CEST Substitution question wording

[eek]

The right to substitution is part of the contract so afaics is purely about words? The environment has to comply with the words not the other way around.

As with anything the actual situation trumps what the contract says.

A tribunal will create a hypothetical contract based on the reality of the situation not the paperwork.

[Rafd]

As with anything the actual situation trumps what the contract says.

A tribunal will create a hypothetical contract based on the reality of the situation not the paperwork.

I'm unclear how the reality can differ from the contract in this case? If the contract states you have the right to substitute then the client can't refuse?

[eek]

I'm unclear how the reality can differ from the contract in this case? If the contract states you have the right to substitute then the client can't refuse?

They can - your clause says with "prior written approval of ClientCo" it does not say the approval will be given...

The QDOS version says you notify the client and the substitution has to be accepted unless specific reasons fail to be met.

The reality is that a client could have a contract between the client and your agency saying no substitutions - that would trump your paperwork and would just result in your client not sending approval.

[northernladuk]

I'm unclear how the reality can differ from the contract in this case? If the contract states you have the right to substitute then the client can't refuse?

Because working practices trump the contract. The client has ultimate say but your contract is an arms length play to stay outside IR35 between you and the agent. Many people are starting to find this out.

[johnnyk]

The reality is that a client could have a contract between the client and your agency saying no substitutions - that would trump your paperwork and would just result in your client not sending approval.

I'm waiting for my status determination to happen. My client is going to use CEST and I've been told that, in order to go through the whole thing, they are going to use the contract between them and the agency as well.

When I started, I got my IR35 assessment from QDos based on my contract: how on earth it is possible that my status is now going to be assessed using a contract I've never seen or signed?

[Rafd]

They can - your clause says with "prior written approval of ClientCo" it does not say the approval will be given...

The QDOS version says you notify the client and the substitution has to be accepted unless specific reasons fail to be met.

The reality is that a client could have a contract between the client and your agency saying no substitutions - that would trump your paperwork and would just result in your client not sending approval.

Sorry I was talking about an ideally worded contract such as the QDOS one rather than my original clause. Also in my case there is no agent, the contract is directly with the client.

[Rafd]

Because working practices trump the contract. The client has ultimate say but your contract is an arms length play to stay outside IR35 between you and the agent. Many people are starting to find this out.

In my case there is no agent. I fail to see how the substitution clause could be an arms length play in this case unless it was absolutely unrealistic to find a substitute. The contract would force the client to accept a suitable one in reality as well as on paper.

[Rafd]

Going back to my second question, the current clause:

"The Consultant may, with the prior written approval of ClientCo, appoint a suitably qualified and skilled substitute for any of its Personnel"

To me, the wording of this is a grey area, it is unclear if the 'prior written approval' is indiscriminate or based on the suitability. I take it from the other replies that this clause would result in a YES to client being able to reject a sub and I would need to get the client to agree to something more along the lines of the QDOS clause?

[jamesbrown]

Going back to my second question, the current clause:

"The Consultant may, with the prior written approval of ClientCo, appoint a suitably qualified and skilled substitute for any of its Personnel"

To me, the wording of this is a grey area, it is unclear if the 'prior written approval' is indiscriminate or based on the suitability. I take it from the other replies that this clause would result in a YES to client being able to reject a sub and I would need to get the client to agree to something more along the lines of the QDOS clause?

The test is a right that should not be unreasonably fettered. If the client can reject for any arbitrary reason, that is unreasonably fettered. So the words do matter, but only if they reflect reality. The real test is what the client would do when you offer someone suitably cleared and qualified. They must accept.

[ChimpMaster]

Unfortunately the only rock solid way to get over the ambiguity is to actually put a substitute in place, if even for a single day just to prove the process.

Otherwise, wording on a contract can always by overturned by any client person saying that they would have ultimate decision over any subs.