Sustitution - is it realistic?

[Louraine]

Hi,

I currently have no clients because of IR35 reform. I will take this as an opportunity to be stronger on 'outside' status for future engagements. I've been reasonably happy with my self-determined outside status, but I admit some contracts could have been stronger.

My stricter stance on IR35 may of course mean I get no work and end up giving up contracting. I accept that.
I know the client takes the liability now but I would rather not contract than do it on shaky grounds.

Previously I have been happy if I have a Qdos reviewed substitution clause and the client verbally confirms they would honour it. I'm not sure that is enough now.

Substitution is a significant factor in getting an outside status from CEST. NHS digital said the same when giving evidence to HOL committee.

My belief is that substitution is only workable when a Ltd company has a pool of engineers or work is routinely subcontracted. I believe that substitution is not practical or desirable for most contractors / clients. I'm happy to be proven wrong.

My questions are to single person PSCs: Do you honestly believe you could defend your substitution clause? If yes, how are you practically applying substitution? Is substitution even desirable for contractor & client?

I'm not talking about gaming the system. For example bringing in another contractor for 1 day to prove the clause.

Thanks,
Louraine.

[Paralytic]

Welcome Louraine. Just be aware that people may be nervous responding to this as there have been occasions in the past when people have posted questions that lead responders to admit things that could be detrimental to any future "challenges" they might have.

I'd certainly be wary of saying on a public forum that I don't believe I could defend a substitution clause.

[northernladuk]

Didn't really need thr TL;DR bit. We are more than aware what substitution is but..

Do you honestly believe you could defend your substitution clause?

Yes. It's been done before even if it's not been invoked.

If yes, how are you practically applying substitution?

I have a good idea but I'll deal with it in the unlikely event it is needed

Is substitution even desirable for contractor & client?

Well it's a main pillar of IR35 so of course duhhhhh

You do realise the determination of your status is now out of your hands don't you?

[northernladuk]

Welcome Louraine. Just be aware that people may be nervous responding to this as there have been occasions in the past when people have posted questions that lead responders to admit things that could be detrimental to any future "challenges" they might have.

I'd certainly be wary of saying on a public forum that I don't believe I could defend a substitution clause.

You need to drop the dosge on your meds.

[Paralytic]

You need to drop the dosge on your meds.

?

[zonkkk]

Hi,.

My questions are to single person PSCs: Do you honestly believe you could defend your substitution clause? If yes, how are you practically applying substitution? Is substitution even desirable for contractor & client?

I'm not talking about gaming the system. For example bringing in another contractor for 1 day to prove the clause.

Thanks,
Louraine.

Yes I can defend it. Client says it's fine with them, I have an extensive network of contacts working in the same industry, a few of which said they would be happy to substitute for me.

How is bringing another contractor in for 1 day 'gaming' the system? It proves that I can bring somebody in and the client accepts them.

[Louraine]

You do realise the determination of your status is now out of your hands don't you?

Yes, Determination of the contract status is strictly out of my hands. I am however involved in discussions with prospective clients about determinations. It's at times like this substitution has to be discussed frankly.

I'll work on my TL; DR.

[northernladuk]

How is bringing another contractor in for 1 day 'gaming' the system? It proves that I can bring somebody in and the client accepts them.

Because you can't properly provide a sub for 1 day. The sub should be brought up to speed in the contractors own time and access to client systems needs sorting and it's just not feasible from a business perspective so will be just playing the game.

[northernladuk]

Yes, Determination of the contract status is strictly out of my hands. I am however involved in discussions with prospective clients about determinations. It's at times like this substitution has to be discussed frankly.

I'll work on my TL; DR.

Ah, well that's exactly the right way to do it. We've had a number of threads about people suggesting signing a form where the contractor outlines their substitution situations and gives a named person to sub. Some say it's a good idea, I think it's a total waste of time. The argument is it might win the client round if they are unsure but it's so thinly veiled I'd be worried about the clients understanding and knowledge if this helps at all.
Lemme see if I can find them for your interest.

Can't find the one I was thinking off but here are some similar ones.

https://www.contractoruk.com/forums/...stitution.html
https://www.contractoruk.com/forums/...greements.html

The fact that we've been discussing substitution for over 10 years and never once has a separate agreement being mooted by any of the professionals kinda speaks volumes to me.

The only way to sort this properly is to educate the client on what it is and what will happen and then, when they fully understand it, they can make a call on the determination. If it doesn't go your way then you've done your best and it is what it is. I would be very wary building up a situation that you kinda know in the back of your head really isn't a true reflection of the situation.

[Louraine]

https://www.contractoruk.com/forums/...stitution.html
https://www.contractoruk.com/forums/...greements.html

Thanks, these are useful.

I would be very wary building up a situation that you kinda know in the back of your head really isn't a true reflection of the situation.

Exactly this. I agree.