all is in order to keep you outside of IR35 (paperwork, legal documents etc) so there is no case of negligence, even if Hector takes you all the way to the high court you will not be personally liable. So if all company funds have been used to pay salaries, dividends etc, as one would sincerely hope, he can have the rest and wind the company up.

I know no-one would want to go through the above, but if all business affairs are in order, why so disturbing.?

Disturbing because to my eyes at least, the cases hinge on a HR numpty at the client who probably wasn't even party to the original contract saying "Oh we wouldn't accept what it says in the contract". Hellier appears (to me at least) to see this as enough evidence to be IR35 caught. Effectively (again in my eyes) over turning at a stroke whatever evidence you presented. In essence, Hellier has turned the IR35 issue into a lottery.

On the other point about the IR35 actual tax liability, this was done to death on a previous thread with no real conclusion but it is my belief that since IR35 is a personal rather than company tax then you are liable whether the company is wound up and has no assets or not. Others will disagree with me on this point.

[tim123]

Thanks Dave (?) - that's the point I've been trying to make for the last 6 months,

But it's not.

The point that you regularly make is the one that Fred Blogs just made.

(but I do agree that what Dave has written is right)

tim

[malvolio]

But it's not.

The point that you regularly make is the one that Fred Blogs just made.

(but I do agree that what Dave has written is right)

tim

Right, fine. Clearly I haven't understood what I've been saying then. Must learn to pay more attention to myself when I'm typing.

You don't come from Cambridge in Cambridgeshire, do you?

[tim123]

My apologies if I have mis-remembered,

But IIRC you argued that Hillier had no right to rule that the client stating that a sub would not be allowed in practice, voided the clause in the agency-contractor contract which allowed it. (I have searched for this but failed to find it.)

ISTM that the client not being prepared in reality to accept a sub, meets the condition stated by Dave that suggested the clause could be ignored.

And I have to claify, once again, that the point I am disagreeing with is the matter of law as to whether Hillier was entitled to allow himself to make that decision, not whether the decision that he made was correct in fact.

tim

[malvolio]

My apologies if I have mis-remembered,

But IIRC you argued that Hillier had no right to rule that the client stating that a sub would not be allowed in practice, voided the clause in the agency-contractor contract which allowed it. (I have searched for this but failed to find it.)

ISTM that the client not being prepared in reality to accept a sub, meets the condition stated by Dave that suggested the clause could be ignored.

And I have to claify, once again, that the point I am disagreeing with is the matter of law as to whether Hillier was entitled to allow himself to make that decision, not whether the decision that he made was correct in fact.

tim

Which, I beleive, is the basis of the appeal. AIUI you can't appeal such things on the basis of the judgement, only if you can demonstrate that the judge erred on a point of law. Hillier is perfectly at liberty to say what he did, but he has to demonstrate why he has disregarded or reversed earlier precedents.

I read Dave as saying that if the client decided that subs were not acceptable in the face of a contract clause that they were, the clause is therefore a sham and the entire contract could be set aside: that's not quite the same thing as I think you are suggesting.