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

[beaker]

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.

[thunderlizard]

It shouldn't be. any 1 of the 'boxes' ought to be enough. A shame about the substitution though, because it's the easiest to demonstrate convincingly. Control and mutual obligations can get a bit blurry, but if somebody who's demonstrably not you comes along and does the work, that's hard to argue against.

[Turion]

Who says that you have to invoke the sub clause? and why would you anyways? If you invoke it the client can accept or veto as he chooses. Main thing is that it is written in the contract. My contracts always have the sub clause which I've never used - yet.

[BrilloPad]

try the ask beaker thread

[beaker]

The interpretations made in this case still bother me though...

http://www.contractoruk.com/news/003617.html

[Fred Bloggs]

Those recent cases will bother anyone who hasn't got their head up their own backside. At the moment it's a lottery. Don't hold your breath waiting for it to get any better either.

The noose is slowly tightening around the neck of the contracting industry.

After all, it's only fair.

[malvolio]

The interpretations made in this case still bother me though...

http://www.contractoruk.com/news/003617.html

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). Don't fogrget MKM failed on other key factors like D&C: all else being equal, lack of an RoS is not a killer of itself, if the contract is generally outside IR35 on other factors, you are probably OK (although there are no certainties!)

[sidknows]

as I understand it , they look at the overall scenario
One factot will not make you fail or pass ir 35

[Fred Bloggs]

But if everything else is 50/50 then one factor will indeed tip the case one way or the other.

[Cheshire Cat]

qdos, pcg and others provide insurance that will pay the costs (up to a specified max) of defending an investigation, and some insurances will even pay out any losses (up to a specified max) to HMRC should your defence fail.
If you're really worried, get your contract reviewed by one of the companies that provides this service, get it amended if necessary, and insure yourself to the hilt.