Hi
I am discussing ROS with the end client = They have said in the SDA there is no ROS - this is what they said latest - so I can or can't sub? Totally confused now...
"It is not the fact that a substitute can’t happen, case law states that it needs to be an unrestricted and you need to look more broadly than the contract if it can actually occur without prior approval.
In reality, x would want to check the person will be sufficient to perform the task at hand and also check that from a personality perspective they would fit in with the team etc. Also, in the majority of cases they couldn’t deal with the discontinuity that bringing someone in would cause in bringing them up to speed with the project and then the disruption caused by the contractor then picking up the work again.
The case law mentions that x can check they are qualified for the role and there still be a genuine right to substitution but this is for specific roles where qualifications are mandatory and isn’t meant in a way where x would want to check further details on the individual.
So x would respect the T + Cs in a specific situation but this doesn’t pass the relevant IR35 test. You can send a substitute legally just not in the way recognised as a genuine right to substitution for the purposes of IR35."
I am discussing ROS with the end client = They have said in the SDA there is no ROS - this is what they said latest - so I can or can't sub? Totally confused now...
"It is not the fact that a substitute can’t happen, case law states that it needs to be an unrestricted and you need to look more broadly than the contract if it can actually occur without prior approval.
In reality, x would want to check the person will be sufficient to perform the task at hand and also check that from a personality perspective they would fit in with the team etc. Also, in the majority of cases they couldn’t deal with the discontinuity that bringing someone in would cause in bringing them up to speed with the project and then the disruption caused by the contractor then picking up the work again.
The case law mentions that x can check they are qualified for the role and there still be a genuine right to substitution but this is for specific roles where qualifications are mandatory and isn’t meant in a way where x would want to check further details on the individual.
So x would respect the T + Cs in a specific situation but this doesn’t pass the relevant IR35 test. You can send a substitute legally just not in the way recognised as a genuine right to substitution for the purposes of IR35."
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