Reply to: CEST Substitution question wording

[eek]

You used the wrong adverb, I've fixed it for you. The guidance shows they know what the legal situation is. The CEST wording will intentionally leads the unwary (and many clients will be unwary) to enter the wrong thing.

FTFY to be completely accurate

[WordIsBond]

This was the question I was asking in the original post - to me the wording of the CEST is intentionally unclear.

You used the wrong adverb, I've fixed it for you. The guidance shows they know what the legal situation is. The CEST wording will lead the unwary (and many clients will be unwary) to enter the wrong thing.

[Rafd]

Maybe some one can advise on this:

1. HMRC Guidance
The HMRC guidance says:
"Where the hirer can only reject a substitute upon grounds that they are not qualified to perform the work, this would fall within the ‘No’ category for CEST"

2. The CEST tool
The wording for the Substitution question in CEST says:
"Does the Hirer have the right to reject a substitute?

This can include rejecting a substitute even if they are equally qualified, and meet the Hirer's interviewing, vetting and security clearance procedures."

Are the two not contradictory and if so, which takes precedence ?

Given the wording in the CEST tool, unless you have unfettered rights to provide a substitute, which in a professional environment is highly unlikely, how can you ever answer that 'No, the Hirer does not have teh right to reject' ?

This was the question I was asking in the original post - to me the wording of the CEST is absurdly unclear.

[eek]

I am not sure that my question has been answered.

What is the correct answer when using the CEST tool ?

"Does the Hirer have the right to reject a substitute?"

HMRC guidance suggests the answer is No but the additional info on the Cest tool would suggest Yes ?

We don't know enough about your situation to answer but look at how QDOS answer the question in a post further up and that will tell you all you need to know.

[Freud]

I am not sure that my question has been answered.

What is the correct answer when using the CEST tool ?

"Does the Hirer have the right to reject a substitute?"

HMRC guidance suggests the answer is No but the additional info on the Cest tool would suggest Yes ?

[northernladuk]

I think it's perfectly reasonable to assume that a client would accept a suitably qualified replacement if you told them you were leaving and there was still work to do. Have HMRC successfully argued the opposite to be true in tribunals ?

You can pass the CEST test even when saying the client can reject a suitably qualified replacement.

Yes. They've even given it little weight in some cases and even called it a sham in one case.

[rootsnall]

The words are only as good as the actual environment you're working in. Once you know the environment, you can then make sure the words match.

I think it's perfectly reasonable to assume that a client would accept a suitably qualified replacement if you told them you were leaving and there was still work to do. Have HMRC successfully argued the opposite to be true in tribunals ?

You can pass the CEST test even when saying the client can reject a suitably qualified replacement.

[DaveB]

Maybe some one can advise on this:

1. HMRC Guidance
The HMRC guidance says:
"Where the hirer can only reject a substitute upon grounds that they are not qualified to perform the work, this would fall within the ‘No’ category for CEST"

2. The CEST tool
The wording for the Substitution question in CEST says:
"Does the Hirer have the right to reject a substitute?

This can include rejecting a substitute even if they are equally qualified, and meet the Hirer's interviewing, vetting and security clearance procedures."

Are the two not contradictory and if so, which takes precedence ?

Given the wording in the CEST tool, unless you have unfettered rights to provide a substitute, which in a professional environment is highly unlikely, how can you ever answer that 'No, the Hirer does not have teh right to reject' ?

Further complicated by the fact that case law has established that the right of a client to insist on suitable qualifications and experience on the part of the sub does not invalidate the contractual right of substitution.

[Freud]

Are CEST and HMRC Guidance contradictory ?

Maybe some one can advise on this:

1. HMRC Guidance
The HMRC guidance says:
"Where the hirer can only reject a substitute upon grounds that they are not qualified to perform the work, this would fall within the ‘No’ category for CEST"

2. The CEST tool
The wording for the Substitution question in CEST says:
"Does the Hirer have the right to reject a substitute?

This can include rejecting a substitute even if they are equally qualified, and meet the Hirer's interviewing, vetting and security clearance procedures."

Are the two not contradictory and if so, which takes precedence ?

Given the wording in the CEST tool, unless you have unfettered rights to provide a substitute, which in a professional environment is highly unlikely, how can you ever answer that 'No, the Hirer does not have teh right to reject' ?

[ChimpMaster]

Fair point although CEST doesnt mention that, merely would a sub be accepted.

On CEST if you answer that you have used a Sub then then next question asks if your Co paid them.

[andydd68]

Doesn't help you, you need to have paid for the sub yourself...

Fair point although CEST doesnt mention that, merely would a sub be accepted.

[eek]

Any thoughts on this scenario ?

Ive never used a substitute BUT on an occasion I was off and the IT Services company I was employed by did provide a sub to the end client, so the end client was happy to accept them, they clearly needed and held the correct skills and clearances (eDBS).

Doesn't help you, you need to have paid for the sub yourself...

[andydd68]

Any thoughts on this scenario ?

Ive never used a substitute BUT on an occasion I was off and the IT Services company I was employed by did provide a sub to the end client, so the end client was happy to accept them, they clearly needed and held the correct skills and clearances (eDBS).

[eek]

But they still have the right to refuse a future sub so I think the answer to the CEST would still be YES?

Completely irrelevant - the fact you've used a sub is all that matters - as, as I've already stated, actual facts trumps working practices which trumps paperwork..

[Rafd]

If you have actually introduced a sub correctly, paid him through your company etc , then it means that the client has accepted them - regardless of if they had the option to refuse.

But they still have the right to refuse a future sub so I think the answer to the CEST would still be YES? Edit: sorry, misread the second part of your answer. So i take it if you answer YES to the 'right to refuse sub' question but have already used a sub, then the CEST tool will put you outside regardless?