Hi all

Some words of legal advice please. My son has been employed, on a self-employed basis, with a major construction company, paid through Exchequer Solutions, with basic 20% deducted and I claim most of his tax back each year. He has worked tirelessly for the same employer 2 months short of 3 years as a carpenter/multi task contractor.

Unfortunately, the company is owned by a father and son duo. The father is a very reasonable but ageing man who mainly stays in the office and the son is a complete upstart, worth millions, knows nothing of the construction industry, but did a business course so feels totally able! This humble description of him is shared by many.

A few weeks ago, the son of the employer and my son had their final fall-out/disagreement and it was to be the hair that broke the camel's back. My son made it clear that he was no longer prepared to work for his company and left there and then.

I have been invoicing for his work 2 weeks at a time, a week in arrears. When I submitted his final invoice, in addition to the final few days work, totally some £1k, we received an extremely vicious and libellous email saying that my son had taken advantage too many times by over-invoicing for hours not worked and if anything, he owed them money!

This is, of course, not true, and even if it was, how can they wait nearly 3 years to come out with this after he's left their employ as such?! I did write to Exchequer solutions for their opinion, seeing as they have deducted a fortnightly fee for their services off his invoice, but they have put their hands in the air and said "I know nothing"!

What are our rights please, if any? Thanks in advance

he is entitled to be paid for the work he has done.

Who does he send the invoices to? the building co directly or are they submitted via agency?

As for nastly email, ignore it, meaningless as it is from one person to another but do make sure that a copy is kept because it may be useful later should the company decide they arent going to pay what is due as it may help undermine their defence.

If invoices sent directly then he sends as letter before action stating exactly how much is owed and why and then give them the usual billing cycle to pay otherwise action will be taken to recover the monies without further warning. If it is the agency then he does exactly the same to them. Letter must be headed "letter before action" so it is perfectly clear as to what the next step will be

Thank you so much ericsbrother. For some reason, I didn't receive a notification that you had replied but thank you anyway. I normally invoice directly to the construction company and they instruct the agency to pay. I shall get an LBA off tomorrow.

you say NORMALLY. check your agreeemnt with the agency to see whether they are just offering a service agreement or whether they are providing you employment. If they are effectively offering you work rather than just doing your taxes then you write to them as well as they are jointly liable or even the people you actually sue and let them do the chasing. Each wil try and say the other is responsible to avoid the one being sued but if the agency is your employer then tough, they will have to recover the monies from the father and son or jut stop moaning.

The attached response to LBA now received. This is all denied by my son and he is now afraid that even his ex-colleagues will not defend him for fear of losing their jobs.

WT response..pdf

Well it looks like from their stance your only option is to take them to court.

The only thing is they firstly state your paid thru exchequer services (I think it was called) and any issues should go thru them.

If that's their defence then they need not say any more or address any other issues.

Basically they Sa your taking the wrong people to court. Their is no need for all the other waffle.

It's quite confusing who is the employer. The initial contract in 2014 is between the named (son) and Exchequer (the Employer). Then in 2015. we registered online with Exchequer for CIS self-employed status, and with HMRC, and received a Unique Tax Reference Number. Exchequer deduct their fee and 20% tax when they receive payment from the construction company. We then claim back tax at the end of each tax year directly with HMRC.

If your son has a CIS registered he should of asked for gross payment status as I know they always deduct too much and the fees are too much for what they actually do.

Your son could of set his own limited company up for not a lot of money and saved a fortune in fees.

Never mind, what's done is done.

I think this needs to go to court.

I think he needs to sue exchequer first and maybe the contractor as a second party.

Others will know realistically who to sue first.

If your son has a CIS registered he should of asked for gross payment status as I know they always deduct too much and the fees are too much for what they actually do.

Your son could of set his own limited company up for not a lot of money and saved a fortune in fees.

Never mind, what's done is done.

 

I think this needs to go to court.

I think he needs to sue exchequer first and maybe the contractor as a second party.

Others will know realistically who to sue first.

Yes, thanks for that, I was aware of that. However, he rather enjoys his little refund every year

I am just finding it so difficult to determine who is responsible in this instance. I think I need to bring Exchequer into the case but when I did ask them initially, they put their hands in the air and said they know nothing!

I dont understand why you say that exchequer are the employer but you invoice the building company and they instruct payment.

Something, to me anyway, doesn't sit right here.

Please check that the construction company and exchequer have no ties to each other, other than being an umbrella company for agency payments.

Look for same directorships etc.

Did your son work for KAVANAGH PROPERTY MANAGEMENT LIMITED or Kavanagh property development limited by any chance?

