Elaine Richardson, IT consultant at Vertex Data Services

Has a substitute ever actually worked in your place on this engagement?

No substitution has happened on this engagement

No substitute was ever sent. Miss Richardson personally performed the services throughout, though she told the tribunal at paragraph 22 that she "could have sent other people to do the work as she knew of at least 6 others who were suitably qualified".

If you needed to send a substitute, could the client reject them?

No — any suitably qualified substitute would be accepted

An express finding, and the one the case turns on. HMRC argued the substitution clauses were fettered because they required VDS consent, and both VDS witnesses said VDS "would not have accepted a substitute". The tribunal rejected that at paragraph 43(b): "We do not accept that in reality the substitution clause was in any way fettered as suggested by Mr Burke. On that basis we are satisfied that the hypothetical contract would have to have a valid substitution clause, which could only be found in a contract for services." Paragraph 22 adds that since VDS engaged her at £600 a day without ever having met her, it would have gone back to the agency for another suitably qualified contractor. Encoded on the tribunal's finding rather than on the witnesses' evidence, which the tribunal did not accept.

Would you pay that substitute yourself (out of your own fee)?

Yes, I would pay the substitute from my own fee

Inferred from the contract structure, not from an express finding, and the weakest answer in this case. Clause 1(b) of the Best/ECR contracts provides that "The Supplier may propose a replacement to perform the Services in substitution for the named personnel". ECR is the Supplier and is the party invoicing, so a substitute it proposed would be paid out of ECR's fee. The judgment makes no express finding on who would bear the cost. A reader who takes the view that the replacement would have come from the agency's books rather than ECR's should know this answer is the one to change.

Can the client move you to different tasks or work areas on this engagement?

No — a new agreement with me would be required

Inferred. Paragraph 40 records that "ECR was engaged for the performance of a specific project", and paragraph 24 finds that the agreements "cannot be varied without the consent of Best/Spring, therefore VDS cannot be said to have daily control". Moving her to different work would have required agreement with the agency rather than instruction by VDS. The judgment makes no express finding on redeployment, so the alternative reading is canMoveWorkerWithPermission.

Who decides how you do your work — the methods and approach you use?

I agree how to do it with others (client team, colleagues)

Encoded as collaborative rather than fully autonomous, which is the more conservative of the two available readings. The tribunal is emphatic that VDS lacked control: paragraph 24 finds "VDS has no control over how the work is done", and paragraph 41 that "Mrs Brown exercised no real control over the way Miss Richardson carried out the contract". But paragraph 25 records that she was one of 12 to 14 people in a design team that included VDS employees doing the same type of work, producing a technical specification, under a peer review system. Absence of client control is not the same as working alone, and a design team settling a specification together is what workerAgreeWithOthers describes.

Who controls when you work — the days and hours?

I decide my own working schedule

An express finding and a strong one. Paragraph 23: her own internal timesheets "reveal variations from 31 hours to 45 hours each week" while the records raised for the agency invoices "merely identified that she had worked for 37 1/2 hours each week", and "If she worked longer or shorter hours she received no more money. The fact that she could work the hours she pleased clearly shows that she was not controlled by Mrs Brown in relation to her working practices." Paragraph 43(d) makes the same point decisive: "A contract of services would specify a 37.5 hours working week and would make no provision for the employee to provide variable cover without consent."

Who decides where you carry out the work?

I cannot choose — I must work at the client's location

Express. Paragraph 30: "all the services had to be provided at VDS to tie in with their computer systems and, as the information was sensitive, VDS did not want information either taken off the site or downloaded on to her equipment at home." Paragraph 24 adds that the work "had to be carried out there".

Did you purchase and supply significant raw materials for this work?

No

Did you provide significant specialist equipment of your own for this work?

No

The load-bearing answer in the financial risk section, as it was in Marlen. HMRC submitted at paragraph 27 that "She did not have to buy any equipment to carry out her work", and the tribunal did not disturb that. Paragraph 30 confirms VDS would not let her download data onto her home equipment, so her own kit was not used on this engagement. Encoded false, even though paragraph 8 records that ECR as a business "has specialised computer equipment and an office", because the CEST question is directed at equipment provided for this engagement. Answering true triggers an immediate early exit to outside IR35 on this factor alone, so a reader who reads paragraph 8 as the relevant fact should know it flips the CEST result.

