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I work as a contractor in the UK and am predominantly employed by one Company with whom I have a contract. There is a clause in my contract which states:

In the event that the contractor is unable or unwilling to provide the whole or any part of the Services for whatever reason, the Contractor will offer the Company a substitute with equivalent skill and expertise to perform the Services on their behalf.

Right now I am unable to work due to a mental health reason and coping with finding a replacement is not helping at all.

The fact that the contract states only that I must "offer" a replacement, could it be argued that the availability of that replacement is irrelevant?

The contracts goes onto say that should "the Contractor fail to supply the Services at a particular time, date and/or location" then I will be charged an admin fee equivalent to 20% of my usual fee for that service at that time/date/location.

Does this second part override any "get out" I may have in the first part?

Any advice gratefully received.

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  • Are you actually personally employed, or is your "employer" engaging the services of your limited company? An employment contract in the UK would never use the word "contractor" these days because of IR35. Mar 4 at 10:09
  • Hi Phillip - I am a sole trader and the contract I have signed with this organisation uses the term Contractor and Subcontractor (this is how they would class any "substitute" I find) throughout.
    – Megmoto
    Mar 4 at 10:16

3 Answers 3

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Read your contracts before signing and clarify anything unclear then, not after you put your name on the dotted line.

As you clarified that you are a sole trader, you don't have an "employer", and you are not "employed", you provide services. It's important to understand the difference.

The reality of contracting is that if you don't work, you don't earn, as you didn't provide the service as stated in the contract.

What's worse it seems that you've signed up a contract with penalties for failing to work, so not only you will not get paid (as services were not provided) but also have to pay them a fine for it. That's not 100% clear as we only have few sentences of entire contract, and I am drawing conjecture based on what those clauses usually mean.

Your get out is to have an honest chat with them and figure a fair way forward. If you cannot work anymore, you cannot work, and hope that they will agree to simply terminate the contract.

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  • Thanks Aida - looks like a case of "live and learn". I wil speak to them and try and sort something and come to a mutual agreement
    – Megmoto
    Mar 4 at 10:31
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    @Megmoto Good luck. Reality is that trying to collect any of that (past wages they didn't pay out yet) is too expensive to bother, so unless they want to be petty just cutting you loose is likely the best course of action. And I cannot express enough how you need to learn a lot about downsides of contracting before signing another one, as you are effectively fully responsible for yourself, you do not qualify even for SSP.
    – Aida Paul
    Mar 4 at 10:36
  • Thanks - much appreciated.
    – Megmoto
    Mar 4 at 11:26
  • Company is insisting that I need to find a substitute from the cohort of other contractors providing the same service (it's a nationwide kids drama group). I intend to say I have "offered" substitutes (the others in the cohort) and cannot do anymore and have met my contractual obligation in this regard. Their option then is to charge the "admin fee" of 20%. None of this is helping my mental crisis unfortunately.
    – Megmoto
    Mar 5 at 17:03
  • @Megmoto that's something you will have to figure out, sorry.
    – Aida Paul
    Mar 5 at 17:11
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There is a high likelihood that this term about substituting someone else is there to make sure that you are judged to be "outside IR35", which has significant cost advantages both for you and the company. If you didn't have the right to substitute someone else that would point at you falling "inside IR35" with significant cost to everyone.

So before you do anything, talk to your client if they are actually interested in getting a replacement. Because that means they have to pay full price for someone who is not up to speed with the work that they are doing.

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Quick point: This is part of why contractors can and do charge higher per-hour rates than employees. Your income has to cover all the benefits that an employer normally provides to full-time employees, plus the periods between contracts, plus any substitution or penalty clauses you are unable to avoid.

If it doesn't, you probably don't want to take that contract.

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