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

[maxima]

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.

Reading this MKM case where employer said - the would be unhappy to see substitute - what exactly was not genuine ? But case still felt through..

[tim123]

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.

Correct (that it's not the same). I think that he is saying that the clause is a sham and cannot be relied upon when drawing up the notional contract and the other pointers have to be used here.

I interpreted his further comment as meaning that the rest of the contract could not be reliend upon either in this context, and thus all the other good pointers (and perhaps the bad) in that contract could lost as well. I don't agree with this view, but that is how I interpreted it.

tim

[maxima]

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.

Can anyone please explain - what is exactly responsibility of employer if a contractor got caught by IR35? Will such employer pay NI restrospectively with interest and fee?

Why bill for the recent 2 fallen cases was so tall? (130K I believe)

[ASB]

Can anyone please explain - what is exactly responsibility of employer if a contractor got caught by IR35? Will such employer pay NI restrospectively with interest and fee?

Why bill for the recent 2 fallen cases was so tall? (130K I believe)

The responsibility of the employer is to pay the taxes on 95% of the contract income on a PAYE basis. The employer is, of course, still the intermediary (i.e. your company) not the agency, client or anbody else who might just happen to be in the contract chain.

[maxima]

Can anyone please explain - what is exactly responsibility of the client if a contractor got caught by IR35? Will the client pay employer's NI restrospectively with interest and fee?

Thank you

[Fred Bloggs]

No. You pay.

[Fred Bloggs]

In a nutshell, it is Hilliers ruling that really worries me. If other commissioners follow his lead this effectively means your contract clauses are meaning less on the say so of a HR numpty. In no other area of UK law are contracts so readily ignored.

[maxima]

If a contractor ruled to be in hidden employment and obliged to pay taxes as he would be paying being employee.. My question is - wont would-be employer in such a case (i.e. client) obliged to pay employer's NI which they would pay having employing that person as employee?

cant formulate it simpler... anyone?

[Jubber]

In a nutshell, it is Hilliers ruling that really worries me. If other commissioners follow his lead this effectively means your contract clauses are meaning less on the say so of a HR numpty. In no other area of UK law are contracts so readily ignored.

I still say that if you have taken all precautions to do what you are meant to, no Judge in the land will say you are 'personally' responsible for the above scenario if the contract signed by all parties clearly states that you can substitute. They were the working conditions that you 'to the best of your knowledge' completed the work. What more can a company do when it takes on work.? Check every clause in the contract and get each one signed off in the presence of four solicitors with the client, agency, Hector and contractor present.? That's why we have these legal documents, they state working conditions.

It needs to go before a judge - IMHO it will be thrown out before Hector has time to warm his backside.

[tim123]

If a contractor ruled to be in hidden employment and obliged to pay taxes as he would be paying being employee.. My question is - wont would-be employer in such a case (i.e. client) obliged to pay employer's NI which they would pay having employing that person as employee?

cant formulate it simpler... anyone?

No, The rules have been enacted by HMG specifically to avoid such a link.

Will people stop trying to put one in, it benefits nobody IMHO (OK obviously it benefits the first individual, but not the rest of us)

tim