Philip Winfield, database software developer at GlaxoSmithKline

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

No substitution has happened on this engagement

Paragraph 28: "The situation did not arise where either the Appellant or GSK had to consider a temporary replacement or substitute for Mr Winfield." No substitution occurred on this engagement.

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

No — any suitably qualified substitute would be accepted

The most contestable answer in this case. Paragraph 28 finds substitution "would have been feasible (and acceptable to GSK) only if the substitute had had comparable skills", which is what the CEST option "any suitably qualified substitute would be accepted" describes. Against that, the Abraxas contract required a substitute to be "accepted by GSK" and the Appellant contract required Abraxas and GSK to be "satisfied that the proposed replacement possesses the necessary skills and expertise", which read literally is an approval veto. Encoded on the tribunal's own finding of acceptability rather than on the contractual wording. A reader who prefers the literal reading should know this answer flips the CEST result.

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

Yes, I would pay the substitute from my own fee

Inferred, and load-bearing. The Appellant contract provides that the Appellant "may change or replace [the Nominated Individual]", and the Appellant invoiced for the hours worked, so a replacement it supplied would have been its own cost. The judgment makes no express finding on who would bear that cost, and there is a competing route in the Abraxas contract under which the agency, not the Appellant, "can offer a substitute to continue with the project during the Consultant's absence". Encoded on the Appellant-replaces route because that is the arrangement the CEST question asks about.

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

No — a new agreement with me would be required

Paragraph 24: "Mr Winfield brought a unique skill set to the project team. GSK required those skills specifically and only for the project in question." The services were those specified in a Works Schedule mirroring GSK's project specification, so moving him to different work would have required a fresh agreement.

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

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

Paragraph 24 cuts both ways and the conservative answer is taken. In favour of full autonomy: "It was for the Appellant to determine how to carry out and manage its part of the project", the critical design document was "prepared with little input from GSK", and the Spring contract reserved to the Appellant "the right to determine the manner, means and methods". Against it: he "discussed matters with the project manager and reported to the wider project team at progress meetings", and the work "was checked against the standards, quality requirements and conduct of the project stipulated by GSK". Encoded as agreed with others rather than decided without input.

Who controls when you work — the days and hours?

I decide my own working schedule

An express finding at paragraph 25: "Mr Winfield could determine his own working hours. There was an expectation (but not a contractual requirement) that he would be available during the core hours of the working day." Encoded on that finding of fact rather than on the contractual terms, which point the other way: the Works Schedule stipulated a 37.5 hour week "or such other times as may be agreed with GSK", additional hours needed GSK approval for budget reasons, and the Spring contract reserved to GSK the right "to direct where and when the services are to be performed". This is an Autoclenz-style preference for what actually happened.

Who decides where you carry out the work?

I agree the location with the client or others

Paragraph 25: "Normally he worked at GSK's premises. If he chose to work at home he could do so provided the requirements of the project did not require his presence at GSK's premises." A real but conditional choice, so encoded as agreed with the client rather than either free choice or no choice.

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

No

Software development for GSK. No raw materials or physical stock feature anywhere in the findings of fact.

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

No

The same lever as in Marlen, and answered the same way. Paragraph 25: "He required a GSK laptop computer in order to connect to GSK's network, but could copy information onto the Appellant's own laptop computer in order to work on the project at his home." The equipment that made the work possible was GSK's; the Appellant's own laptop was supplementary for home working. Encoded false, because answering true triggers an immediate early exit to outside IR35 on this factor alone, and a supplementary laptop is not the significant specialist equipment the CEST question is aimed at.

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

No

No vehicle features in the findings of fact. The single business trip, to the US, was arranged and paid for by GSK through its central facility.

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

Yes

Paragraph 37: "Throughout this period (from before the GSK contracts and beyond) the Appellant maintained employer's liability and professional indemnity insurance cover", and the Abraxas contract required professional indemnity cover to a specified minimum level. The CEST question names specialist insurance and premises as qualifying costs, and the Appellant also maintained an office with business facilities and equipment at paragraph 15.

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 other expenses are true. CEST asks which single category of cost the worker funds before being paid, so exactly one of the five flags may be set.

How are you mainly paid for this work?

Per time period — a weekly or monthly rate

Paragraph 29: GSK paid "by reference solely to the number of hours worked by Mr Winfield and the stipulated hourly rate of payment". An hourly rate is payment per time period.

If you delivered substandard work, what would happen?

Fixing it would be covered within my normal rate

Inferred. Payment was solely for hours worked, so time spent correcting work would have fallen within the paid hours at the usual rate. The judgment makes no express finding on rectification.

Do you receive employee-type benefits from the client?

No

Paragraph 31 is express: GSK made no payment for holiday, sickness or other absence, no overtime or unsocial hours payment, and no "bonus, pension, health insurance, training or other employee benefits which it made for its employees", and he was not appraised under the GSK employee appraisal programme. Encoded false despite the same paragraph recording that he "was entitled to use the GSK canteen and staff car parking facilities", which the tribunal treated as on-site facilities rather than benefits.

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

No

He was one member of a ten-person mixed team of GSK employees and contractors under a GSK project manager. Nothing in the findings has him managing GSK staff.

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

No

Encoded false, and a reader may reasonably disagree. The project required "close liaison between GSK and a US company, Galt Associates", and he travelled to the US with the GSK project manager. Galt was a collaborating party on the project rather than a GSK customer, and the work itself was on GSK internal medical dictionary and database systems. Notably Galt later became the Appellant's own client in its own right.

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

The engagement ran as a sequence of fixed-period contracts renewed as the project progressed, listed in the table at paragraph 17, with no obligation on GSK to offer further work. The tribunal accepted that "there was no sense of the Appellant or Mr Winfield standing ready to carry out whatever tasks GSK required of them".

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

Each engagement was a discrete project with a defined end. The two GSK projects were separated by a gap of roughly seven months, and the second was for a different team on less specialised work. Paragraph 27 records that he was mindful of "the need to retain the goodwill of GSK for the sake of possible future contracts", which is hope of more work rather than expectation of continuation.

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 strong, and the clearest instance in the study so far. During the second GSK project the Appellant recorded at least 21.5 hours for Galt Associates on its timesheets, with other records indicating 58 hours. Paragraph 36 adds speculative development of a management system for GP surgeries with another contractor, and work for a German company. Paragraph 18 records that the Appellant marketed itself through its website, a professional body and specialist contract websites.

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

Paragraph 37, an express finding: the Appellant "maintained employer's liability and professional indemnity insurance cover" throughout, from before the GSK contracts and beyond them.