Reply to: Finding a substitute

[northernladuk]

EXACTLY. When we start believing odd comments from agents then we're really in trouble.

Look at exactly what we've got here. Young lad, fresh out of carphone warehouse, now a recruitment consultant, thinks hes Bertie Big bollox. Been to a few meetings with client and now hes important.

Got these contractors and hes the man. Hes got some power over them because he gets them gigs. They need to listen to him.

But hes clueless really, has no idea about contracting and hasnt even read the contracts. Why should he hes hitting those sales targets.

So contractor mentions sub clause and he hasnt got a clue. If he admits hes got no idea:-

1. He no longer looks like the man who runs the show.
2. Why waste another chance to underline the fact that hes got the power and your just a contractor.

So he makes it up. Says nah I know the client won't go for that. Make sense?

Hes hardly going to say I dont know I'll find out is he?

Your apostrophe key not working?

[psychocandy]

While I agree with NLUK in that if the agent thinks they wouldn't go for it then they very likely wouldn't, the fact that he wasn't even aware that the clause was in there would, in my opinion, mean that any judgement would have to disregard the agent's remarks as not particularly credible.

EXACTLY. When we start believing odd comments from agents then we're really in trouble.

Look at exactly what we've got here. Young lad, fresh out of carphone warehouse, now a recruitment consultant, thinks hes Bertie Big bollox. Been to a few meetings with client and now hes important.

Got these contractors and hes the man. Hes got some power over them because he gets them gigs. They need to listen to him.

But hes clueless really, has no idea about contracting and hasnt even read the contracts. Why should he hes hitting those sales targets.

So contractor mentions sub clause and he hasnt got a clue. If he admits hes got no idea:-

1. He no longer looks like the man who runs the show.
2. Why waste another chance to underline the fact that hes got the power and your just a contractor.

So he makes it up. Says nah I know the client won't go for that. Make sense?

Hes hardly going to say I dont know I'll find out is he?

[SpontaneousOrder]

While I agree with NLUK in that if the agent thinks they wouldn't go for it then they very likely wouldn't, the fact that he wasn't even aware that the clause was in there would, in my opinion, mean that any judgement would have to disregard the agent's remarks as not particularly credible.

[MyUserName]

Why are people still banging on about the contract? He made it clear the client wouldn't accept it as part of working practice. I have said a number of times this will trump the contract.

Couldn't it be argued here that this was nothing more than the agent's opinion. The client has not formally declared that no subs will be allowed.

[tractor]

...

Why are people still banging on about the contract? He made it clear the client wouldn't accept it as part of working practice. I have said a number of times this will trump the contract.

That might hold true if you substituted the client for the agent in your hypothetical conversation and that indeed, was the client's position.

[northernladuk]

Because the agent hasn't even read the contract so even though it may be, it is not yet.

Makes a change for us to say 'are you sure you are cut out to be an agent

Why are people still banging on about the contract? He made it clear the client wouldn't accept it as part of working practice. I have said a number of times this will trump the contract.

[jamesbrown]

None of which is concrete and can and will be argued. I would not be looking forward to an hearing with a sham clause with only the strength of other evidence backing me up.

Not sure what you're getting at w/r to "none of which is concrete". An unfettered RoS will be scrutinized along with all other clauses (and not with predetermined weight) and this is why it's of paramount importance to collect the evidence during a contract to demonstrate status in the round. I wouldn't be looking forward to a hearing under any circumstances, but ticked boxes does not a strong case produce.

[tractor]

The agent says client won't go for it. How isn't it a sham then?



That's even worse. A good assumption here would be the client won't go for it either. Bearing in mind working practices trump the contract I don't know why you are bothered with what's in the contract. You know the score.

HMRC to agent : Will the client allow RoS
Agent to HMRC : No, I told the contractor this gave my opinion even though I hadn't read the contract before I signed it before he started.
HMRC to agent : Thank you very much!!

