can other peoples' working practices affect your IR35 status?

[TheFaQQer]

If yours and the upper level contract both say they WILL accept a substitute, they can stick their HR numpty's opinion where the sun doesn't shine...

Not necessarily - it's about the implied contract which is in force when you go through an IR35 investigation.

So, if the HR person says "we'd never have allowed that to happen..." then that would have quite some bearing on your defence.

[TheFaQQer]

Right, time for a numpty question, but its all in the name of understanding...

Isn't an unfettered ROS a bit of a pipe dream?

Using the oft-quoted plumber example, I'm not sue I would allow a plumber to substitute and/or subcontract to another tradesman at will without at least checking him out for myself. To do so could expose you to all sorts of nasty consequences if things went wrong, and I can't see ClientCo's giving this right out too freely.

Thoughts?

Isn't that what insurance is for?

[LisaContractorUmbrella]

Right, time for a numpty question, but its all in the name of understanding...

Isn't an unfettered ROS a bit of a pipe dream?

Using the oft-quoted plumber example, I'm not sue I would allow a plumber to substitute and/or subcontract to another tradesman at will without at least checking him out for myself. To do so could expose you to all sorts of nasty consequences if things went wrong, and I can't see ClientCo's giving this right out too freely.

Thoughts?

The thinking behind it is that an unfettered ROS indicates that you are running a business rather than acting as a disguised employee. So, to use your example, if you contacted a big firm of plumbers (rather than a man in a van) it would not matter to you who turned up and whether the same guy turned up on the next day provided that the work was guaranteed by the firm that sent either plumber

[Chugnut]

Not necessarily - it's about the implied contract which is in force when you go through an IR35 investigation.

So, if the HR person says "we'd never have allowed that to happen..." then that would have quite some bearing on your defence.

I know what you're saying but there's so many variables and it's so full of holes I'd expect my insurer to have them for breakfast. I'd also be tempted to sue the agency & client for including terms in their contract which deliberately negate mine without my consent or knowledge. I'll have some employee rights and back-dated holiday whilst I'm at it, please.

Do they seriously expect us to go to our clients and their HR departments every week and double check our contracts against theirs, and both parties understanding of our working practices on the off-chance that someone's changed their mind since we last did it, so all bets are off?! My contract would be terminated on grounds of being an annoying %*^&#! Surely one of the points of having a contract is to prevent these questions being asked over and over again and remove any such ambiguity?

This fog of uncertainty due to semantics and hair-splitting totally winds me up. What other service industry has to tolerate this rubbish? I can think of many examples where any client would reject a ROS (critical new release of code to Production), and where they would accept one (business as usual development). If the inquiry comes at the wrong time and the HR person gives the answer of the day, I'm found inside IR35? I don't think so.

I have insurance so I don't have to entertain these cretins and their banality.

[Chugnut]

The thinking behind it is that an unfettered ROS indicates that you are running a business rather than acting as a disguised employee. So, to use your example, if you contacted a big firm of plumbers (rather than a man in a van) it would not matter to you who turned up and whether the same guy turned up on the next day provided that the work was guaranteed by the firm that sent either plumber

I'm actually having some plumbing work done and here's where the example doesn't hold water - pun intended.

Our first plumber (Plumber A) does over half the central heating and pressurised tank, then hurts his knee and looks like he might be laid up for a while. We look at engaging Plumber B therefore effectively invoking the building firm's ROS. However, the building firm and I agree that Plumber B will have to take a while getting up to speed and gaining familiarity with the system so far, so I refuse the ROS. We get on with other jobs for a couple of weeks, and Plumber A is finally well enough to return to work, and completes the system.

If we were just having a couple of rads installed, Plumber B would have been engaged no problem. So for different scenarios, I'm either accepting or revoking a ROS. IR35 or not then.

And as the end client, at no point did I consider either plumber a bloody disguised employee either!!

[LisaContractorUmbrella]

I'm actually having some plumbing work done and here's where the example doesn't hold water - pun intended.

Our first plumber (Plumber A) does over half the central heating and pressurised tank, then hurts his knee and looks like he might be laid up for a while. We look at engaging Plumber B therefore effectively invoking the building firm's ROS. However, the building firm and I agree that Plumber B will have to take a while getting up to speed and gaining familiarity with the system so far, so I refuse the ROS. We get on with other jobs for a couple of weeks, and Plumber A is finally well enough to return to work, and completes the system.

If we were just having a couple of rads installed, Plumber B would have been engaged no problem. So for different scenarios, I'm either accepting or revoking a ROS. IR35 or not then.

And as the end client, at no point did I consider either plumber a bloody disguised employee either!!

But the fact is there were 2 plumbers to choose from i.e. it was not a one man limited company.

[Chugnut]

But the fact is there were 2 plumbers to choose from i.e. it was not a one man limited company.

But it is a one-man limited company. Both plumbers are sub-contractors. It could have just as easily been the one man, and a sub-contractor though. The guy who owns the limited is actually a general builder and probably could have done some of the work himself but since he isn't OFTEC registered in this instance he couldn't.

But the end game is the same; in some circumstances I would have accepted the ROS, in others I wouldn't.