ROS questions changed in ESS Tool

[malvolio]

I agree that the client will be making the inside/outside determination and may use the tool for that purpose. But I am also using the tool as a "worker" to determine the inside/outside status.

My contract states that I may provide a substitute with the prior written permission of the client (which in my case would be the consultancy between me and the end PS client.

But as the prior answer to a ROS q was "no it hasn't happened yet" I don't know if that written permission would be given or whether the consultancy would defer to PS.

As a "worker" I "could" confirm that I have a ROS and be responsible for paying that substitute. But I'm not asked that.

I'm asked what would the client do if offered a substitute that I'm contractually allowed to provide. The possible answers should be at least yes / no / don't know.

The phrase "reasonably unfettered" is the key. If you can offer a subbie and the client is content they can do the job as well as you can under your direction then fine. Every other variation is up to negotiation. So a simple binary answer on the ESS tool isn't really viable.

f your relying on the tool to make the decision, it is only really binding on the client, although obviously you can use it to cross check their decision and (possibly) challenge them if you disagree.

But the IR35 appeal on either HMRC's or your side, if brought, will be on the existing case law, your working practices and the contract. As always, you can't really focus on one element.

Yes you should work with the client if you can to get a mutually agreeable solution. Sadly, a lot of people won't have that option.

[mnctraining]

You can't easily, but it's the client that will be answering the question...

I agree that the client will be making the inside/outside determination and may use the tool for that purpose. But I am also using the tool as a "worker" to determine the inside/outside status.

My contract states that I may provide a substitute with the prior written permission of the client (which in my case would be the consultancy between me and the end PS client.

But as the prior answer to a ROS q was "no it hasn't happened yet" I don't know if that written permission would be given or whether the consultancy would defer to PS.

As a "worker" I "could" confirm that I have a ROS and be responsible for paying that substitute. But I'm not asked that.

I'm asked what would the client do if offered a substitute that I'm contractually allowed to provide. The possible answers should be at least yes / no / don't know.

[teapot418]

Dose anyone have a link to the latest version of the ESS tool please?

https://www.gov.uk/guidance/check-em...status-for-tax

[Kingman66]

Dose anyone have a link to the latest version of the ESS tool please?

[RonBW]

This morning I note that the initial ROS question has changed to-

"Would the end client accept the worker's business sending someone else to do this work instead?"

The question may have changed between the beta version(s) and the live, but the summary that I generated about half an hour after the tool went live on Thursday has the same question as it does today.

[teapot418]

No. The client makes the determination.

Agreed, but as Andy Hallett said, in many cases the agency will lead the process - they will run the tool and present the result for the client and contractor to agree. As it currently stands, the agent carries the financial risk if the wrong determination is made.

[malvolio]

I didn't think it was the client answering the Q anymore, I thought it was the agency or whoever is paying the 'worker'?

No. The client makes the determination.

[hollyblue]

You can't easily, but it's the client that will be answering the question...

I didn't think it was the client answering the Q anymore, I thought it was the agency or whoever is paying the 'worker'?

[teapot418]

The bigger issue is if they really are changing questions on the fly without telling people.

Thats going to cause major headaches down the line if people get a result inside or outside on one set of questions and a different result on another set. The entire concept of consistency goes out of the window.

If people can get screen shots of different version of the questions that would give another tool to beat HMRC with over this.

There is the option to print your results, so could do easily enough to pdf

Edit: That doesn't include the guidance - and I think that's changed. I know someone posted it earlier - off to have a looky.

Edit: Nope.

[DaveB]

The bigger issue is if they really are changing questions on the fly without telling people.

Thats going to cause major headaches down the line if people get a result inside or outside on one set of questions and a different result on another set. The entire concept of consistency goes out of the window.

If people can get screen shots of different version of the questions that would give another tool to beat HMRC with over this.

[malvolio]

I've had a play with the ESS Tool over the past couple of days. I'm filling the tool from the point of view of the worker (not that I like that term) on the basis that the contract hasn't started yet (current outside contract terminated due to blanket inside approach going forward)

But I'm using my existing contract terms and WP's to fill in tool (always comes up outside)

This morning I note that the initial ROS question has changed to-

"Would the end client accept the worker's business sending someone else to do this work instead?"

I can't answer this yes or no. There is a right of substitution in the contract, it's never been tested (contract not started), but how can "I" answer a question related to what the client may or may not do.

You can't easily, but it's the client that will be answering the question...

[mnctraining]

I've had a play with the ESS Tool over the past couple of days. I'm filling the tool from the point of view of the worker (not that I like that term) on the basis that the contract hasn't started yet (current outside contract terminated due to blanket inside approach going forward)

But I'm using my existing contract terms and WP's to fill in tool (always comes up outside)

This morning I note that the initial ROS question has changed to-

"Would the end client accept the worker's business sending someone else to do this work instead?"

I can't answer this yes or no. There is a right of substitution in the contract, it's never been tested (contract not started), but how can "I" answer a question related to what the client may or may not do.