We've seen plenty of evidence that existing 'standard' unfettered substitution clauses cause more confusion than actually help. Contractors don't understand what is involved i.e. training up the sub at their own cost to hit the ground running first day and to accept full responsibility for that sub. Clients don't understand sub's as they think they the contractor has the right to send in an untrained body for a few days so will generally not accept a sub despite it being in the contract. No one really wins and it isn't really helping in court.

What about extra clauses in the contract to clarify when a sub is acceptable? You have your standard one liner but added to that is a clause stating the contractor must bring the sub up to speed at their own cost and another stating subs for periods less than, say, 3 weeks are not accepted?

Would I be right in thinking this would help in a number of ways..
  • It is still unfettered. The client still can't refuse the person offered
  • The client is much more likely to accept the clause and also stand up in court and say yes they would accept it under the right conditions, all business related.
  • The fact that there are limitations would not affect the situation as there are solid business reasons that are frankly common sense.
  • It's a much clearer and solid clause all round rather than lip service in a contract which courts have already stated.


I'm thinking longer term here as part of mitigating the risks clients are looking at when deciding to put their contractors in or out. If it's poorly understood and documented it the client may see this as a bad thing and remove it so pushing towards IR35. If it's clearly understood and fits business needs they are more likely to keep it in?

Thoughts?