Split from "Agency want my NI number"

[TopNotch]

Originally Posted by Bel

To be honest, I'm more concerned about the way to describe your work: as a role (very deemed employed); insisting on a substitution clause (not much good if it can't be exercised in practice)

What's wrong with saying 'role'? What word should I be using to describe my latest contract??

Secondly, I insist on a substitution clause because I do actually know some other contractors who could do the work if I couldn't... and have when I was ill once.

[Bel]

Originally Posted by TopNotch

What's wrong with saying 'role'? What word should I be using to describe my latest contract??

Secondly, I insist on a substitution clause because I do actually know some other contractors who could do the work if I couldn't... and have when I was ill once.

There's nothing intrinsically wrong with calling your work a 'role' But I am wondering if you were describing what I defined as 'deliverables' or whether you were actually describing a de-facto deemed employed position with a hirer, that's all.

To me the word 'role' conjures up an image of someone taking over the postion of someone else, who is absent, or taking on an unoccupied job that's provided by the hirer - hence you're likely to be under the control of the client.

Not someone that's been briefed to 'deliver' something of their own to sell to the hirer, based on the time it takes your company to complete it. Hence, my preferred definition 'deliverables.' But, ultimately, it's not the name that matters, it's the description of what lies behind the definition. Eg., it's better to call deliverables (as I defined them) a role, than to describe a role as deliverables if you wish to be likely self employed in reality.

The point I made about about substitution is whether it can be exercised in practice. It's all very well you knowing people that can take the work on in your absence, but has the hirer agreed to this, in the upper contract? I just wanted you to be sure that a 'right to sub' on paper really means very little at all. Unfortunately, some contractors haven't absorbed that message very well yet.

But without knowing the full nature of your engagement, it's impossible for me to answer these questions - so I'm not assuming anything. Only you know the answer to these questions.

I'm just trying to help, that's all.

[Malvolio]

Originally Posted by Bel

There's nothing intrinsically wrong with calling your work a 'role' But I am wondering if you were describing what I defined as 'deliverables' or whether you were actually describing a de-facto deemed employed position with a hirer, that's all.

To me the word 'role' conjures up an image of someone taking over the postion of someone else, who is absent, or taking on an unoccupied job that's provided by the hirer - hence you're likely to be under the control of the client.

Not someone that's been briefed to 'deliver' something of their own to sell to the hirer, based on the time it takes your company to complete it. Hence, my preferred definition 'deliverables.' But, ultimately, it's not the name that matters, it's the description of what lies behind the definition. Eg., it's better to call deliverables (as I defined them) a role, than to describe a role as deliverables if you wish to be likely self employed in reality.

The point I made about about substitution is whether it can be exercised in practice. It's all very well you knowing people that can take the work on in your absence, but has the hirer agreed to this, in the upper contract? I just wanted you to be sure that a 'right to sub' on paper really means very little at all. Unfortunately, some contractors haven't absorbed that message very well yet.

But without knowing the full nature of your engagement, it's impossible for me to answer these questions - so I'm not assuming anything. Only you know the answer to these questions.

I'm just trying to help, that's all.

Hmmm...

And if your role is to act as an interim manager? Or to supervise the handover from local to Shared Services? Or to sort out a mess of a complex programme of work that is failing due to a lack of central process and change management? The test of Control is "to what extent are you able to determine how to fulfil the work in question". I would suggest that most of the time, we are not working to a proscribed set of instructions but to a general end requirement that we fulfil however we see best. We should only be bound by the same business requirements as the permanent staf, as you have said yourself. Agreed a set schedule of deliverables is the optimum, but in many cases it is very difficult to define such a set.

Also, show me an employee whose contract of employment allows them to send a substitute. That is the test, not the actual substitution, and that was set by fairly early case law.

[UKFF Mod]

I have decided to split the "Agency want my NI number" thread in our Ask An Expert section as it was beginning to stray off topic - the preceding debate is here.

[Bel]

Originally Posted by Malvolio

Hmmm...

And if your role is to act as an interim manager? Or to supervise the handover from local to Shared Services? Or to sort out a mess of a complex programme of work that is failing due to a lack of central process and change management? The test of Control is "to what extent are you able to determine how to fulfil the work in question".

I would suggest that most of the time, we are not working to a proscribed set of instructions but to a general end requirement that we fulfil however we see best. We should only be bound by the same business requirements as the permanent staf, as you have said yourself. Agreed a set schedule of deliverables is the optimum, but in many cases it is very difficult to define such a set.

Also, show me an employee whose contract of employment allows them to send a substitute. That is the test, not the actual substitution, and that was set by fairly early case law.

Read my article 'IR35 and teamwork - all your questions are answered there and relate to all of your examples above. Also the tests of control extend a lot further than the 'how test, as you state above. It's about what needs to be done, not just how, along with other relevant tests, depending on what the 'whole picture' looks like.

Some permanent employees do substitute but, at most, it could only ever be a 'fettered' right (if there's a clause in the contract at all, which is unlikely in most case). Eg., a boutique owner employs his friend's daughter to run the boutique. She's about to go away on holiday. The assistant arranges with the owner for his old friend, her mother, to take over whilst she's away (a) because the owner is likely to agree (b) it saves him the hassle of getting in an untested temp (c) he already knows her and trust his assistant's judgement. It happens all the time. Never fall into the trap of assuming that subbing is the sole preserve of contractors. It's not.

I also think you're slipping into the 'that's not how we work' mode. That's not the point, unfortunately.

[Pistachio]

I'm still confused about this 'role' business.... what words should I use to describe my contracts?

Although to be honest I think it's a pointless argument, since we're constantly being told that our contracts must match our work practices, so I can't see what difference the semantics of casually describing your current work makes. I very much doubt a tax inspector would think "aha! He said role! I think there's more to this than meets the eye!"

[Bel]

Originally Posted by Pistachio

I'm still confused about this 'role' business.... what words should I use to describe my contracts?

Although to be honest I think it's a pointless argument, since we're constantly being told that our contracts must match our work practices, so I can't see what difference the semantics of casually describing your current work makes. I very much doubt a tax inspector would think "aha! He said role! I think there's more to this than meets the eye!"

It's not a tax inspector that contributors have to impress on this discussion board. It's how best to communicate your overall work description to us on here for advice. That's why I stressed this point. A role (as typically defined) could either describe deliverables or tasks and duties. I just wanted to be sure that I knew what I was dealing with, that's all, particularly in the light of what TN said about his sub clause.