Employed or self employed?

CTA_2

John_Pierpoint wrote: »

What about the right of substitution ie on the day you don't want to turn up you send along your mum?

excellent point here. Indeed, case law has shown that if a substitution clause exists in the contract, it is usually sufficient to prove that this is not a contract of service (meaning not an employee).

pjclar02

CTA wrote: »

excellent point here. Indeed, case law has shown that if a substitution clause exists in the contract, it is usually sufficient to prove that this is not a contract of service (meaning not an employee).

My view is that the existence of a substitution clause will no longer be sufficient going forward (on the basis that anyone can write a substitution clause into a contract when they may not even have anyone suitable to send along to do the work).

Going forward I imagine HMRC will look more at the commercial position in terms of whether a substitute exists, and in reality has this person actually be sent in to do some work. This would be in line with the new tests for IR35, which award points for sending a substitute (rather than having a contract that says a substitute can be sent).

CTA_2

pjclar02 wrote: »

My view is that the existence of a substitution clause will no longer be sufficient going forward (on the basis that anyone can write a substitution clause into a contract when they may not even have anyone suitable to send along to do the work).

Going forward I imagine HMRC will look more at the commercial position in terms of whether a substitute exists, and in reality has this person actually be sent in to do some work. This would be in line with the new tests for IR35, which award points for sending a substitute (rather than having a contract that says a substitute can be sent).

I imagine HMRC does look at the reality rather than the 'de jure' of a contract. I would like to think that a court would stick to the principles of contract law, but impossible to say. Last time i looked at this area was about 4 years ago.

I fundamentally only practice in corporate tax now, I find coming on here forces me to maintain some of my other technical knowledge for the other taxes!