Did you use your own vehicle as a primary work tool on this engagement?

No

Did you incur significant other work-related expenses at your own risk?

Yes

Express, and unusual enough that the tribunal drew a conclusion from it. Paragraph 26: "During her first contract, when she worked in Bolton, she had rented accommodation, and had had to continue the payments, although VDS had terminated the first contract earlier than was expected. It is unlikely that an employee would have been left with the liability to pay the additional rent." Paragraph 27 adds that ECR "carried comprehensive insurance".

Are significant work expenses simply not applicable to this type of role?

No — expenses could be relevant but I didn't have them

False, because she did in fact carry them. Encoding this true would contradict the accommodation finding at paragraph 26.

How are you mainly paid for this work?

Per time period — a weekly or monthly rate

A day rate of £600 on the first contract and £350 thereafter, invoiced against timesheets under clause 4(b). Encoded as period pay rather than a fixed project price. There is a tension worth flagging: paragraph 43(d) reads the flat 37.5 hour invoicing as "consistent with a contract at an agreed price, which leaves the contractor to deliver the same as best he or she might". That is the tribunal characterising the arrangement, not a finding that ECR was paid a fixed sum for a defined deliverable, and incomeFixed in CEST means a project price. Period pay is the faithful encoding.

If you delivered substandard work, what would happen?

Fixing it would be covered within my normal rate

Inferred. The judgment makes no finding about correcting defective work at ECR's own cost. What it does find, at paragraphs 27 and 32, is that poor performance exposed ECR to indemnity claims with consequential loss not excluded, and allowed Spring to terminate "forthwith". Those are termination and liability consequences rather than a rectification obligation, so the day rate answer is the one that fits: correction would have fallen inside the hours already being paid for.

Do you receive employee-type benefits from the client?

No

Express. Paragraph 42: "There was no provision in the agreements for holiday entitlement, holiday pay, sick pay, the provision of a vehicle, or a contribution to a pension fund."

Do you manage any of the client's employees — acting as their line manager?

No

She was one of 12 to 14 members of a design team led by Mrs Brown, who was the Design Team Leader. Nothing in the judgment suggests she managed anyone.

Do you have direct contact with the client's customers or end clients?

No

Inferred. The work was internal system implementation, migrating TXU Energy and later Powergen customers onto the Accenture Customer 1 billing platform. The judgment records no dealings with VDS's own customers.

Is the client obliged to offer you work, and are you obliged to accept it, throughout this engagement?

No — either party can stop without obligationCEST does not assess this

Express and emphatic. Paragraph 34: the agreements "explicitly state that Best/Spring shall be under no obligation whatsoever to offer further work to ECR nor will ECR be under any obligation to accept any future work, if offered", and the tribunal concludes "We do no accept that there was any mutuality of obligation."

When this contract ends, would you be surprised if the client did not offer you more work or extend?

No — each engagement is discrete and self-containedCEST does not assess this

Express, and demonstrated twice on the facts rather than merely stated in the contract. Paragraph 43(e): "The termination provisions made it clear that there was no obligation on either party to employ the other or work for the other. This was demonstrated when Miss Richardson refused initially to work for VDS, also when VDS subsequently terminated the first contract prematurely." Paragraph 11 records a three month gap between the first and second engagements, during which she was "apprehensive about working for VDS again".

Are you working for multiple clients simultaneously, or have you actively marketed your services to others in the past 12 months?

Yes — I have or actively seek multiple clientsCEST does not assess this

Express and unusually well evidenced, which is what separates this case from Marlen where the same field was the weakest answer. Paragraph 28: "Miss Richardson did, in fact, perform services for two other clients whilst working for VDS." Paragraph 8 adds that ECR "has serviced up to 3 separate clients during the period 2002 to 2005", advertised through its own website carrying her CV, and operated from a dedicated business area with company stationery and PCG membership.

Do you hold professional indemnity or public liability insurance in your own name or through your company?

Yes — I maintain my own professional insuranceCEST does not assess this

Express. Paragraph 27: "Miss Richardson advised us that ECR carried comprehensive insurance as the growing compensation culture increased the risk of being sued." Verdict-only field, so it does not affect the CEST result.