CEST Substitution question wording

[Rafd]

Can anyone clarify the wording in the following question for me please? For some reason I'm finding it hard to understand the meaning of the final sentence. How would a contract clause need to be worded in order to answer NO to this one?

Thanks

Does your client have the right to reject a substitute?

A substitute is someone you send in your place to do your role.

This can include rejecting a substitute even if they are equally qualified, and meet your client’s interviewing, vetting and security clearance procedures.

[Qdos Contractor]

Can anyone clarify the wording in the following question for me please? For some reason I'm finding it hard to understand the meaning of the final sentence. How would a contract clause need to be worded in order to answer NO to this one?

Thanks

Does your client have the right to reject a substitute?

A substitute is someone you send in your place to do your role.

This can include rejecting a substitute even if they are equally qualified, and meet your client’s interviewing, vetting and security clearance procedures.

Important to read the associated guidance in the ESM for this one:

ESM11045 - Employment Status Manual - HMRC internal manual - GOV.UK

"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 provided it would be practical and plausible for the worker to send a substitute."

[Rafd]

Thanks for that - the question wording is as clear as mud!

[Rafd]

As a follow up would you say that the following clause is compliant or would it need to be modified? The 'prior written approval' implies the indiscriminate right to reject perhaps?

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

[Pring]

Important to read the associated guidance in the ESM for this one:

ESM11045 - Employment Status Manual - HMRC internal manual - GOV.UK

"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 provided it would be practical and plausible for the worker to send a substitute."

The QDOS standard contract for direct to client has the substitution clause as:

The Consultancy has the right, at its own expense, to enlist additional or substitute workers in the performance of the Consultancy Services or may, sub-contract all or part of the Consultancy Services, provided that the Consultancy provides details, whenever requested to do so, of the substitute or sub- contractor ahead of the planned substitution and subject to the Client being reasonably satisfied that such additional Workers or any such sub-contractor has the required skills, qualifications, resources and personnel to provide the Consultancy Services to the required standard.

Is this sufficient for a "No" answer? I've never been entirely sure say entered Yes in the CEST for Substitution.

[ladymuck]

Fancy words notwithstanding, what would the client say if you wanted to sub someone in? That's what would be tested if push came to shove.

Once you know what they think then you can craft some legalese or rob something off a template that matches what the working practice is expected to be.

[eek]

Fancy words notwithstanding, what would the client say if you wanted to sub someone in? That's what would be tested if push came to shove.

Once you know what they think then you can craft some legalese or rob something off a template that matches what the working practice is expected to be.

The two clauses differ in more than just fancy words, one insists the client approves the substitution, QDOS says you notify the client and they can only object on skill grounds.

[ladymuck]

The two clauses differ in more than just fancy words, one insists the client approves the substitution, QDOS says you notify the client and they can only object on skill grounds.

That wasn't the point I was making.

The words are only as good as the actual environment you're working in. Once you know the environment, you can then make sure the words match.

[northernladuk]

Problem is even if your average contractor that doesn't understand unfettered sub is in the environment they still won't have a clue so asking them to do their own CEST is pointless.

[Rafd]

That wasn't the point I was making.

The words are only as good as the actual environment you're working in. Once you know the environment, you can then make sure the words match.

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.