CEST Substitution question wording

[Rafd]

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.

It would seem from the CEST question wording that even having used a sub would not demonstrate that the client has no right to refuse.

[eek]

It would seem from the CEST question wording that even having used a sub would not demonstrate that the client has no right to refuse.

But the fact you've used a sub would trump any paper argument... Remember it is reality on the ground HMRC are concerned about not paperwork...

[ChimpMaster]

It would seem from the CEST question wording that even having used a sub would not demonstrate that the client has no right to refuse.

If you have actually introduced a sub correctly, paid him through your company etc , then it means that the client has accepted them - regardless of if they had the option to refuse.

I have done this.

On CEST if you say you have used a sub and paid them yourself, then you can get a monkey to answer the other questions and still guarantee outside-IR35 decision at the end.

[Rafd]

If you have actually introduced a sub correctly, paid him through your company etc , then it means that the client has accepted them - regardless of if they had the option to refuse.

But they still have the right to refuse a future sub so I think the answer to the CEST would still be YES? Edit: sorry, misread the second part of your answer. So i take it if you answer YES to the 'right to refuse sub' question but have already used a sub, then the CEST tool will put you outside regardless?

[eek]

But they still have the right to refuse a future sub so I think the answer to the CEST would still be YES?

Completely irrelevant - the fact you've used a sub is all that matters - as, as I've already stated, actual facts trumps working practices which trumps paperwork..

[andydd68]

Any thoughts on this scenario ?

Ive never used a substitute BUT on an occasion I was off and the IT Services company I was employed by did provide a sub to the end client, so the end client was happy to accept them, they clearly needed and held the correct skills and clearances (eDBS).

[eek]

Any thoughts on this scenario ?

Ive never used a substitute BUT on an occasion I was off and the IT Services company I was employed by did provide a sub to the end client, so the end client was happy to accept them, they clearly needed and held the correct skills and clearances (eDBS).

Doesn't help you, you need to have paid for the sub yourself...

[andydd68]

Doesn't help you, you need to have paid for the sub yourself...

Fair point although CEST doesnt mention that, merely would a sub be accepted.

[ChimpMaster]

Fair point although CEST doesnt mention that, merely would a sub be accepted.

On CEST if you answer that you have used a Sub then then next question asks if your Co paid them.

[Freud]

Are CEST and HMRC Guidance contradictory ?

Maybe some one can advise on this:

1. HMRC Guidance
The HMRC guidance says:
"Where the hirer can only reject a substitute upon grounds that they are not qualified to perform the work, this would fall within the ‘No’ category for CEST"

2. The CEST tool
The wording for the Substitution question in CEST says:
"Does the Hirer have the right to reject a substitute?

This can include rejecting a substitute even if they are equally qualified, and meet the Hirer's interviewing, vetting and security clearance procedures."

Are the two not contradictory and if so, which takes precedence ?

Given the wording in the CEST tool, unless you have unfettered rights to provide a substitute, which in a professional environment is highly unlikely, how can you ever answer that 'No, the Hirer does not have teh right to reject' ?