Substitution clause restricted when remaining opted-in

[Spikeh]

Not come across this one before - an agency trying to restrict substitution IF you decide to remain opted-in?

"If the Regulations do not apply, the Service Provider may substitute the Consultant named in Schedule 1 provided that:

... standard sub clauses"

Obviously I'm pushing back on it, but has anyone seen this before, and is it a normal thing? Another tactic to get you to opt-out?

[Spikeh]

It just occurred to me that there is nothing EXPLICIT in the contract that states I cannot substitute if I remain opted-in, just the above term that implies that I cannot substitute.

So... you could argue that if I opt-out I am restricted by the sub-clauses, and if I remain opted-in, I can substitute however the hell I want.

[TheCyclingProgrammer]

Don't rely on ambiguity in your contract - get it put in explicitly. I would be asking for "If the Regulations do not apply, " to be removed.

[Spikeh]

Don't rely on ambiguity in your contract - get it put in explicitly. I would be asking for "If the Regulations do not apply, " to be removed.

Absolutely. I wrote exactly that in my first reply draft, but I've asked them to clarify - next step is to ask them to remove it. There are always a few things I get changed, been doing it long enough to know what to look out for - this was a new one to me, though.

[northernladuk]

I'm assuming you've had your sub clause reviewed and it's been done properly.

[Spikeh]

I'm assuming you've had your sub clause reviewed and it's been done properly.

Can't copy & paste from the PDF and didn't want to write them all out here, but yes, the sub-clauses are fine.

The parent term doesn't apply with the current wording though, as I am opted-in (and intend to remain so), so whether the subs apply or not is irrelevant right now.

[northernladuk]

Can't copy & paste from the PDF and didn't want to write them all out here, but yes, the sub-clauses are fine.

They don't apply with the current wording though, as I am opted-in (and intend to remain so), so whether they apply or not is irrelevant right now.

Yes, cart before the horse but so many people don't get their sub clauses checked and they end being fettered so useless from an IR35 perspective. Most are arguabley a sham whatever the wording so if push came to shove I wouldn't be risking losing a perfectly good gig over something that's likely not to happen/work.

I've never seen the sub clause affected by your opt in/out status before so no idea why they are trying this on.

[Spikeh]

Yes, cart before the horse but so many people don't get their sub clauses checked and they end being fettered so useless from an IR35 perspective. Most are arguabley a sham whatever the wording so if push came to shove I wouldn't be risking losing a perfectly good gig over something that's likely not to happen/work.

I've never seen the sub clause affected by your opt in/out status before so no idea why they are trying this on.

Never seen it before myself either - I feel like they might be doing it to encourage newbies to opt-out. Less admin for the agency, init.

This is a perfect gig in terms of IR35 regardless of contract wording - some consultancy on site, moving to remote work after a few weeks, R&D work in a silo, presenting solution options to stakeholders as necessary, and we even discussed ending the contract early when the work runs out / me working for my other clients during the process (waiting for a few budgets to be signed off). Presented myself as a business / consultant during the interview / initial meeting (as I always do) and they still loved me, so I see no reason why I'd be caught.

FGS, I've never, ever called in a substitute in the 11+ years I've been contracting, as I've never needed to, but I need to know I can should I fall gravely ill, or my hands drop off etc. The same does not apply to sub-contracting though - I've done plenty of that, but many contracts state I cannot sub-contract under any circumstances - not a problem here, though, as I don't think I'll need any skills I don't currently have.

B2B is the way forward, at least you can speak straight to the client about it instead of going through Agency Consultant -> Their Legal Team -> Client's Legal Team -> Client's HR Team -> Client's Hiring Manager -> Line Manager / dude that interviewed you (if you're lucky). So much red tape, misunderstandings and bureaucratic nonsense.

I won't risk losing it, but I wouldn't be doing my due diligence if I let the agency get away with nonsense like this. The contract wording HAS to reflect the reality - they're currently calling me every 5 mins to spin me another yarn that I've heard 100 times before :|

[northernladuk]

I won't risk losing it, but I wouldn't be doing my due diligence if I let the agency get away with nonsense like this. The contract wording HAS to reflect the reality - they're currently calling me every 5 mins to spin me another yarn that I've heard 100 times before :|

You must have copped for a newbie or some career monkey. Normally when an agent realises you know what you are talking about the bulltulip stops and it's get pushed through with minimal input.

[Old Greg]

Not come across this one before - an agency trying to restrict substitution IF you decide to remain opted-in?

"If the Regulations do not apply, the Service Provider may substitute the Consultant named in Schedule 1 provided that:

... standard sub clauses"

Obviously I'm pushing back on it, but has anyone seen this before, and is it a normal thing? Another tactic to get you to opt-out?

Opt out late so it is invalid. Then get the clause removed.