Reply to: Substitution Clause

[jamesbrown]

I am note sure what is impolite, I was merely pointing answering the question "I don't really know what you want from us?" - I have no dispute with the views that JamesBrown presents I am merely pointing out that so called "experts" seem able to turn grey into black & white, in my case failing the whole contract based on RoS only. I have no dispute over the possible reasons for this. There really isn't much more to say on this now.

No worries, perhaps I was a tad dismissive

Anyway, the bottom line is that the reviewer, by definition, needs to map a continuum of grey into a binary pass/fail decision. For that reason, they often take a cautious approach on borderline contracts, but there will also be some variation between reviewers. Really, the best way to mitigate against this, especially when you have a borderline contract, is to pay a little extra for a review service that looks at the WP too because, absent detailed information, the reviewer is more likely to map a borderline contract to fail (at least, I would).

[MPwannadecentincome]

Interesting thread on it here which goes further than most RoS articles and does take in to account the skills and ability of the substitute.

Do any of the points made in this ring a bell with your situation and that could be why QDOS failed it?

Contractors should use right of substitution in contracts

OK I have read it and it was clear to me that the way the clause was written was sufficient to fail on RoS, I understand that part and the article supports what I understood, so that is why I am trying to figure out what the working practise is.

[MPwannadecentincome]

The first point is not a very polite answer. Like NLUK, JamesBrown is pointing out that's not the only clause in the contract that is important in terms of passing IR35. (BTW did you ask what qualifications your reviewer had?)

In terms of getting clauses in the upper contract the same, I've found that questioning another non-IR35 clause gets the agency to clarify or rewrite some clauses including the IR35 ones. Oddly the IR35 ones are never weakened, so the end-client must be aware that they don't want you as an employee.

I am note sure what is impolite, I was merely pointing answering the question "I don't really know what you want from us?" - I have no dispute with the views that JamesBrown presents I am merely pointing out that so called "experts" seem able to turn grey into black & white, in my case failing the whole contract based on RoS only. I have no dispute over the possible reasons for this. There really isn't much more to say on this now.

I hadn't thought of questioning the qualifications of the "expert" from QDOS, not sure where it will get me, quite simply I can ask for a second opinion or follow the advice I have given and get the client to sign the working practises questionnaire and potentially demonstrate the practise by executing a substitution and removing the fail that has been given.

Regarding this particular client and agency.... there were other clauses where I asked for minor changes, including having payment terms added. I was told the contract cannot be changed. I asked and they said it cannot be changed. I asked again and they said it cannot be changed. I don't see any value in asking again. I suspect that as the client has negotiated framework agreements across many lines of supply into IT the client is not going to pay any attention to these agreements again until they expire, in the meantime the agency seem able to hold their line and it could be that the upper agreement limits them in what they can change. With other contracts (direct and agency) I have had no issue getting clauses re-negotiated based upon QDOS recommendations.

As I said, it was take it or leave it...

[SueEllen]

I didn't want anything from you.... I had no other grey areas, so the statement made earlier in this thread (and other threads as well) that RoS was just one factor and not necessarily the most important went against my experience of the QDOS reviewer who reviewed my contract and gave it a blanket FAIL just on the RoS clause.

ooh thanks I will have to read that :-) and its a link to another site ;-)

It is all tosh if the agency refuses to change it, then its a case of take it or leave it. Not knowing how the upper framework agreement is written it is impossible to take forward with the agent. I chose to take it rather than sit on the bench until February (as what happened to me 2 years ago when I was on the bench from late summer).

The first point is not a very polite answer. Like NLUK, JamesBrown is pointing out that's not the only clause in the contract that is important in terms of passing IR35. (BTW did you ask what qualifications your reviewer had?)

In terms of getting clauses in the upper contract the same, I've found that questioning another non-IR35 clause gets the agency to clarify or rewrite some clauses including the IR35 ones. Oddly the IR35 ones are never weakened, so the end-client must be aware that they don't want you as an employee.

[MPwannadecentincome]

You do know you will need to train your sub up at your expense unless you can find someone who worked/contracted there before quite recently?

Yes :-)

Remember offering a substitute is not just getting some random bod to turn up the day after you have gone. It's someone that can continue the work you were doing seamlessly which will probably incur some handover time where the client won't pay both of you. Am sure it's not always been the case for people that have managed to offer a sub but I am sure that lack of handover and continuity is the reason most clients refuse a substitute. Why would they just take some random body on they can't control fully. They might as well just go back to the agent and follow process and get their own guy.

Yes I can plan a handover no problem, I know I will lose money after the handover time etc but actually I am considering continuity of service as an important element of what I deliver.

Look at it this way. Based on the information provided, the probability of being inside is somewhere in [0,1]. At what probability does the QDOS reviewer classify the outcome as FAIL?

