Quick question about substitution (and what qualifies as having sent a substitute)

[stubbo]

Does 'sending a sub' have to mean sending to the client location? I work remotely some of the time so would there be any reason my sub couldn't work remotely when doing the remote work for me, and if so what proof would need to be gathered that the substitute ever happened (aside from them invoicing me for work undertaken for me on that day, and me sucking up a day of not being paid)?

Also, how removed from my end client does a substitute I provide need to be?

Assumedly two people at the same company under contract couldn't sub for each other say on different days? E.g. I'm working on a project as a BA and know a PM on another project. If we both took time off/were unavailable at the same time, but I offered them to sub for me on my project whilst I was away and then client paid me and I paid them via my LTD?

If that's not a go-er, then assume it would be ok to sub in someone that used to work for the client (perm) but has now left (unattached/doing their own thing) for a day's worth of time?

I've had a look around the forums and see talk about whether a clause is sham or not, but not about the specifics of the action that satisfies the proof of the clause, and specifically that statement on CEST of "Has a substitute accepted by the client been provided in the last 12 months"?

Thanks for any advice you can offer on this subject. Also first post, so go gentle if I've broken any kind of cardinal rule in asking these questions!

[Lance]

I think your client would have to have been seen to accept a substitute.

You can't just let your mate use your login and do your work for you and claim that was using a genuine RoS. For a start you'd breacxh the clients secuiryt rules and end up a different world of tulip.

Just think it through.... HMRC come knocking, you say "I've used a sub", they say "prove it."
I would suggest that you need
- somethwing written from the client, saying "yes, he can come in and do your job"
- and you also have a timesheet proving that he did actually do your job
- And also that YOU got paid for him doing your job.

that should cover it I think.

[GhostofTarbera]

Would your remote sub really be you? But you wear a hat for any conference call?

Or a friend who invoices you, and a few months later you sub for him and invoice same amount?


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[Lance]

Would your remote sub really be you? But you wear a hat for any conference call?

Or a friend who invoices you, and a few months later you sub for him and invoice same amount?


Sent from my iPhone using Contractor UK Forum

you've tried that before haven't you????

[northernladuk]

Substitution, although arguablely literally correct, is not you mate taking over the work for a day here and there. Thst would come under a different type of engagement and I wouldn't think any client would really accept this let alone the courts.

Substitution is providing a suitably skilled replacement that has been brought up to speed and can step in to continue to deliver seemlessly to the client. OK some nuances there that there may need some ramp up time for the sub but you should be getting them up to speed in your time at no cost to the client.
This generally means that a sub for the day or week while you are on holiday just isn't feasible so no point looking for little bits of work to try prove a sub. Do it properly or don't do it at all and refer the clause.

That IMO and we've got tons of discussion on it if you use the Google search method.

[jayn200]

I don't know if it would qualify or not. Unless there is a specific case with the same circumstances that's been litigated before no one else knows either. It's just about assessing the risk.

You can definitely make an argument that it would qualify as sending a substitute and I think most people would make that argument, it's just about whether or not it would hold up. I am a contractor though not anyone with legal or accounting professional expertise so I am not sure.

I do know that a professional services business would typically not just sent another consultant if the consultant was on holidays. That's really inefficient. They would rather just plan around the client project and the consultants holiday schedule. The time when a substitution would be more likely would be in the case the consultant left the company or stopped working on the contract for some reason or had an extended illness.

A real business would never make a plan to use a substitute because it's an inefficient way of conducting business. Trying to do that to establish ir35 status just seems a little silly to me.

If you want to do some planning to stay outside ir35 you're probably better off planning to use subcontractors for part of the work. That's something that can be planned and will usually keep you outside ir35. It seems like you possibly have the means to do this so it might be a good idea. Again you should probably get professional advice in setting this up to ensure you do it correctly. If you want to use subcontractors with an existing contract you have in place, please review the contract and make sure you are allowed and get any authorizations necessary.

It does add a complexity to your business but on the other hand if you can effectively manage subcontractors it really opens up additional revenue for you and you can end up making a lot more money. Of course that's at a higher risk, but hey that's the difference between employment and business.