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Original poster

Is this legal?

57 replies

surelynot16 · 08/09/2021 09:07

Sorry NC
So my partner has worked for a self employed man for around 4/5 years but has only been on his books as part time since April 2019
He's on his books as 16 hours pw however he works around 70/80 hr pw
He's works mon-fri 8am ish - 5/6pm ish
Nearly every Saturday & a few sundays.
He doesn't give him any holidays, takes a huff with him if he has a sick day & if he does take a week off the £147 that goes in his account for the ( 16hrs ) he's down for he makes him give him back.
Surely non of this is legal? I'm not convinced he's even down as 16 hours legally as he would still be entitled to holiday pay & sick pay. Something about this is all wrong. Anyone know the right way to tackle this please? TIA

OP posts:
Original poster
surelynot16 · 08/09/2021 09:27

Bumping
Also forgot to mention. Hes never been asked to sign a contract so I'm 100% sure his boss doesn't have him down legally.
Even PT employees get contacts & holidays.

OP posts:
sashh · 08/09/2021 09:33

Not having holidays is illegal.

Not sure about the books as it could be part time with considerable overtime.

You need some expert advice.

CorrBlimeyGG · 08/09/2021 09:34

Is your partner paying tax and NI on his earnings? Is he getting cash for all the extra hours?

ChicChaos · 08/09/2021 09:34

He should get holidays, employers don't have to pay sick pay and the Government sick pay (SSP) doesn't kick in until you've been off for three days (it's paid from the fourth day) so the period before that can be unpaid.

Is your partner paying tax and NI on all of his earnings? He'd need to earn £120 a week to be eligible for SSP, for instance.

legoriakelne · 08/09/2021 09:40

You can have an employment contract without signing anything.

Are they related?

How is your partner surviving on £7k per year income? Why is he accepting this arrangement? Are you sure that's really all he receives?

Mon-Fri 8am - 5pm is c40 hours assuming a lunch break. Even if he worked til 6pm with no breaks that's still only 50. So you're saying he works 10-11 hours per day, 7 days per week without any breaks for £147?

Your post doesn't make a lot of sense.

CorrBlimeyGG · 08/09/2021 09:44

I'm guessing there's more money paid without being declared, and this raises the possibility of both parties acting unlawfully.

Original poster
surelynot16 · 08/09/2021 09:47

@CorrBlimeyGG his boss says he is paying tax & NI but my dp has never seen a payslip/wageslip so we can't really know for sure. He pays £147 into dp's bank account & pays him the rest cash in hand.
I'm not defending my dp here but hes suffered years of anxiety & never been in a proper job or ever attended an interview.
He met his boss while carrying out the odd job in our local area & his now boss approached him and asked him to work for him.
Dp seems to think this man is doing him a favour by employing him & I can't stress to him enough that he's taking full advantage of him. Having him doing 90% of the work & the boss takes holidays 2/3 weeks at a time & has most weekends off & dp is made to carry out the work alone with no extra pay & stay until all jobs are done.
They work outdoors & have numerous clients don't want to say too much in case it's outing.

OP posts:
Original poster
surelynot16 · 08/09/2021 09:51

@ChicChaos yeah this is my point, even if his boss claims he's only contracted to 16 hours pw & claims the rest as overtime he is still entitled to holidays right? Not that hes ever seen a contract or wageslip.

OP posts:
NeverTalkToStrangers · 08/09/2021 09:52

It's not remotely legal no and sounds like it's verging on modern slavery. What's he living on? Is he claiming Universal Credit? Or does he just have really cheap housing?

The official answer is "You need to pay me minimum wage for each hour I work and give me 20 days paid holiday a year otherwise I'm off and will also report you to the relevant authorities for breach of minimum wage laws". But it may not be quite that simple.

NeverTalkToStrangers · 08/09/2021 09:54

X-post. The additional money cash in hand makes sense. No it's not legal but your DP's choices are complicated.

Original poster
surelynot16 · 08/09/2021 10:01

@NeverTalkToStrangers So he's definitely entitled to holidays though? I could report his boss & he could make out that his contract is 16 pw & the rest overtime but how would he explain not paying him through bank account & why everytime dp has had time off he's made him return the money he does put in his account. He made him return it every week during lockdown although claiming furlough for him.

OP posts:
idontlikealdi · 08/09/2021 10:02

I'm assuming htere is no payslip?

Lou98 · 08/09/2021 10:02

The employer doesn't need to pay sick pay, from day 4 off sick ssp would kick in but would need a note from the doctor for that.

