Contract for service / Contract of service

[d000hg]

Having an unfettered right of substitution is the easiest way to win your IR35 investigation.

Yes but it's also the least likely to actually achieve in practice.

[TheCyclingProgrammer]

Politely explain that since the client are engaging an individual rather than your company, you will need to be inside IR35 for this contract. Therefore, your rate has just had to go up by 30%.

That's the only thing you can do from here, apart from walk away completely.

I'm not arguing against playing hardball, which is what you seem to be advocating, but requiring a specific individual isn't necessarily a showstopper as far as IR35 is concerned. You can get the contract amended to not mention a specific individual and have an unfettered RoS clause but if the client would never agree to another individual/sub anyway, the clause is meaningless isn't it?

OP only needs to show lack of direction and control or MOO to be outside IR35. Obviously the more tests you can pass the better, but I wouldn't let one failed test put me off a contract if the money was good.

I don't think needing to be on-site is a showstopper either, if the client has a good reason to require the contractor to be on site. In practice, how many clients are happy for contractors to work from home?

Edit: I replied before I saw d000hg made the same point. I agree generally that if the contract is as bad as it sounds, then lack of proper RoS might just be the tip of the iceberg when it comes to working practices.

[suityou01]

I'm not arguing against playing hardball, which is what you seem to be advocating, but requiring a specific individual isn't necessarily a showstopper as far as IR35 is concerned. You can get the contract amended to not mention a specific individual and have an unfettered RoS clause but if the client would never agree to another individual/sub anyway, the clause is meaningless isn't it?

OP only needs to show lack of direction and control or MOO to be outside IR35. Obviously the more tests you can pass the better, but I wouldn't let one failed test put me off a contract if the money was good.

I don't think needing to be on-site is a showstopper either, if the client has a good reason to require the contractor to be on site. In practice, how many clients are happy for contractors to work from home?

Edit: I replied before I saw d000hg made the same point. I agree generally that if the contract is as bad as it sounds, then lack of proper RoS might just be the tip of the iceberg when it comes to working practices.

Totally this. Or rather "the straw that broke the camels back"

[TheCyclingProgrammer]

Out of interest, has OP even broached the subject of opting out (or rather, not opting out)?

[suityou01]

Out of interest, has OP even broached the subject of opting out (or rather, not opting out)?

Bit of a weird one. Opting out means that you need to do this before being submitted to the Client (or setting foot on Client turf or engaging in a telephone interview - the meaning of first contact is a grey area).

So if the client contact you directly, invite you for interview, AND THEN tell you that you need to go through an agency then any kind of opt out is too late technically.

[DirtyDog]

I'm not arguing against playing hardball, which is what you seem to be advocating, but requiring a specific individual isn't necessarily a showstopper as far as IR35 is concerned. You can get the contract amended to not mention a specific individual and have an unfettered RoS clause but if the client would never agree to another individual/sub anyway, the clause is meaningless isn't it?

If the contract specifically mentions you as an individual, then I would guess that the chances of getting a decent insurance policy to cover the contract would be slim. At this stage, I'd be wanting some kind of cover in place, unless you are confident of avoiding an investigation completely. As I said above - if the contract wording is correct, then you can at least argue that you have a reasonable expectation that the clauses would be honoured.

OP only needs to show lack of direction and control or MOO to be outside IR35. Obviously the more tests you can pass the better, but I wouldn't let one failed test put me off a contract if the money was good.

I agree. Although, if they are going to knock out one of the three tests without really considering it, then the chances of them saying something at an investigation along the lines of "no, we saw him as an employee and expect him to be one" are higher. Which comes back to getting insurance...

I don't think needing to be on-site is a showstopper either, if the client has a good reason to require the contractor to be on site. In practice, how many clients are happy for contractors to work from home?

I agree.

Edit: I replied before I saw d000hg made the same point. I agree generally that if the contract is as bad as it sounds, then lack of proper RoS might just be the tip of the iceberg when it comes to working practices.

Getting a right of substitution clause in the contract should be the easiest thing in the world (regardless of whether it's a true reflection of the working practices or not). The fact that they aren't even going to that little effort would worry me with regards to any other IR35 defence.

[DirtyDog]

Bit of a weird one. Opting out means that you need to do this before being submitted to the Client (or setting foot on Client turf or engaging in a telephone interview - the meaning of first contact is a grey area).

So if the client contact you directly, invite you for interview, AND THEN tell you that you need to go through an agency then any kind of opt out is too late technically.

You're right.

Good luck getting the agency to understand that

[d000hg]

If the contract specifically mentions you as an individual, then I would guess that the chances of getting a decent insurance policy to cover the contract would be slim.

Isn't it quite normal for a contract to mention who they are expecting to turn up? If it doesn't, the whole RoS is moot because you have to have someone TO substitute, surely?

[TheCyclingProgrammer]

Bit of a weird one. Opting out means that you need to do this before being submitted to the Client (or setting foot on Client turf or engaging in a telephone interview - the meaning of first contact is a grey area).

So if the client contact you directly, invite you for interview, AND THEN tell you that you need to go through an agency then any kind of opt out is too late technically.

Sure, I'm aware of how the opt out works and how that differs from how most agencies *think* it works. I was just wondering when you were going to join the list of people in this thread. From the sounds of things, if what you currently have is an "opted out" contract, I dread to think what an "opted in" contract will look like (even though we all know this shouldn't make a difference).

[DirtyDog]

Isn't it quite normal for a contract to mention who they are expecting to turn up? If it doesn't, the whole RoS is moot because you have to have someone TO substitute, surely?

Not that I've seen. I would expect the name of a designated representative to be mentioned in a schedule which is attached to the contract terms and conditions, but I don't think I've ever seen it in the contract itself.

YMMV.