Irate Public sector client's manager sends e-mail rejecting Substitutions

[Rabotnik]

Don't count on it. They can still refuse to accept it and insist you take the test.

I'm still in a PS contract now but I'm taking the line that if they ask me, I will refuse and they can terminate my contract if they want to (since that is the stated sanction).

CV is being dusted off as we speak.

Yup, not sure how far they want to go with this, hence me leaving before they notice me.

By the way, even if you say you will quit, they will take this as non-compliance and report you to HMRC. That's what the internal mail here said.

Edit: Actually, I'm not sure if it was on the internal mail, but the contractor who forward it to me said she immediately told procurement that she will quit to avoid any investigation, but they said she would then be placed on a non-compliance list to be sent to HMRC. The wording on the email is "If CLIENT does not receive any formal communication from
you in this regard or if you do not provide the necessary assurances
within the maximum 20 day period, your details will be forwarded to Her
Majesty's Revenue and Customs (HMRC) in accordance with the
requirements set out by HMT."

[bobspud]

I realise there is a very good chance that I may be flamed for this but am genuinely interested - if you are confident of your IR35 status what's the problem with taking the test and proving it to client co???

Because many of the places in question did not follow the guidelines that's were set and have gone way OTT

QDOS have setup a perfectly good solution to this mess but my last lot were only prepared to accept HMRC contract reviews. (Much to the distress of HMRC)

-Rasputin: yes the procurement guys at my last client spent 6 months driving me mad With their processes. So I can more or less qute the bible on it

To those of you being threatened with automatic disclosure to HMRC you need to look at you contract to ensure you granted the client the permission to even ask you the question. I had the old capital contract so when they asked me, I pointed out that I never had the updated contract and as such never granted my permission for them to ask. They agreed and took my name off the list. Very vogon but handy to know...

[IR35FanClub]

I realise there is a very good chance that I may be flamed for this but am genuinely interested - if you are confident of your IR35 status what's the problem with taking the test and proving it to client co???

It would be hard for most contactors to get into the low risk category, unless theyve done an actual substitution (or lost 10% of their annual turnover on a project). But doing my own invoicing and a few other things to get an extra point here or there I managed to get into medium risk. That wasnt taking the official test though, just reading the questions. Didnt want to get a low score and draw attention to myself.

I also had a contract review done, but felt that my answers might well be different to client org management and it wasnt worth the risk staying.

And finally if they want to screw us for tax. they can @@@@ off. I pay more tax in pounds than most people I know. I dont get more healthcare, police protection, education and training and roads than anyone else. And im not entitled to income support or the services of an employment tribunal as Im a company director not an employee (when it suits them).

[centurian]

I think Lisa's point is - if you are so sure about your underlying IR35 status, why would you care if your results to the test put you in the high risk category - and also whereby they report you to HMRC. If/when HMRC come knocking, you would sail straight through a status inspection.

[bobspud]

I think Lisa's point is - if you are so sure about your underlying IR35 status, why would you care if your results to the test put you in the high risk category - and also whereby they report you to HMRC. If/when HMRC come knocking, you would sail straight through a status inspection.

Even if you do sail through, It takes up time and costs you money in representation fees. Why would you want to get involved in that game just because a civil servant won't follow their own guidelines?

[RasputinDude]

I think Lisa's point is - if you are so sure about your underlying IR35 status, why would you care if your results to the test put you in the high risk category - and also whereby they report you to HMRC. If/when HMRC come knocking, you would sail straight through a status inspection.

Well, as I understand it taking the test or having HMRC review a contract would invalidate my IR35 insurance. So I'd get a nice painful investigation out of HMRC and lose the protection that I had to cover my legal fees.

Why would I open myself up to more cost? Now, if HMRC would agree to refund my legal fees when they have found that I outside of IR35 and in business on my account, then I'll happily submit to the investigation.

[BolshieBastard]

All these contractors jumping ship probably explains all these NHS roles Im seeing on JS. Piss poor rates being offerred though. 150 quid a day. I dont get out of bed for that!

[7specialgems]

I currently supply programming services to Government department, and contain a clause for Substitution in my contract.

A colleague of mine returned to India over the Christmas period and successfully hired and deployed a Substitute to meet the obligations of his company during the period. The worker was hired on a casual per hour basis and was successfully cleared to work on the site.

My colleague duely returned to work in the first week in January.

We have received word this morning that a manager several layers above us has thrown his toys about the Substitute ever having been allowed to take the place of my colleague, who is currently jumping up and down in a meeting room pointing at his contract and his right to supply a substitute.

All other contractors in the team (myself included) have today received an e-mail from said manager, stating that "despite what may be written into your contracts the company expects YOU to supply the services as per your contracts despite the presence of any substitution clause"
and that

"any requests/instructions that a substitute will be provided for any period of time will be flatly rejected by the company".

This leaves myself and my fellow contractor colleagues nervous that the clause for substitution is a sham clause that the end client clearly has no further intention to honour.

I say further, because my colleague's substitution clause was undoubtably honoured over the Xmas 2012 period.

In the opnion of the forum, does this mail shot constitute a change to my contract which I cannot argue against?

Given that March is looming, this is the public sector and that my contract expires at the end of February I anticipate that I and many other contractors shall be fleeing the public sector.

Thanks for all the responses on this one everyone. It has been really helpful.

In my situation, with the email missive, I have since reviewed by contract and found that there is a clause in there which states that I have to receive an amendment in writing, and both myself and the referring Employment Business need to sign it in order for it to take effect.

Not much chance of that happening...

After a day's digging, it isn't clear to me if this middle manager is just whinging because his subordinate authorised the RoS invocation.

Given that the market is quiet at the moment, my working plan is to try and limp a renewal through to April, before jumping ship to the Private Sector when the market opens up in the new financial year.

At the very best, the working practices mentioned above give me a precedent in my team for invoking RoS.

At the very worst, the remarks of said manager creates sufficient doubt in my mind for me not to outstay my welcome.

My PS contract contains features to supply evidence proving ITEPA and SSCBA compliance (so basically IR35 and MSC leg), which IMO would make me a fish in a barrel for HMRC's investigation team if I stay beyond 6 months anyway.

[7specialgems]

All these contractors jumping ship probably explains all these NHS roles Im seeing on JS. Piss poor rates being offerred though. 150 quid a day. I dont get out of bed for that!

Less than you'd get average as a Senior permie with all the benefits. You have to laugh or you'll cry...

[centurian]

In my situation, with the email missive, I have since reviewed by contract and found that there is a clause in there which states that I have to receive an amendment in writing, and both myself and the referring Employment Business need to sign it in order for it to take effect.

But has anything changed. The email doesn't mean a change in contractural terms - it just notifies you how he intends to operate the existing terms - that he will reject substitutes - as he is "reasonably" entitled to do.

At the very worst, the remarks of said manager creates sufficient doubt in my mind for me not to outstay my welcome.

HMRC would jump on it and say that the clause always was a sham - and the previous execution of the clause by another team member only serves to back this up - as the team member stepped outside what the clientco manager believed was the underlying working practice - and is therefore clamping down to ensure it doesn't happen again.

Walk or pay up, IMHO.