I dont understand why you say that exchequer are the employer but you invoice the building company and they instruct payment.

Something, to me anyway, doesn't sit right here.

 

Please check that the construction company and exchequer have no ties to each other, other than being an umbrella company for agency payments.

Look for same directorships etc.

That's what it referred to itself as (employer) in the original contract before CIS registered. I believe Exchequer is an umbrella company for agency payments although their website states that Umbrella is when they deduct tax and NI. When you are CIS registered as self-employed, they only deduct tax (and their fee).

dont worry too much about the attack on his workmanship, if that was true they would still owe him the money becuase that is a different matter entirely, he hanst agreed to contrainvoice any remedial work etc and they ahvent raised it before so eyebrows will be raised as to why it has only just been a concern.

What he does need to do is make sure that he sues the right entity so again who is the employer. He will have to dig out every letter he ahs to ensure that they are the ones who actually employed him, if it isnt direct labout then he sues the agencya nd they will have to pay the building co for anything they are unsatisfied with if they want to play that game

He is called a CIS (Construction Industry Scheme) Self-Employed Sub-Contactor. They QUOTE Care about our sub-contractors and ensure they are paid accurately and on time.UNQUOTE

Exchequer Solutions are the Agency who run the payroll and made tax deductions and their own fee deductions. As has been said, there could have been some fees to be avoided by going Limited but that didn't happen. However, the original building contractor has stated that the issue needs to be taken up with the Agency and the Agency have thrown their hands in the air!!! I have just been re-reading Exchequer Solutions webpage but believe I'm not allowed to post their link........

and what does his contract say? yo can read all of the web sites in the world and it wont tell you what he agreed with someone else. Only that is relevant

Sorry for the delay....... the good news is that I have had a very construction 'chat' this afternoon with the HMRC's CIS sction who have confirmed my son's exact employment status as being self-employed but under the employ of a contactor who in himself, is obliged to obey the CIS rules of disciplinary procedure, ie, verbal and written warnings prior to dismissal! So I should like to proceed with a £65 (?) to file a MCOL.

This is now 6 weeks since this happened and my son is not fairing too well and we are now in 2 minds to sue for libel and personal damages resulting from their action.

Time for some very welcome fine legal tuning please

You can sue for the monay owed as pay but you cnat sue for libel or any other damages. Libel has to be in writing in public ( this wasnt a public proclamation) and forpersonal damages- what has he lost? Nothing.

Libel is also heard in the high court so you will need £100k spare change to start off with.

Also you say I and WE when this is your son's problem so properly you are not in a position to do anything. By all means help him but you cant do anything on your own regardless of how well meaning it is. Write things and get him to sign if necessary but be clear there are boundaries and people cant discuss things with you even if they wanted to.

Thank you for that. We shall proceed for an MCOL for monies owed then. I am of course able to obtain my son's signature where required on anything and am not acting alone. I am appointed as his representative on his HMRC online self-assessment account.

Is there anything I need to know before commencing MCOL? I will of course do some homework on this site this evening.

Thanks again

anything about MCOL? Yes, you have to open an account (easy) but one of the ways is to use the Government gateway usernumber adn password. This has to be his, not yours or a random one. Just signing up to MCOL alone allows you to use somehting that is not tied to other data

Herewith POC. Is this suffice?

POC.pdf

no, I wouldnt use that at all.I got only as far as the first 4 llines before making that decision.

The POC should state what money is owed and why, not a rant about disagreements.

SO, something like I was employed by ACo as a contractor on a self employed basis for the dates (from) (to) at an agreed rate of £xx per hour/day. For the period xxth of month 2017 to the yyth month2017 I worked xx hours and was not paid as per the contractual agreement.

I therefore claim £xxx being the monies due under a contractual obligation.

Clean simple to understand what is owed and why and nothing vitriolic or personal. You were warned obout that previously but havent taken it on board, your version will make their defence even more entrenched and annoy the judge who may well decide to chuck the claim out for any very minor procedural error they can find becasue they think that is what it will take to deflate the situation regardless of the true merits of the claim.

This is not personal, it is business. One business owes another business some money, that is all.

Thank you. I apologise. Just so upset with them and a lot else right now. I shall amend and repost.

That's understandable, AA99, but try to keep emotions out of it and stick to factual, it will read better.

HB

Revised POC

POC revised.pdf

you see, simple to understand how much is being claimed and why. It is likely they may well pay up when getting the claim from the courts service. If they do they have to pay the court fees as well of the debt is not cleared. Many defendants try it on by sending a backdated chewue for the original amount to save themselves £75 Dont fall for this, if it happens return the cheque after copying it and the envelpoe