QDOS to contractor : Thanks but no thanks, goodbye.

Anyway, it's up to you.

Because the agent hasn't even read the contract so even though it may be, it is not yet.

Makes a change for us to say 'are you sure you are cut out to be an agent

[northernladuk]

This idea of 66% and point scoring more generally has been specifically rejected by the courts. It's the overall picture that matters and the absence of one clause places more focus on the strength of the other evidence.

None of which is concrete and can and will be argued. I would not be looking forward to an hearing with a sham clause with only the strength of other evidence backing me up.

[jamesbrown]

Well most good guides on IR35 name RoS as one of the main three flags. I certainly would not want to go in to an investigation knowing I was only 66% covered and even that is then subject to enhanced scrutiny due to one of them being dismissed from the outset.

I certainly don't agree it's one of three at all. QDOS fail a contract on any of these, not on the basis one works and the rest is missing for a start.

This idea of 66% and point scoring more generally has been specifically rejected by the courts. It's the overall picture that matters and the absence of one clause places more focus on the strength of the other evidence. IIRC, the precedence was set by Ready Mix Concrete where all three conditions were required to indicate a contract of service. See also, McManus vs Griffiths 1997, where personal service was required. The difficulty (for us) is that the weighting of the factors varies along with the case law and there are no guarantees of anything until a case is heard. Whether QDOS decide to do one thing or another is probably more a reflection of their level of risk tolerance or the depth of review (e.g. of the contract terms alone vs. working practices) than anything else.

[northernladuk]

Has anyone on this forum been investigated with regards to IR35?

Yep, at least one but I don't think it got very far.

[Brian Potter]

Has anyone on this forum been investigated with regards to IR35?

[northernladuk]

I don't entirely agree with this, except the importance of not having sham clauses. It isn't necessary to demonstrate all three. It's one of three and, in my opinion, not the most important one (it's the unfettered right that matters, but, unless you've demonstrated the right, it will always be suspect). I'd be far more concerned about evidence of D&C or, to put it differently, I'd be much more confident in a situation where there was a clear lack of D&C, backed up by evidence. Employees are always under D&C. A strong contract and working practices should evidence, in all possible ways, the lack of D&C (what, where, when, how).

Well most good guides on IR35 name RoS as one of the main three flags. I certainly would not want to go in to an investigation knowing I was only 66% covered and even that is then subject to enhanced scrutiny due to one of them being dismissed from the outset.

I certainly don't agree it's one of three at all. QDOS fail a contract on any of these, not on the basis one works and the rest is missing for a start.

[jamesbrown]

It's one of the major three you have to have to be outside. Without it you are on a wish and a prayer at the very best.

I would also think if your IR35 insurance provider found out you knew it was a sham they would withdraw cover as well.

I don't entirely agree with this, except the importance of not having sham clauses. It isn't necessary to demonstrate all three. It's one of three and, in my opinion, not the most important one (it's the unfettered right that matters, but, unless you've demonstrated the right, it will always be suspect). I'd be far more concerned about evidence of D&C or, to put it differently, I'd be much more confident in a situation where there was a clear lack of D&C, backed up by evidence. Employees are always under D&C. A strong contract and working practices should evidence, in all possible ways, the lack of D&C (what, where, when, how).

[northernladuk]

Nope. I disagree. I dont know its a sham.

The agent says client won't go for it. How isn't it a sham then?

The fact that this particular agent did not even know that the substitution clause existed in their contract and did not even know what it was, confidently leads me to believe that they've never had this specific conversation with the client.

That's even worse. A good assumption here would be the client won't go for it either. Bearing in mind working practices trump the contract I don't know why you are bothered with what's in the contract. You know the score.

HMRC to agent : Will the client allow RoS
Agent to HMRC : No, I told the contractor this before he started.
HMRC to agent : Thank you very much!!

QDOS to contractor : Thanks but no thanks, goodbye.

Anyway, it's up to you.