Magic Bullets.
Quite, the clause is not. However the (sorry to shout) ABSOLUTE RIGHT OF SUBSTITUTION IS.
MacKenna in ReadyMix concrete case:-
A contract of service exists if these three conditions are fulfilled.
- The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.
- He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master.
- The other provisions of the contract are consistent with its being a contract of service.
If personal service is not required then, as a matter of law, it cannot possibly be employment.
This is, of course, why the IR will seek to argue that any substitution clause is a sham. Or does not represent a right to substitute, merely a right to ask to substitue. Or they will try to infer a contract with no substitution clause on the ground the client says "we wouldn't accept one" (notwithstanding the legal implications for the client if they did this in practice).
You may also wish to look in the IR status manuals ESM 1053 and 1054 - in which the IR say "if right to substitution, not possible to be an employee".
Moving on, you may also want to consider the means in which the IR may seek to apply IR35 if actual substitution has occured.
Originally posted by partimer
MacKenna in ReadyMix concrete case:-
A contract of service exists if these three conditions are fulfilled.
- The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.
- He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master.
- The other provisions of the contract are consistent with its being a contract of service.
If personal service is not required then, as a matter of law, it cannot possibly be employment.
This is, of course, why the IR will seek to argue that any substitution clause is a sham. Or does not represent a right to substitute, merely a right to ask to substitue. Or they will try to infer a contract with no substitution clause on the ground the client says "we wouldn't accept one" (notwithstanding the legal implications for the client if they did this in practice).
You may also wish to look in the IR status manuals ESM 1053 and 1054 - in which the IR say "if right to substitution, not possible to be an employee".
Moving on, you may also want to consider the means in which the IR may seek to apply IR35 if actual substitution has occured.
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