Written agreement on substitution -- worth it?

[xara]

I have a contractual clause stipulating right of substitution. If asked, I reckon the client would agree in writing that this is practicable. There are another couple of guys who have a similar deliverable and we can be swapped one for another to a certain extent.

That said: the non-compete clause I signed was pretty draconian, and would be presumably binding on anyone I found to substitute for me; for a couple of days' worth of work no-one in their right minds would agree to this. To say nothing of getting them set up on the VPN, CRM, etc. etc.

Is it worth getting a written agreement from the client anyway that I could substitute?

[northernladuk]

You have written confirmation, it is in the contract and signed by both of you.

What you could get is a Confirmation of Arrangements letter from him which asks him a whole host of questions that are considered by IR35 and ask him to confirm your situation. These are most useful if there is an agent involved as there is no connection between you and the client so the working practices at the client could be different to those on the agents standard contract. The JLJ case that was a partial win concluded that his RoS was a sham and the client wouldn't have been likely to honour it so he was more or less shafted by his client. Having a Confirmation of Arangements letter at least shows that the client intended to honour the terms of the contract. Not sure how useful it is if you are direct as he should be honouring all aspects of the contract but still worth doing.

More information here including a template

IR35: Confirmation of Arrangements

Problem is in your RoS in your contract needs to be absolutely correct. I can't remember the exact wording but if the client reserves the right to refuse the substitution in anyway it will still fail IR35. He has to not be able to refuse it if he deems the sub has the right skills etc. Make sure your contract is checked by QDOS. Even if you do have a RoS in your contract it could be worthless.

Would you ever be able to put a sub in? I doubt it. I would reckon a huge majority of contractors are at a client that would refuse their subs because of the hassle, not worth setting them up and getting them up to speed or whatever.

[jamesbrown]

Yes, good advice from NLUK. A Confirmation of Arrangements has been shown to be useful, although it won't trump the reality of the situation. QDOS have a free template for the Confirmation of Arrangements. Even if there isn't an agency involved, these can still be useful, as some of the questions and answers may clarify points that are open to interpretation when looking at the contract alone (e.g. in the way of benefits provided to permies that are explicitly not provided to contractors etc.). Make sure you get it signed by someone that is familiar with the actual working arrangements though and not a random admin.

[xara]

Thanks for the replies.