10 Years and Nothing!!

[GreatBigHooAndToodaloo]

I don’t even know what my AIBU is. My head is spinning. I’ve name changed for this because it could be outing.

I’m furious. My DH has worked for the same man for 10 years. He is a highly skilled tradesman (engineer) His bastard boss refused to take him on as an employee even though he wears the uniform, drives a sign written vehicle, works set hours and doesn’t do any other private work. He is essentially an employee without any of the benefits. The bastard boss hides behind the CIS scheme so that he can get all the benefits of having an employee without the faff. My DH hasn’t had a single day of paid holiday or sick leave for nearly 10 years.

Bastard boss comes to the house after work on Friday and announces that he is closing the company and moving overseas in a weeks time. One week!

He has also made it clear that there will be no redundancy pay. He got the work vehicle evaluated and has said my DH can buy it from him. He showed the evaluation to my DH. He is refusing to give him any discount on it. Not a single penny. I’m furious and heartbroken. I don’t know what we’re going to do.

Does anyone have any advice? Is there anything we can actually do? Ten years of loyalty. Ten years!

@CastawayQueen I did not say it was illegal. I said it was unfair and shitty of him not to take care of someone who has worked for him for 10 years.

This sounds like you need legal advice from solicitors who specialise in employment law. I think your DH have a good case for pursuing “Implied Contract” I’ve copied and pasted a simple definition of IC which his scenario would seem to fit:

“Implied agreements create enforceable legal obligations between parties when honest business people would expect the business reality to be legally enforceable, and there is no express agreement.

Implied contracts mitigate against cases where one would-be contracting party acts as if there was a contract in force, and then, when it suits them denies a contract exists because the legal documentation does not satisfy the usual requirements of express contract.“

What exactly does he do and what part of London are you? Probably a lot of work to be had at the moment, so crack on with that.

I’m so sorry OP, this is shit
I would advise you against taking any legal advice from anyone on here though (including me). A lot of people don’t understand the CIS scheme and can’t see how this may have been perfectly legal.
I doubt IR35 would be applicable either.
I hope this turns out to be a brilliant new start for you - my DH was screwed over by a Dick head boss around 10 years ago and in some ways it as great as it pushed DH to do certain things that mean we now have far more money and flexibility
Good luck to you both

Sorry, pressed post too quickly.

Your DH clearly has plenty of evidence to support this claim - the signed van being a pretty significant one! There’ll clearly be evidence from invoices of work undertaken on behalf of the company too. I think his case is a very strong one against this nasty piece of work.

@ramamamadingdong

I'm no expert but you might want to google 'IR35' which is about companies not formally employing people who are working as employees would be.

IR35 has no relevance here - it relates to people operating their own limited companies which OP has made clear her DH is not.

If your DH can effectively take over the business then I am not sure it is worth your energy going after the shitty boss. It will be a massive distraction at a time when you need all your focus on getting the business going.

@Hoppinggreen Thank you! It is perfectly legal unfortunately, I’m just having a moan because it’s just not ethically right is it? It’s incredibly frustrating. I have a feeling this IS going to be a brilliant new start for us. After today I’m only going to look onwards and upwards. I think I just needed a few other people to tell me that this guy is a total dickhead and that karma will get him at some point. I’m sorry your DH was screwed over too.

Best of luck with the new business, OP. I visualise the old director's new home being plagued with unfixable rising damp ...

Be very careful before reporting the old boss to HMRC. You’re husband probably paid less tax through not being an employee (he would be on a much lower national insurance rate) and HMRC could potentially come after him for 7 years worth of back tax. It’s not a route I’d go down.

[quote GreatBigHooAndToodaloo]@HopeHappy I can’t thank you enough! This is so so helpful. Thank you. He is a Gas Engineer so definitely falls within the construction industry category.[/quote]
You're more than welcome. I hate people that are so bloody selfish like that!

Definitely could fall within the realms of CIS then, but I think the fact that he's worked exclusively for them for over 10 years means the employment versus self employment trumps this.

Speak with ACAS and/or an Employment specialist solicitor on a no win, no fee basis. I would suspect he's got excellent grounds to sue for some form of unfair dismissal/redundancy pay and the historic leave.

Also, contact HMRC here - www.gov.uk/report-an-unregistered-trader-or-business - it's not just for unregistered businesses, but for reporting tax evasion, which deliberately keeping someone on a CIS basis when they should have been an employee is.

As mentioned above, the amount of employer's NI he would have had to pay if your DH was an employee is not insignificant. Even if HMRC only went back 6 years, which is their main limit, they would likely be interested in pursuing it.

@Waitrosedisaster

HMRC would almost certainly consider your husband an employee, but considering he's been knowingly submitting tax returns (and presumably claiming expenses) for the past 10 years, I'd be very careful.

As a CIS contractor he is protected from HMRC as it is his "employer" that makes the decision and it is that employer that is penalised for getting it wrong.

