[Daniel Bradford]

Evening all,

I had a guy working for me as a subby.  Cash went missing (over £100) a day before we were due to go on holiday for a week and leave him in charge.  We questioned it but not to harshly to which the response was along the lines of I may have taken it inside it will turn up.  It never did turn up and he never returned the cash.   A few weeks go by and still nothing. He then askes to borrow some cash as he was a bit short that week (he has the van and work for a week at a time). We refused for obvious reasons and when he returned the van on the Friday it was £30 short and he said he would drop it round the following day.

We simply docked this from his weeks wages and began to investigate any other irregularities in his work as at this stage we were done.  Turned out he had been using the van for personal use backed up by a tracker (even driving 170 miles on a day he called in sick).  As well as various other more minor incidents that damaged out business reputation  and led to him getting paid for work he shouldn't have.

Once we were satisfied we had enough evidence we sacked him and docked the lost money from his wages.  He is now threating legal action unless we pay in full.  Our stance is he has had the money so has already been paid.  We initially docked the missing money some overpaid wages where he had misreported things and some extra for fuel and wear tear on the van. After his first threat to try and make him go away we made an offer where we would pay him £150 of the £400 odd we had docked from the wages (we took £200 for the van use)  in agreement that the matter was settled.

He as now rejected this and has again threated court action. We have told him we have tracking data, all the system evidence and his own messages about the missing money and taking money without permission.

Would you pay up ,  call his bluff and see him in court or something else?

Thanks,

[NBwcs]

Dont envy you this at all. Im no lawyer but cant help thinking the offer of £150 was a mistake. Good luck with it, so pleased im a one man band.

[Ascjim]

I would just pay him and then never use him again.

[Roy Harding]

As he had your van and using it and equipment,  is he a sub contractor? Or a employee

I was told once you cannot take money from a person wage, however I’m no expert.  Seek legal advice, or pay him and be done..
It’s always upsetting to have this happen, hope you sort it.

[Splash & dash]

I would call his bluff and see him in court , if you can prove theft and using the vehicle while supposedly sick don’t think he has a leg to stand on , I do feel making him an offer was a mistake and using your vehicle isn’t really a sub contractor he should be using his own vehicle and equipment as far as ime aware. But a court won’t be interested in that side of things that would be HMRC . would also be instantly sacked .

[Ched]

One thing to consider is what does the contract you have with him state? Does it specifically prohibit the use of the van for personal use and if it doesn't does it specifically say what the penalties will be?
The other thing to consider is are you 100% sure that the way he worked for you can't be interpreted as employed by HMRC etc? If there is any chance they would think they were employed then you could be in for massive back tax, national insurance, holiday pay not to mention the fine!

If he's a subby then he can work when he wants, so a sicky isn't really a thing is it? From some of the stuff you said I think HMRC would consider him employed!

While you may well be morally right, how much could it cost you if you had to go to court, let alone if you lost! 

Might be best to consult a legal professional to be sure as this could get very expensive!

[matthewprice]

 400£ for problem to go away . Might be cheaper in the long run . A lawyers letter costs anywhere from £130 to £180 .  Never mind a court case even if you win . Granted I can imagine it would stick in your throat paying him anything

[Stoots]

If you are confident in employment law, have been doing things properly with your sub contractor and have all the relevant documentation in place then see him in court.

But since you asked on a window cleaning forum i would suggest your are winging it, making it up as you go along and have no idea what you are doing.....for example you cant generally just dock money from wages and you cant really sack a subby. Could well be that he should have technically been an employee in which case  you may be in trouble.

Id just pay him off whatever he wants and get rid of the problem as if he takes you to court it may uncover all sorts of empoyment law breaches its not worth it.

[p1w1]

As been said, you have already screwed up a bit in docking wages etc., you cant just take money on what you think is fair wear and tear etc. So you only know yourself if you want things to go further. In reality this would probably go to a mediator first before any court action anyway.
If it was me I would just pay him, learn from it and move on, it would cost you more if it went to court and you won anyway, and by the sounds of it you haven't been doing things totally by the book and it could get messy for you.

