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

[LisaContractorUmbrella]

None at all, but the HMRC "self assessment" tests and the actual tests for IR35 status are not the same. It is possible to fall foul of the first and still be outside the second.

I am confident of my IR35 status, but I haven't lost money through a non-paying client and I haven't spent £1700 quid on advertising in one go. Both of which are high scoring parts of the self assessment tests and nothing to do with IR35.

Fair point - the goal posts have been well and truly moved since the legislation was introduced although I think the word HMR&C use is 'clarified'

[bobspud]

Don't forget that although the manager might well wish to reject all substitution, he is still bound by the agreement that the organisation signed. It won't be the first or last time a civil servant didn't understand what was signed...

[LisaContractorUmbrella]

It's the principal of the matter. I mentioned in another thread, I haven't yet received the email that went round about this, so I am leaving before I do. If they challenged me before then, I am pretty sure my IR35 contract review would be enough to get me on the "good list", but I'd rather not get involved any correspondence with procurement/HR since who knows what they will start asking for.

Besides this, I'm bored here already after nearly 9 months, so it's time to jump ship anyway.

I can understand how you feel - this is a pretty big upheaval. I do wonder though if part of the problem may have been caused by the intentional drafting of contracts to read as outside of IR35 without considering working practises

[bobspud]

I can understand how you feel - this is a pretty big upheaval. I do wonder though if part of the problem may have been caused by the intentional drafting of contracts to read as outside of IR35 without considering working practises

No. I have seen several home office contracts that have been drafted with absolutely no question what the relationship was to be. I have also been approached by MOD with regards to contracts based wholly on deliverables.

[RasputinDude]

I can understand how you feel - this is a pretty big upheaval. I do wonder though if part of the problem may have been caused by the intentional drafting of contracts to read as outside of IR35 without considering working practises

I think you're wrong here Lisa. In my view, the problem is that HMRC has shown a complete lack of integrity with regard to IR35 and we don't trust them. Obviously, I don't speak for all contractors, but from my point of view, HMRC are completely not to be trusted in being objective in determining whether a contractor is in business on their own account or is a disguised employee.

[MyUserName]

I think you're wrong here Lisa. In my view, the problem is that HMRC has shown a complete lack of integrity with regard to IR35 and we don't trust them. Obviously, I don't speak for all contractors, but from my point of view, HMRC are completely not to be trusted in being objective in determining whether a contractor is in business on their own account or is a disguised employee.

You certainly speak for me!

You must spread some Reputation around before giving it to RasputinDude again.

[GB9]

Reading through the posts it would seem that substitutes and the substitution clause were valid until this e-mail was sent. As someone had undertaken a substitution without any issue the clause was clearly valid at that time. The e-mail from Mr. Manager indicates that the clients approach has changed (not the contract). However, the contract now differs from the working practice and HMRC would likely jump on that.

Escape hatch.

[Rabotnik]

I can understand how you feel - this is a pretty big upheaval. I do wonder though if part of the problem may have been caused by the intentional drafting of contracts to read as outside of IR35 without considering working practises

I should think that these days any contractor worth their salt will have an IR35-proof contract as standard, hence the reason HMRC go for working practices, making the contract rather a useless defence.

I think RasputinDude summed up my feelings already. I don't trust HMRC and I would rather stay off of their radar. I think depending on how much they want to dig, they could get most people "caught". The easy one is the oft-discussed Right of Substitution. If HMRC asks the client if they would REALLY accept a substitute, I believe the majority would answer no.

So I will try make my defence as robust as possible, cross my fingers and not work in the public sector anymore.

[bobspud]

I should think that these days any contractor worth their salt will have an IR35-proof contract as standard, hence the reason HMRC go for working practices, making the contract rather a useless defence.

I think RasputinDude summed up my feelings already. I don't trust HMRC and I would rather stay off of their radar. I think depending on how much they want to dig, they could get most people "caught". The easy one is the oft-discussed Right of Substitution. If HMRC asks the client if they would REALLY accept a substitute, I believe the majority would answer no.

So I will try make my defence as robust as possible, cross my fingers and not work in the public sector anymore.

Don't forget that HMRC can get rid of your ROS but still lose in the event that your clients choose not to keep you on site while there is no work. The fact that most contractors finish a contract at some point and leave proves the point.

[Rabotnik]

Don't forget that HMRC can get rid of your ROS but still lose in the event that your clients choose not to keep you on site while there is no work. The fact that most contractors finish a contract at some point and leave proves the point.

Oh I wasn't aware of that, I thought no ROS = automatic fail.