Even if someone works cash in hand and doesn't pay tax over, HMRC would demand the tax from the employer and work it backwards from the amounts paid (i.e. you pay someone £1,000 in cash and HMRC assume that is the net salary after tax and NI, then make the employer pay that tax and NI).

That way the employee is not buggered by unscrupulous employers.

HMRC would go back 6 years if the behaviour is considered careless. Careless means the person did not deliberately or knowingly bring about a loss of tax. This would not fall within the remits of careless, this is deliberate behaviour, meaning HMRC would be able to go back 20 years. Also, where a person's behaviour is considered deliberate and not careless, they will/cannot suspend a penalty. A penalty is based on the potential lost revenue and off the top of my head, for deliberate behaviour the minimum % is 35% of the potential lost revenue.

Your mistake was posting in AIBU, OP. You should have posted in Legal.

I get your upset but TBH the guy has shut his business which he has every right to do.
DH knew he was a subcontractor thats why the money was so good . You can't have it both ways it's sub contractor pay or employee pay and terms conditions and benefits .

Why hasn't he got the right to close his business.

A lot of people work under CIS for one person, and are happy to do so. By the time they submit some expenses, they usually get a tax refund.

It seems odd that your DH has not had any expenses, most subbies have some, phone, stationery, protective clothing, tools etc.

It does seem that your DH was happy to work like this for 10 years. One of the things of being self employed is that you are taking a risk, so sadly you can't have it both ways. Most subbies do it because they pay less tax than they would as an employee.

As a self employed person, your DH was responsible for his own holidays and only had to inform the contractor that he was unavailable for work that week. and yes holiday would have been without pay because he was self employed.

It is a shitty thing that the contractor has done and immoral, but you can tell a self employed person that you dont want them tomorrow and thats that, because they are not an employee.

@GeorgiaGirl52

Make a list of all the clients your husband has serviced. Buy the truck. Contact all the clients and let them know he is now in business for himself. He may find he is better off owning/operating his own business.

This. Work fast, cut your losses with the bastard ex boss and capitalise on customer loyalty asap.

"@GreatBigHooAndToodaloo

I called all the suppliers yesterday and they’ve been so supportive, apparently they’ve been hoping this will happen as they too hate bastard boss. We have a few clients contact details but not all of them. I’m going to work on that today.

Maybe also try putting a notice on Facebook, Twitter and Youtube? that the businesses under new management. Also look at registering with organisations like Checkatrade and I think Rated Traders? (Can't remember the name) as well as advertisements in local newspapers/magazines (especially digitally). Maybe, later, see if the new business can have its own website.

It's a shame this boss didn't value such a good worker but hopefully working for himself your DH/DP will be much more successful. Good luck to you both. 🌹

I think in the end this could be a good thing. Your DH will be in control now and I’m sure will make a success of it

@Ooodlesofboodles

If your DH can effectively take over the business then I am not sure it is worth your energy going after the shitty boss. It will be a massive distraction at a time when you need all your focus on getting the business going.

this is good advice

and no, there is no such thing as karma, this guy may go onto to live a comfortable life to the day he dies, so focus on what you can do and try to forget about him other than to watch out for users in the future. You'll surely get some who don't want to pay up etc when you are running the business so work on building up a reliable client base

I run my own business and own it outright having previously been an employee of said business.

View this as a fantastic opportunity to in effect take over the business without actually having to pay for it. Don’t waste your time and energy on looking back just focus on how you can make this work going forward where your husband can own his own successful business and build it up under his own steam.

You’ve set certain things in place, now do a business plan and go to the bank if you need a working bank overdraft for the business. Liaise with your accountant and keep all those client contacts and work out the path forward.

View this as a gift. Turn it around and stop wasting your energy on the previous owner. He’s now history and he’s not sold his business assets on so now is your husband’s chance to capitalise upon everything he’s done for the past 10 years.

Just look and plan FORWARD and good luck it all sounds very positive.

ACAS are very good but you will need to act quickly if BB is leaving the country!
Sounds like a breach of IR35?
Also company I worked for never kept contractors for more than 2 years because then they could be deemed to be employees and entitled to all benefits including redundancy.

You knew what this guy was like and still stayed. Your DH was paid good money precisely because of this risk.
. It’s like letting a snake into your house and then being shocked when you get bitten 😂 try not to be so naive in business

Sorry if I am repeating - I'm being lazy and haven't read up but, this is a breach of IR35. Have you tried using the gov.uk calculator?

www.gov.uk/guidance/understanding-off-payroll-working-ir35

We, as a business, have had to cover ourselves by answering the questions applicable to our subbies, to show that they shouldn't be employed by us. Perhaps your hubby can use this from his own perspective (Q1 is, are you the worker or the employer)

At the end of the questions, you get a result. If the result is in DH favour, print it out and present it to his boss? If bossman doesn't agree, present to Citizens Advice.

I wouldn't waste any energy on old boss - focus on new business and getting clients in and paying. Focus on the paying bit and chase and follow up on the dot to get money flowing. Keep good books, put aside tax and NI monies and so on. He doesn't need his attention diverting from making the new business work