[Daniel Bradford]

Thanks all for your notes. Not going to get into the weeds of it but would like to clarify that he is 100% a sub contractor. When I say sick day he went home early saying he felt unwell but instead drove my van on a 170 mile round trip. He didn't have permission to do so and also was not insured for anything other than business use. 

I'm not winging it and know what I'm doing just asking for opinions on what everyone would do next. Pay him call his bluff or fight to the death in court.

Yes it will be a hard pill to swallow if I had to pay him. I am also taking it to the police as it is a criminal offence to use a vehicle without permission. Not theft but comes under the same thing (have family in senior positions in the police)

[Smudger]

This is a mine field - like many you will feel that thou shouldn’t pay out - and the likely hood is he may not go that far - it’s a long and expensive process.

Firstly you need to have done everything perfectly by the book and full documentation driving the van while ‘sick’ is not a reason to withhold money.

Personally for £400 I would pay and resolve the matter - you can move on and not have the stress for the next couple of years

Darran

[tonyoliver]

As we all are no legal experts …
You know when the nutter threatens to kill you then walks away never to be seen again
This is about  like that
only the rich do legal action
The poor have no recourse to law 
just wait for the first solicitors letter that will never arrive and deal with it when it happens if ever
Move on and get someone decent and honest to work for you next

[richard connett]

I would pay the money to get rid of the stress. The guys obviously bad news and you need to unhitch yourself from him before he drags you down . Another one to put down as experience . I never entertain  anything to do with subcontracting

[Spruce]

As he had your van and using it and equipment,  is he a sub contractor? Or a employee

I was told once you cannot take money from a person wage, however I’m no expert.  Seek legal advice, or pay him and be done..
It’s always upsetting to have this happen, hope you sort it.

Exactly. If he is using the van, ie. the o/p's equipment, then he is not a sub contractor.

[Smudger]

Not to split hairs that’s not entirely correct

I’ve worked in factories with sub cons- they worked on company machinery just like paye

There are more variables for sub contracts like choosing hours - having other clients - etc

Darran

[dd]

I would question how easy it is for him to take you to court and what it would cost him. Not so easy to go down the small claims route anymore (process is now far more complicated I think). IMO taking you to court is an empty threat.

[Smudger]

I would agree with that and the courts are so far behind it might take 3 years to get in front of a judge but in the meantime you have to deal with fall out - like Facebook sh!t - dealing with letters etc

Ultimately a decent solicitor would give you some idea of his chances

[Stoots]

Thanks all for your notes. Not going to get into the weeds of it but would like to clarify that he is 100% a sub contractor. When I say sick day he went home early saying he felt unwell but instead drove my van on a 170 mile round trip. He didn't have permission to do so and also was not insured for anything other than business use. 

I'm not winging it and know what I'm doing just asking for opinions on what everyone would do next. Pay him call his bluff or fight to the death in court.

Yes it will be a hard pill to swallow if I had to pay him. I am also taking it to the police as it is a criminal offence to use a vehicle without permission. Not theft but comes under the same thing (have family in senior positions in the police)

You might think you know what you are doing but that's probably just as dangerous.

I don't think any of us on here know employment law inside and out some of us may have an idea but it's not the same thing.

I would contact ACAS and ask for some advice they will be able to point you in the right direction.

[Splash & dash]

This article makes interesting reading in part says “ a sub contractor supplies his own tools or hires them in “ so from that I assume he pays  you for the use of your van and equipment? If not then he has to be an employee surely? I know it’s not all black and white bit of a mine field

[matthewprice]

Used to subcontract a guy . Did for years. . When all the regs changed .,my accountant told us  we were not legal anymore . As you did I owned the van he used and all the equipment and water came from me . I sold him the van and some work . Seemed the only thing we could do at the time