Not giving holidays is illegal, he would be entitled to them based on his contracted hours so he should be entitled to however many days the 16 hours would allow him.

As PP, I also can't work out how he's doing 70-80 hours a week when you've said he's doing Mon-Fri 8-6, he must be working 10-11 hours 7 days a week?

However, if he does do 70/80 hours then your partner has been happy accepting 54/64 hours a week cash in hand - that is also illegal. I'm assuming he won't be paying tax/ni on 16 hours so he's essentially working a 40% tax bracket job but paying nothing - in my personal opinion you can't pick and choose what you're happy to accept as legal and what you're not depending on if it suits you or not

Lou98 · 08/09/2021 10:05

Sorry my last post was meant to be 20-40% tax bracket (depending on hourly rate)

Porridgealert · 08/09/2021 10:05

I think if you're earning 7,500, you don't need to pay NI and aren't liable for tax. However his employer should be recording this so it can be married up by the HMRS if he gets a second job. If, however, his employer says he is paying his NI contribution, your husband can check by ringing the NI dept and asking them, or going online to check.
I think your husband needs to be a little more proactive in sorting out the situation.

hashbrownsandwich · 08/09/2021 10:06

He's only entitled to holiday pay based on the 16 hours.

The cash in hand is entirely illegal so pick your battles.

Comefromaway · 08/09/2021 10:09

Yes, he is definitely entitled to holidays and if he regularly works overtime the holidays should be calculated on the hours he actually works.

A pay slip of some description showing deductions is a legal requirement, he should also have been auto enrolled into a pension.

If he was claiming furlough for your husband then he must be running a PAYE scheme of some sorts. Are there any other employees?

Is the person definitely self employed rather than a limited company? He hasn't made your husband a shareholder or something so as to avoid paying as much tax.

minimecantrollerskate · 08/09/2021 10:12

OP, I do payroll, and if he is working varied hours then his holiday pay would be based on a 52 week average. If he has no contract then that is illegal.

He needs to ask his employer for his PAYE reference, he can say he needs it for HMRC, and say that he needs payslips every week for rent/mortgage purposes.

If these wages are not being declared then your DP is not paying his NIC which credits towards his state pension.

BUT if he has been taking cash in hand, then he has not been paying tax on that money, so as PP says , he cannot have it both ways.

He should be on a PAYE scheme paying tax and NIC on everything that he earns (at the relevant points).

I would contact ACAS for advice

www.acas.org.uk/

Comefromaway · 08/09/2021 10:13

@hashbrownsandwich

He's only entitled to holiday pay based on the 16 hours.

The cash in hand is entirely illegal so pick your battles.

That is not correct. If an employee works a settled pattern of overtime that has to be included in holiday pay calculations and this has been confirmed at various employment tribunals.
Comefromaway · 08/09/2021 10:14

Don't worry too much about accepting the cash in hand though. As an employed person the onus is on the employer to make the deduction before handing over the cash so it will be them that are liable not your husband.

minimecantrollerskate · 08/09/2021 10:14

Just seen your update, he must have a PAYE scheme if he claimed furlough.

If he claimed furlough then your DP should not have been working at that time, and he should have been paid 80% of his wages.

You can report employers to HMRC if they did not handle furlough properly and did not pay the employee.

But as per previous post, it is a can of worms if your DP has been accepting cash in hand.

HeartsAndClubs · 08/09/2021 10:17

So your DP is working 80 hours a week cash in hand?

Sorry but he’s in no way an innocent party here.

Working cash in hand like that is tax evasion and is illegal.

I suspect that your DP is pulling the “I am so grateful” line because he knows he’s getting away with earning a fortune without having to pay tax on it.

The bloke he’s working for might well not be the best, but let’s not pretend that your DP is any better than him.

Original poster
surelynot16 · 08/09/2021 10:17

Does anyone know how to move this to legal? I think I need to know the legal thing to do before dp ends up in more trouble. This whole situation is sickening.

OP posts:
Lou98 · 08/09/2021 10:18

@Comefromaway it's not a settled pattern of overtime though as they're not declaring it. Legally they're only declaring 16 hours so the holiday entitlement is worked out based on that

VerveClique · 08/09/2021 10:19

There are all sorts of things that your DP is entitled to here that he's not getting.

But the likelihood of him getting them in future, let alone getting them retrospectively, is pretty-much nil.

Your DP needs to move on and get a proper job, with a proper employer, who will pay him properly, give him a contract, payslips and holidays etc.

This is a dead duck I'm afraid.