ROS questions changed in ESS Tool

[mnctraining]

You can't easily, but it's the client that will be answering the question...

I agree that the client will be making the inside/outside determination and may use the tool for that purpose. But I am also using the tool as a "worker" to determine the inside/outside status.

My contract states that I may provide a substitute with the prior written permission of the client (which in my case would be the consultancy between me and the end PS client.

But as the prior answer to a ROS q was "no it hasn't happened yet" I don't know if that written permission would be given or whether the consultancy would defer to PS.

As a "worker" I "could" confirm that I have a ROS and be responsible for paying that substitute. But I'm not asked that.

I'm asked what would the client do if offered a substitute that I'm contractually allowed to provide. The possible answers should be at least yes / no / don't know.

[malvolio]

I agree that the client will be making the inside/outside determination and may use the tool for that purpose. But I am also using the tool as a "worker" to determine the inside/outside status.

My contract states that I may provide a substitute with the prior written permission of the client (which in my case would be the consultancy between me and the end PS client.

But as the prior answer to a ROS q was "no it hasn't happened yet" I don't know if that written permission would be given or whether the consultancy would defer to PS.

As a "worker" I "could" confirm that I have a ROS and be responsible for paying that substitute. But I'm not asked that.

I'm asked what would the client do if offered a substitute that I'm contractually allowed to provide. The possible answers should be at least yes / no / don't know.

The phrase "reasonably unfettered" is the key. If you can offer a subbie and the client is content they can do the job as well as you can under your direction then fine. Every other variation is up to negotiation. So a simple binary answer on the ESS tool isn't really viable.

f your relying on the tool to make the decision, it is only really binding on the client, although obviously you can use it to cross check their decision and (possibly) challenge them if you disagree.

But the IR35 appeal on either HMRC's or your side, if brought, will be on the existing case law, your working practices and the contract. As always, you can't really focus on one element.

Yes you should work with the client if you can to get a mutually agreeable solution. Sadly, a lot of people won't have that option.