ESM0538 - Guide to determining status: ignoring a claimed right to substitution

A right of substitution is normally a pointer towards self-employment. Remember, if you are to ignore a claimed right of substitution it is for you to find the evidence that will show that the claimed right does not exist. In such cases you should always speak to the engager and the worker. You need a thorough understanding of how the work will be done and whether supplying a substitute would be feasible. The following points are some ideas on what to look for

• check whatever documentary evidence is available. For example: letters exchanged before the contract is signed, job advertisements, bank accounts etc
• have there been circumstances in which you would expect a substitute to be provided such as a domestic emergency, illness and holidays?
• has a substitute ever been provided? If not, why not?
• if a substitute is used, who paid (or would pay)?
• is there any evidence that a substitute has been rejected at any time? If so, why?
• would the engager accept any substitute? If not what restrictions are there?
• are similar workers engaged on similar terms? If so, have they ever sent substitutes? If another similarly engaged worker has supplied a substitute, it rather suggests the claimed right is genuine
• is there evidence that any other terms in the agreement between the worker and the engager are a sham? If so, this may cast doubt on the credibility of the agreement as a whole.

It is essential that you find convincing evidence to back up any claim you make. Closed questions are unlikely to lead to the truth if the right is not genuine. You cannot assert that a right of substitution does not exist just because a substitute has never been provided.