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Substitute Pooling

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    Substitute Pooling

    A lot of the conversations surround working practices and the one that always comes out on top is could you provide substitute if circumstances dictated?

    Even if contract is worded with no handcuff clauses.

    Has this website ever teamed people up with various backgrounds who could step into the breach? As a security expert, I may not have many others with comparable skills bought for java programmers this would be a good idea isn't it?

    #2
    Might be better if you post this in prof forums... and have a search as well.

    The problem with 'teaming up' is trying to find someone that is out of contract just when you need them... I for one certainly won't be sitting on the bench waiting for someone to need a sub...
    'CUK forum personality of 2011 - Winner - Yes really!!!!

    Comment


      #3
      Yes, I was going to put this in wusiness and contracts but hit wrong hyperlink.

      What I mean is not necessarily even somebody to actually carry out substitution but somebody you can point at if the IR asks questions. This person could be made employee of your LLC no?

      Comment


        #4
        Unless you actually use these substitutes then HMRC will see straight through this imho. A judge will simply rule that this made no difference to what was happening day to day on client site and will disregard it.
        "He's actually ripped" - Jared Padalecki

        https://youtu.be/l-PUnsCL590?list=PL...dNeCyi9a&t=615

        Comment


          #5
          Originally posted by wikramasingha View Post
          Yes, I was going to put this in wusiness and contracts but hit wrong hyperlink.

          What I mean is not necessarily even somebody to actually carry out substitution but somebody you can point at if the IR asks questions. This person could be made employee of your LLC no?
          How can they be a substitute if they are not available?... and we are LTD's not LLC's... again.

          WMUNS
          'CUK forum personality of 2011 - Winner - Yes really!!!!

          Comment


            #6
            AIUI - The reasonable right of substitution is what is required.

            They can see through as much as they like. Legally the right is enough.

            If your builder says: I might use Mike to do the bricklaying because he is faster but I might do it myself because he is busy in Feb. That is a right of substitution even if Mike never turns up. It's even stronger if he says I might use one of my usual bricklayers (its a substitute entirely up to him).

            By reasonable it can be qualified, it can't be fettered.

            So saying it needs someone with 20 years of experience and qualification X is qualifying.

            Saying that the client can choose and reject without reasonable cause (e.g. if he is a Ginger). is Fettered.

            If Mike turns up and has tourettes in front of your young kids or can't lay bricks you as a client can tell him to go.

            That is why you get your contract reviewed.

            IANAL of course.

            Trick of course is to have multiple customers and in some places use other people to do the work.
            Last edited by vetran; 5 February 2013, 16:48.
            Always forgive your enemies; nothing annoys them so much.

            Comment


              #7
              Originally posted by vetran View Post
              They can see through as much as they like. Legally the right is enough.
              Not really. It has to be realistic and have a chance of being applied. If you name someone that at the point of investigation is in contract they will right it off as a sham. You could argue putting a named resource in that may not be available could work against you. JLJ had a right of sub in his contract but because the client said they wouldn't it was written of as a sham. The right isn't enough, it is the actual working practice that counts. If it won't work it won't cut it I would have thought.
              'CUK forum personality of 2011 - Winner - Yes really!!!!

              Comment


                #8
                In law the right is enough.

                certain judgements have ignored law and have taken dicey 'evidence' from interested parties that benefit from preventing a not guilty verdict.

                which is why IR35 is totally tulip.

                sooner they have a decent law the better.
                Always forgive your enemies; nothing annoys them so much.

                Comment


                  #9
                  Originally posted by northernladuk View Post
                  Not really. It has to be realistic and have a chance of being applied. If you name someone that at the point of investigation is in contract they will right it off as a sham. You could argue putting a named resource in that may not be available could work against you. JLJ had a right of sub in his contract but because the client said they wouldn't it was written of as a sham. The right isn't enough, it is the actual working practice that counts. If it won't work it won't cut it I would have thought.
                  If the person is in contract it doesn't necessarily follow that they're unavailable. There are plenty of likely circumstances they may come and substitute for you, paying them more than current rate, getting some different experience, build their own contacts or do you a favour.

                  If HMRC are looking to show that your substitution clause is unrealistic or a sham, yet you can show that you had agreements with suitably qualified/experienced/skilled individuals who could do the work then I would think you've got some useful supporting evidence that the ability to substitute was valid. If you never had cause to substitute and the client has not given statements opposing it, plus you have supporting evidence of how it'd work in practice then not sure they'd have shown it to be a sham, but then IANAL.

                  Comment


                    #10
                    Originally posted by smatty View Post
                    If the person is in contract it doesn't necessarily follow that they're unavailable. There are plenty of likely circumstances they may come and substitute for you, paying them more than current rate, getting some different experience, build their own contacts or do you a favour.
                    Not enough to be realistic.

                    If HMRC are looking to show that your substitution clause is unrealistic or a sham, yet you can show that you had agreements with suitably qualified/experienced/skilled individuals who could do the work then I would think you've got some useful supporting evidence that the ability to substitute was valid. If you never had cause to substitute and the client has not given statements opposing it, plus you have supporting evidence of how it'd work in practice then not sure they'd have shown it to be a sham, but then IANAL.
                    Means nothing.. HMRC look at working practice. Naming someone on a contract means squat. If it actually worked don't you think it would be standard practice and QDOS would be advising us to do it.

                    It's meaningless to have name on a paper. End of.
                    'CUK forum personality of 2011 - Winner - Yes really!!!!

                    Comment

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