Subcontract existing contract
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    Default Subcontract existing contract

    I'm currently in the middle of a 6th month contract, and my existing contract clearly states that I'm able to sub-contract my existing contract to someone else. As long as that person is judged by the client to be competent and able to complete the task, then the request to subcontract will be reasonably considered.

    I've been offered a 2nd contract, and have a contact who is available and would be perfectly suited to perform the rest of my existing contract.

    Does anyone have any advice on how to approach this situation? Is the clause in the contract simply there to avoid IR35, or does the client have to allow me to subcontract the role if the person is competent. If they refuse to let me subcontract the role, is there any legal basis for enforcing this?

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    First, you need to distinguish between subcontracting (contracting another company to do the work) and substitution (assigning another person "within" YourCo to do the work). In both cases, YourCo retains overall responsibility (subject to the contract clauses), but the latter specifically involves sending someone on your behalf, and all administration is performed by YourCo (even if the other party is a self-employed person or operates via another contracting company). There are likely to be separate clauses on subcontracting (how ordinary business operate) and substitution (how contracting businesses sometimes operate).

    As to whether the clause is a sham, do you have any reason to believe it might be? Otherwise, you can indeed test it. The clause may provide a fettered right, so you will need to ensure that the conditions are met, and the client might reasonably refuse under some conditions (e.g. not qualified). Obviously, if the conditions are met, and they refuse, that constitutes a breach of contract which, in practice, may not be worth much to you, and may also undermine your IR35 position, depending on other factors.

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    If you are going to do this it is up to you to resource the person, get them infront of the client so they can meet and assess them. You then have to do a handover at your cost to the new person so they can pick up your work and continue where you left off. This could take weeks and I assume the other person will want paying.

    It's not just a matter of throwing a new body at a client after you've left. They might just as well go back to the agency and get them to look for the right person... which is all likelihood is what is going to happen anyway.
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