Who is responsible for ensuring that tax and NI deductions are paid to HMRC

[gibbo1969]

I work in a pub/hotel and when I started the boss agreed that, and I quote

 

"I will pay you ***** per week and I will cover your tax and NI contributions.

 

The girl who sorted out the wages left and since then I've never had a pay slip or any form of receipt to say what my wages are and what deductions have been made.

 

I am now highly suspicious that he hasn't been paying any tax or NI for me for the last 9 months and I don't know what to do. I would never have taken a "cash in hand" job and fully expected him to keep things above board.

 

In a conversation with him last week about holiday pay he said that he doesn't pay holiday as "no one pays holiday in this trade"

 

I am looking at leaving soon but want to know where I stand on this. If, as I suspect, he's been paying me and not declaring my wages to HMRC, then can it come back on me as I have no record of me ever having received any wages and more importantly no NI contributions being taken for me.

 

Given there are no wage slips, how do I stand legally on claiming the holiday pay I am entitled to because I am certain he will simply claim that I am either self employed or say I am a temporary worker and not entitled to holiday pay. Also if he turns around and says he only paid me a fraction of what he actually did pay, what can I do.

[becky2585]

I would firstly suggest a call to HMRC about whether they've been paid. Legally, he has to provide you with payslips, but unfortunately enforcement is difficult!

 

You could raise a grievance with your employer, but I suspect he won't address it (as he legally should). He has to pay a minimum of 28 days holiday per year for a full time employee, so an unlawful deduction from wages claim in the employment tribunal may unfortunately be your only option!

[honeybee13]

Hello there.

 

I agree with Becky about telling HMRC and will try to find the number for you if you need it. It's not your fault the money hasn't been paid across and I don't think you should worry about that part.

 

Do you have any paperwork at all from this guy? We've seen this type of problem before and it seems to me that it's not uncommon for the catering industry.

 

My best, HB

[gibbo1969]

Hello there.

 

I agree with Becky about telling HMRC and will try to find the number for you if you need it. It's not your fault the money hasn't been paid across and I don't think you should worry about that part.

 

Do you have any paperwork at all from this guy? We've seen this type of problem before and it seems to me that it's not uncommon for the catering industry.

 

My best, HB

 

 

I have no paperwork whatsoever.

[honeybee13]

I have no paperwork whatsoever.

 

So no letter offering you the job and you never had a single payslip? And you've been paid cash, I think you said?

 

HB

[lbruk]

If you have been payed cash and no supporting pay slips, then I would assume that you have been paid off the books and your employer has not declared that you work for them, and therefore is not paying tax and NI for the employer or the employee.

 

I would speak to HMRC, but be prepared for a tax and NI bill!

[Gbarbm]

If you contact HMRC and they decide to undertake a compliance intervention, if the employer is at fault for not paying over tax and NI they will collect it from the employer

The employer is legally responsible to collect and remit these deductions.

HMRC will maintain the contributory principle by ensuring that the primary (employees) NI are deemed to have been paid so that there is no detriment to the employee in the future when claiming benefits or state pension

[gibbo1969]

If you have been payed cash and no supporting pay slips, then I would assume that you have been paid off the books and your employer has not declared that you work for them, and therefore is not paying tax and NI for the employer or the employee.

 

I would speak to HMRC, but be prepared for a tax and NI bill!

 

Just a thought.

 

I have been put down as the company secretary, and have a letter from my boss as a reference to my landlord stating my salary and the fact its a permanent position.

 

Would this go in my favour in proving that I have been employed as opposed to working on a self employed basis ?

[Gbarbm]

Just so you are aware;

 

Since 6 April 2008, private limited companies have not been obliged to appoint a company secretary unless the company's articles contain a reference to the company having a secretary. However, existing private limited companies may retain a company secretary if they wish and newly established companies can opt to appoint one.

If you're running a public limited company you must by law have a company secretary.

The company secretary usually acts as the chief administrative officer of the company, leaving the directors free to concentrate on running the business.

The company secretary doesn't have to be a director but they do share some of the directors' legal responsibilities. However, ultimate responsibility for ensuring the company is properly administered remains with the directors.

I take it the company is limited; that being the case, whilst not a director you would be classed as an office holder and would therefore be an employee.

Use the ESI (employment status indicator) on HMRC website - just put esi in search box.

You can contact HMRC for a status ruling; the status inspector may need to interview the employer, you and other workers to establish the position