Right of substitution

[TheFaQQer]

No penalties in the lost cases so far if the info on here and other sites is to be believed. I agree on the PCG insurance bit, I've got that. The rest depends on your attitude to risk ( long odds ! ), if you like shelling out for contract reviews and if you want to risk losing out on work by haggling over contract details. Each to his own !

I think that if you can prove that you took steps to endeavour to be outside IR35, but argue and lose, then you don't pay penalties.

If you can't prove that you checked it out etc. etc. and just decided to risk it, then it looks more like evasion, and they can charge penalties.

Where's Mal when you need him?

[Jog On]

Only if the contract is with you personally, and not with your company. If the contract is with your company, you could still substitute another member of your company's staff without falling foul of this clause.

That's how I understand it as well. Subcontracting to a 3rd party and being in a position to provide the services of your Ltd by sending in another employee other than yourself are not the same thing.

My contract has a "thou shalt not subcontract to a 3rd party" clause which the agent was very insistent on keeping however throughout the rest of the contract there are references to 'any employee/represeentative' of [the contractor's Ltd company].

It doesn't have an actual clause that says "if for whatever reason you cannot provide the services to the end client you may send in a replacement" although the rest is worded as though that is implied.

I don't know if that's ideal - I have the MOO and control clauses in there and it's my 3rd 3 month gig in a row so I'm sleeping at night.

[rootsnall]

Plus the interest and penalties they also charge.

I would get the contract reviewed, get it changed to outside IR35, and either take out insurance through Qdos or join the PCG.

No penalties in the lost cases so far if the info on here and other sites is to be believed. I agree on the PCG insurance bit, I've got that. The rest depends on your attitude to risk ( long odds ! ), if you like shelling out for contract reviews and if you want to risk losing out on work by haggling over contract details. Each to his own !

[TheFaQQer]

you just cough up the extra tax/NI if it came to it, they won't lock you up !

Plus the interest and penalties they also charge.

I would get the contract reviewed, get it changed to outside IR35, and either take out insurance through Qdos or join the PCG.

[rootsnall]

I had to let my accountant know fairly quickly so I have advised that it is inside IR35 as so many of the questions that are asked in a contract review lead me to believe that it is inside.

I think it's good to make an attempt to get your contract more IR35 friendly but I personally wouldn't ever deem myself inside. For a 3 month contract your chances of getting investigated are minimal, even then the chances of you getting done are even more minimal, and even then you just cough up the extra tax/NI if it came to it, they won't lock you up !

[Qdos Contractor]

Thanks,

I had to let my accountant know fairly quickly so I have advised that it is inside IR35 as so many of the questions that are asked in a contract review lead me to believe that it is inside.

It's only a 3 month contract and is also my first contract.

I suppose once I get stuck into this contracting thing, I'll know what I'm up to - I've just had so many things to sort out this week that it's almost easier just to say - yeah, it's inside.

From my next contract on I shall definitely use you for contract review though.

Remember that having a less than perfect written contract doesn't necessarily mean you are automatically inside IR35.

If your actual working practices are compliant it may be enough to successfully defend you. We offer full IR35 insurance (covering all tax, interest and penalties if you are 'caught') on the basis of a working practice assessment alone.

[monkeyBoy32]

To be honest, that's more like a right to assign, which is slightly different. You may well have a separate clause somewhere that states you can (or can't) use whichever representatives you deem appropriate, or that you can replace your original representative.

The important factor is that the clause is unfettered, i.e. the client should only be able to reject a replacement on grounds related to qualifications, experience etc.

PM me if you want to discuss in more detail (no obligations of course).

Thanks,

I had to let my accountant know fairly quickly so I have advised that it is inside IR35 as so many of the questions that are asked in a contract review lead me to believe that it is inside.

It's only a 3 month contract and is also my first contract.

I suppose once I get stuck into this contracting thing, I'll know what I'm up to - I've just had so many things to sort out this week that it's almost easier just to say - yeah, it's inside.

From my next contract on I shall definitely use you for contract review though.

[thunderlizard]

OK - So, in my contract where it says "Not to sub-contract to any third party any of the services which it is required to perform under any assignment"

That means I dont have the right of substitution?

Only if the contract is with you personally, and not with your company. If the contract is with your company, you could still substitute another member of your company's staff without falling foul of this clause.

[Qdos Contractor]

OK - So, in my contract where it says "Not to sub-contract to any third party any of the services which it is required to perform under any assignment"

That means I dont have the right of substitution?

To be honest, that's more like a right to assign, which is slightly different. You may well have a separate clause somewhere that states you can (or can't) use whichever representatives you deem appropriate, or that you can replace your original representative.

The important factor is that the clause is unfettered, i.e. the client should only be able to reject a replacement on grounds related to qualifications, experience etc.

PM me if you want to discuss in more detail (no obligations of course).

[Sockpuppet]

Depends if you think you can get the client to change the contract!

[monkeyBoy32]

So is it even worth paying the $$ to qdos to have my contract reviewed?

[Sockpuppet]

You got it kiddo. Unless there is another line that says "unless by agreement of client etc".

[monkeyBoy32]

OK - So, in my contract where it says "Not to sub-contract to any third party any of the services which it is required to perform under any assignment"

That means I dont have the right of substitution?

[MrRobin]

No it means you have the right to substitute yourself with someone else.

[monkeyBoy32]

OK - I know I'm going to get stick for asking this and will probably be pointed in the direction of other threads but I can't find a decent answer to this:

What is the Right of substitution?

A simple answer will do.

Does it mean that my client has the right to substitute me with someone else?

Seriously, I can't find a decent answer anywhere..