Finding a substitute

[SpontaneousOrder]

Sorry, I meant that the client would be within their rights to refuse to let you send a substitute. Yes, it is the Agency's responsibility to ensure that their contract with Client enables substitues to be used.

Gotcha.

[Zero Liability]

Sorry, I meant that the client would be within their rights to refuse to let you send a substitute. Yes, it is the Agency's responsibility to ensure that their contract with Client enables substitues to be used.

And if it can't be, and they're aware of it, and the contract is so phrased so as to state that it can be, I can't see how this isn't fraudulent.

[psychocandy]

So I presume you consider yourself inside IR35 then?

I believe substitution is just one test for IR35 isnt it?

[northernladuk]

I believe substitution is just one test for IR35 isnt it?

It's one of the major three you have to have to be outside. Without it you are on a wish and a prayer at the very best.

I would also think if your IR35 insurance provider found out you knew it was a sham they would withdraw cover as well.

[psychocandy]

It's one of the major three you have to have to be outside. Without it you are on a wish and a prayer at the very best.

I would also think if your IR35 insurance provider found out you knew it was a sham they would withdraw cover as well.

Well I dont 'know its a sham' do I? This is based on the opinion of a bellend agent who seems to have more experience of flogging mobile phone contracts. After all, he didnt know that the sub cause was in the contract even.

I would suggest that if the clause is in there then the only relevant opinion is that of the client. At the moment, I have no reason to ask them.

I've never tried a subbie at any of my clients. Perhaps I'm wrong. Its just I'm pretty sure that most of them would not be 100% keen on the idea straight up. Im sure Im not the only one in this situation.

I can see how the subbie idea might work in a standard environment but IMHO every client is different. They all do things a little differently.
You might be the world leading authority on AIX for example, but if you get plonked on a random client site, there is some local knowledge that may be necessary.

To be honest, I can only ever see any client OKing a subbie if you offer a person for free for a few days to handover etc. Clients accept that a new contractor may take a day or two to learn they;re own systems but they aint gonna go for it twice.

[northernladuk]

Well I dont 'know its a sham' do I? This is based on the opinion of a bellend agent who seems to have more experience of flogging mobile phone contracts. After all, he didnt know that the sub cause was in the contract even.

Wish you would improve your attitude towards agents. You got a gig through him so what's with all the blanket aggression. Makes you look like a bell end constantly going on with the attitude. He's done everything you need him to do and you are making a packet out of it. What's your problem?

I would suggest that if the clause is in there then the only relevant opinion is that of the client. At the moment, I have no reason to ask them.

Yes you do. The agent has said he won't go for it. Ignorance is not a defence in legal issues.

I've never tried a subbie at any of my clients. Perhaps I'm wrong. Its just I'm pretty sure that most of them would not be 100% keen on the idea straight up. Im sure Im not the only one in this situation.

Maybe but it hasn't been tested so know one knows. It is reasonable to assume if it is in the contract it will stand unless you know otherwise, which you do in this situation.

I can see how the subbie idea might work in a standard environment but IMHO every client is different. They all do things a little differently.
You might be the world leading authority on AIX for example, but if you get plonked on a random client site, there is some local knowledge that may be necessary.

To be honest, I can only ever see any client OKing a subbie if you offer a person for free for a few days to handover etc. Clients accept that a new contractor may take a day or two to learn they;re own systems but they aint gonna go for it twice.[/QUOTE]

Works for the big outsources, they are forever changing bodies.

Argue it as much as you want and try and justify it to yourself, it's your life. You know you have a sham situation that won't work so your working practices trump your contract.

The JLJ case caused some discussion about RoS and everyone seems to think the judgement was wrong and the real argument is that the RoS wasn't tested so can't say it was a sham in court, no one knew. In your case you did so that defence will just evaporate.

It's black and white. Up to you to think about it carefully, weigh up the risks and do what you want.

[psychocandy]

Argue it as much as you want and try and justify it to yourself, it's your life. You know you have a sham situation that won't work so your working practices trump your contract.

The JLJ case caused some discussion about RoS and everyone seems to think the judgement was wrong and the real argument is that the RoS wasn't tested so can't say it was a sham in court, no one knew. In your case you did so that defence will just evaporate.

It's black and white. Up to you to think about it carefully, weigh up the risks and do what you want.

Nope. I disagree. I dont know its a sham.

The fact that this particular agent did not even know that the substitution clause existed in their contract and did not even know what it was, confidently leads me to believe that they've never had this specific conversation with the client.

I know when I first started many years ago, I asked my first ever agent these questions:-

1. So what are working hours?
His answer - most people work 8-6. Complete bollacks of course and, as I found out, he made this up completely. Better to tell me something he'd rather me do (i.e work longer) to keep his client happy and cut rolling in.

2. So can I take time off at all?
His answer - no client doesnt like time off. Complete crap again. Of course, time when I'm not there is time when theres no cut for them so better if I take no time off.

Same with the sub thing. He didnt know so erring on the side of caution hes tried to talk me out of. Just in case.

Not the first time that an agent will give out information that suits themselves rather than bothering to actually ask the client.

Haven't there been a few people on here who asked agent to clear holiday plans with client then got on site to find out they had no idea? Same principle with agent. Don't upset client and keep cut rolling in.

[northernladuk]

Nope. I disagree. I dont know its a sham.

The agent says client won't go for it. How isn't it a sham then?

The fact that this particular agent did not even know that the substitution clause existed in their contract and did not even know what it was, confidently leads me to believe that they've never had this specific conversation with the client.

That's even worse. A good assumption here would be the client won't go for it either. Bearing in mind working practices trump the contract I don't know why you are bothered with what's in the contract. You know the score.

HMRC to agent : Will the client allow RoS
Agent to HMRC : No, I told the contractor this before he started.
HMRC to agent : Thank you very much!!

QDOS to contractor : Thanks but no thanks, goodbye.

Anyway, it's up to you.

[jamesbrown]

It's one of the major three you have to have to be outside. Without it you are on a wish and a prayer at the very best.

I would also think if your IR35 insurance provider found out you knew it was a sham they would withdraw cover as well.

I don't entirely agree with this, except the importance of not having sham clauses. It isn't necessary to demonstrate all three. It's one of three and, in my opinion, not the most important one (it's the unfettered right that matters, but, unless you've demonstrated the right, it will always be suspect). I'd be far more concerned about evidence of D&C or, to put it differently, I'd be much more confident in a situation where there was a clear lack of D&C, backed up by evidence. Employees are always under D&C. A strong contract and working practices should evidence, in all possible ways, the lack of D&C (what, where, when, how).

[northernladuk]

I don't entirely agree with this, except the importance of not having sham clauses. It isn't necessary to demonstrate all three. It's one of three and, in my opinion, not the most important one (it's the unfettered right that matters, but, unless you've demonstrated the right, it will always be suspect). I'd be far more concerned about evidence of D&C or, to put it differently, I'd be much more confident in a situation where there was a clear lack of D&C, backed up by evidence. Employees are always under D&C. A strong contract and working practices should evidence, in all possible ways, the lack of D&C (what, where, when, how).

Well most good guides on IR35 name RoS as one of the main three flags. I certainly would not want to go in to an investigation knowing I was only 66% covered and even that is then subject to enhanced scrutiny due to one of them being dismissed from the outset.

I certainly don't agree it's one of three at all. QDOS fail a contract on any of these, not on the basis one works and the rest is missing for a start.