Obviously, you don't want a reviewer coming to conclusions that are inconsistent with what the vast majority of competent reviewers might conclude, but there's always going to be some difference in opinion. It appears that you've either been given a bad review (as in, found an obsessively sensitive reviewer) or that the information you've reported here is misleading, i.e. that several other factors were borderline too. That being said, I don't really know what you want from us? If it's just an FYI, fine -thanks If you're unhappy with the review, send it elsewhere. Personally, I'm not a massive fan of the QDOS reviews, except as a cheap/formal confirmation of due diligence for the simplest/shortest contracts that I already know to be way outside. This is nothing more than personal opinion though. YMMV.

I didn't want anything from you.... I had no other grey areas, so the statement made earlier in this thread (and other threads as well) that RoS was just one factor and not necessarily the most important went against my experience of the QDOS reviewer who reviewed my contract and gave it a blanket FAIL just on the RoS clause.

Interesting thread on it here which goes further than most RoS articles and does take in to account the skills and ability of the substitute.

Do any of the points made in this ring a bell with your situation and that could be why QDOS failed it?

Contractors should use right of substitution in contracts

ooh thanks I will have to read that :-) and its a link to another site ;-)

Standard Substitution Clause
1) The consultancy’s obligation to provide the consultancy services shall be performed by such member or members of the consultancy’s employees, officers or representatives (“representative(s)”) as the consultancy may consider appropriate, subject to the mutual agreement of the parties. The Consultancy shall be entitled to assign, or sub-contract the performance of the Consultancy Services provided that the Consultancy is satisfied that the assignee, or sub-contractor has the required skills, qualifications, resources and personnel to provide the Consultancy Services to the required standard and that the terms of any such assignment or sub-contract contain the same obligations imposed by this Agreement.

Alternative Version
2) The consultancy’s obligation to provide the consultancy services shall be performed by such member or members of the consultancy’s employees, officers or representatives (“representative(s)”) as the consultancy may consider appropriate, as initially agreed between the parties. The Consultancy shall be entitled to assign, substitute or sub-contract the performance of the Consultancy Services provided that the Consultancy is satisfied that the assignee, substitute or sub-contractor has the required skills, qualifications, resources and personnel to provide the Consultancy Services to the required standard and that the terms of any such assignment or sub-contract contain the same obligations imposed by this Agreement. Prior written consent from the client will be required before substitution can take place and consent will not be unreasonably withheld.

Stonger Version
3) The Consultancy has the right to supply a substitute of equivalent knowledge and expertise and acknowledges that the End Client has the right to refuse the replacement if, in the reasonable view of the End Client, the replacement is not sufficiently qualified to undertake the work. Where substitution occurs, the Consultancy will remain responsible for its obligations under the agreement and be responsible for the payment of the replacement and there will be no further payments outside of the agreed terms to pay for any handover period between the original consultant and the replacement.


As comments above, working practices carry more weight. However IMHO, if your key clauses are weak, HMRC will not try to confirm if your working practices are strong and they will not hesitate in stating that you are caught by IR35 legislation. Where possible, key clauses should be as strong as possible, this forces HMRC to consider working practices.

It is all tosh if the agency refuses to change it, then its a case of take it or leave it. Not knowing how the upper framework agreement is written it is impossible to take forward with the agent. I chose to take it rather than sit on the bench until February (as what happened to me 2 years ago when I was on the bench from late summer).

[MrMarkyMark]

When I placed a sub on site we did a 3 day handover for which the client only paid for one of us.

The client didn't interview / meet the sub beforehand, though ultimately, if they didn't like them they could have said no.

Regardless of what a contract says, if the sub doesn't meet the client's expectations in a whole host of ways, they won't stay for long. And I have seen that happen to big consultancies too, not just freelancers.

Managed to do a little cross over move recently.
Got a guy funded by another project, then handing over tasks for next year.

So, essentially, we both get paid

[eazy]

Clause Wording

Standard Substitution Clause
1) The consultancy’s obligation to provide the consultancy services shall be performed by such member or members of the consultancy’s employees, officers or representatives (“representative(s)”) as the consultancy may consider appropriate, subject to the mutual agreement of the parties. The Consultancy shall be entitled to assign, or sub-contract the performance of the Consultancy Services provided that the Consultancy is satisfied that the assignee, or sub-contractor has the required skills, qualifications, resources and personnel to provide the Consultancy Services to the required standard and that the terms of any such assignment or sub-contract contain the same obligations imposed by this Agreement.

Alternative Version
2) The consultancy’s obligation to provide the consultancy services shall be performed by such member or members of the consultancy’s employees, officers or representatives (“representative(s)”) as the consultancy may consider appropriate, as initially agreed between the parties. The Consultancy shall be entitled to assign, substitute or sub-contract the performance of the Consultancy Services provided that the Consultancy is satisfied that the assignee, substitute or sub-contractor has the required skills, qualifications, resources and personnel to provide the Consultancy Services to the required standard and that the terms of any such assignment or sub-contract contain the same obligations imposed by this Agreement. Prior written consent from the client will be required before substitution can take place and consent will not be unreasonably withheld.

Stonger Version
3) The Consultancy has the right to supply a substitute of equivalent knowledge and expertise and acknowledges that the End Client has the right to refuse the replacement if, in the reasonable view of the End Client, the replacement is not sufficiently qualified to undertake the work. Where substitution occurs, the Consultancy will remain responsible for its obligations under the agreement and be responsible for the payment of the replacement and there will be no further payments outside of the agreed terms to pay for any handover period between the original consultant and the replacement.


As comments above, working practices carry more weight. However IMHO, if your key clauses are weak, HMRC will not try to confirm if your working practices are strong and they will not hesitate in stating that you are caught by IR35 legislation. Where possible, key clauses should be as strong as possible, this forces HMRC to consider working practices.

[GB9]

Remember offering a substitute is not just getting some random bod to turn up the day after you have gone. It's someone that can continue the work you were doing seamlessly which will probably incur some handover time where the client won't pay both of you. Am sure it's not always been the case for people that have managed to offer a sub but I am sure that lack of handover and continuity is the reason most clients refuse a substitute. Why would they just take some random body on they can't control fully. They might as well just go back to the agent and follow process and get their own guy.

When I placed a sub on site we did a 3 day handover for which the client only paid for one of us.

The client didn't interview / meet the sub beforehand, though ultimately, if they didn't like them they could have said no.

Regardless of what a contract says, if the sub doesn't meet the client's expectations in a whole host of ways, they won't stay for long. And I have seen that happen to big consultancies too, not just freelancers.

[northernladuk]

Interesting thread on it here which goes further than most RoS articles and does take in to account the skills and ability of the substitute.

Do any of the points made in this ring a bell with your situation and that could be why QDOS failed it?

Contractors should use right of substitution in contracts

[jamesbrown]

Look at it this way. Based on the information provided, the probability of being inside is somewhere in [0,1]. At what probability does the QDOS reviewer classify the outcome as FAIL?

Obviously, you don't want a reviewer coming to conclusions that are inconsistent with what the vast majority of competent reviewers might conclude, but there's always going to be some difference in opinion. It appears that you've either been given a bad review (as in, found an obsessively sensitive reviewer) or that the information you've reported here is misleading, i.e. that several other factors were borderline too. That being said, I don't really know what you want from us? If it's just an FYI, fine -thanks If you're unhappy with the review, send it elsewhere. Personally, I'm not a massive fan of the QDOS reviews, except as a cheap/formal confirmation of due diligence for the simplest/shortest contracts that I already know to be way outside. This is nothing more than personal opinion though. YMMV.

[northernladuk]

I am doing the working practises now, no issues with MOO or SDC - have to ask the client if they would accept a substitute if the situation arises - which I think it will actually as there are a couple of critical days whilst I am on holiday - there isn't much else I can do on RoS other than go through the process of getting a substitute.

Remember offering a substitute is not just getting some random bod to turn up the day after you have gone. It's someone that can continue the work you were doing seamlessly which will probably incur some handover time where the client won't pay both of you. Am sure it's not always been the case for people that have managed to offer a sub but I am sure that lack of handover and continuity is the reason most clients refuse a substitute. Why would they just take some random body on they can't control fully. They might as well just go back to the agent and follow process and get their own guy.

[SueEllen]

You do know you will need to train your sub up at your expense unless you can find someone who worked/contracted there before quite recently?

[MPwannadecentincome]

It's just a calibrated opinion, based on limited information. Remember, you only need to demonstrate one of RoS, lack of MoO and lack of D&C convincingly (although failing on D&C is bad). Not all individual reviewers and companies are calibrated the same, and not all reviews are based on the same level of information. A fettered RoS isn't ideal, of course. You've probably opted for the quick/cheap QDOS review. You might have a different answer from another reviewer, and even a consistent one across reviewers on the basis of a detailed review that includes the working practices.

I am doing the working practises now, no issues with MOO or SDC - have to ask the client if they would accept a substitute if the situation arises - which I think it will actually as there are a couple of critical days whilst I am on holiday - there isn't much else I can do on RoS other than go through the process of getting a substitute.

Case law doesn't support that view and if anything, SD&C is likely to prove more crucial going forward.

So maybe if I asked for QDOS TLC35 cover I can see if they would refuse my cover? Well all depends on my working practices I suppose....

[SueEllen]

That is not the QDOS view, I had a complete fail only due to RoS not being strong enough.

I read your other post.

If every worker on-site has to have some form of background check then the RoS cannot be unfettered. As if the worker fails that background check then they won't be allowed on-site.

Another reason to not to allow an unfettered right of substitution is if the worker you choose is an ex-worker removed for gross misconduct, which you don't know about, they aren't going to let them on-site.

The problem with quick reviews is the reviewer may not bother to look at early clauses which state that everyone needs a certain type of background check.

[TheCyclingProgrammer]

That is not the QDOS view, I had a complete fail only due to RoS not being strong enough.

Case law doesn't support that view and if anything, SD&C is likely to prove more crucial going forward.