Hi everyone, my first time on here so thanks for your patients and hopefully your responses…
I am an an external TM and am just about to sign for another operator. He is a small waste operator with three drivers one of which says he is self employed. I sense that he is taking the P out of the owner by just taking his gross wage and my question is how do I protect the owner/myself from this driver’s non compliance with HMRC/insurance liabilities. Should he produce his own PL and should he write a letter to the owner stating he is looking after his own responsibilities (IR35 etc). Many thanks.
As long as the vehicles and drivers are operating within the law then surely any HMRC business is nothing to do with you, its a bit like asking the accountant to book a vehicle in for a service
Thanks for your reply, is that opinion or a qualified response?
surely any HMRC business is nothing to do with you
not just as easy as that, if you fails to pay any NI or tax the ywill come to the company for it
If he’s self employed then request invoices on a weekly/monthly basis. It will show he’s an external contractor not an employee.
burnley-si:
surely any HMRC business is nothing to do with you
not just as easy as that, if you fails to pay any NI or tax the ywill come to the company for it
This ^.
Ask to see his HMRC self-cert certificate which will have his full details on, UTR number etc. Make sure you get a copy of it because you’'ll need it to show to HMRC if he doesn’t pay his dues as they’ll be coming to you for the shortfall. If he’s legit then he won’t have any problem with this. If he’s doing the job cash in hand then brace yourself for a load of excuses such as “I can’t remember where I put it” etc which should set alarm bells ringing straight away. I speaketh from experience here. 
Thanks chaps for the good replies. I know it’s the right thing to do even if it’s outside my parameters of responsibility, I wouldn’t have the boss taking a hit down the road, all sorts of indemnity issues could appear later so I will do what is necessary…Thanks again.
pizzaprince:
Thanks chaps for the good replies. I know it’s the right thing to do even if it’s outside my parameters of responsibility, I wouldn’t have the boss taking a hit down the road, all sorts of indemnity issues could appear later so I will do what is necessary…Thanks again.
And just to add, chaversdad’s reply above is also correct. As TM none of these “concerns” are any of your business. Your role is TM not MD. 
Firstly you need to look at the definition of self employed, is he working for your boss on more or less a full time basis or doing days here and there?
Irony being that if his BS self-employed status came via an agency it would, as seems to be the case at the moment, have a blind-eye turned to it by the authorities.
You could probably count on the fingers of one hand how many drivers in the country, that don’t have their own truck and o-licence, would genuinely satisfy then definition of self-employed.
Own Account Driver:
Irony being that if his BS self-employed status came via an agency it would, as seems to be the case at the moment, have a blind-eye turned to it by the authorities.You could probably count on the fingers of one hand how many drivers in the country, that don’t have their own truck and o-licence, would genuinely satisfy then definition of self-employed.
But then agency drivers would have a bit of variation of job placement and also able to state who they will and will not work for.
I have looked into this in some depth, and the criteria for being self employed is quite clear. To be self employed you have to be providing a service and the definition of that is you must at some stage either supply ( in this case ) A vehicle, Fuel, as you would as an OD, or some other service other than Just Labour ( Driver ). If you are driving a vehicle for somebody else purely as a Driver then you cannot legally be classed as self employed. I cannot give you a definitive answer for Agency drivers as they do seem to be a law unto themselves…, But they probably get around the law because they are only employed at any one company for a short period, And there is a small get out clause, that basically says that if you employed for a short period of time ( No official time is stated but it is taken to be weeks rather than months ) then you can work on a self employed basis, but if you do not pay your Tax then take NOTE the employer would be made responsible,.,.,.
As long as the said driver is sorting out his tax etc on time every time I don’t see a problem, yes strictly speaking it may be against the law and I am quite aware that your company will be forking out if he falls behind or fails to pay.
On the other side of the coin if he is a decent reliable sort who is able to manage his own affairs and good at the job think how much money your firm is saving by not having to employ him full time, there are many drivers up and down the country providing a good service that operate in this way without any problems regardless of the high and mighty law!
On the other side of the coin if he is a decent reliable sort who is able to manage his own affairs and good at the job think how much money your firm is saving by not having to employ him full time
but if he is decent/reliable why wouldnt you employ them?
burnley-si:
On the other side of the coin if he is a decent reliable sort who is able to manage his own affairs and good at the job think how much money your firm is saving by not having to employ him full time
but if he is decent/reliable why wouldnt you employ them?
Hi Mate, The simple answer to that one is cost, If you are classed as self employed then you are not entitled to holiday pay, sick pay,( the employer does not have to pay NI contributions this alone saves thousands) plus if they have no work they just lay you off, In fact you would have no rights as an employed Driver would,.,. So the bottom line is the haulier saves money and in this game there is no better motivation than that…
Just as an add on to my last post, I do know of drivers who have been taken on self employed and never paid Tax only to claim at a later date that the employer stopped the tax at source. And as the law stands it is on there side and the employer was made responsible.
yoyo5:
I have looked into this in some depth, and the criteria for being self employed is quite clear. To be self employed you have to be providing a service and the definition of that is you must at some stage either supply ( in this case ) A vehicle, Fuel, as you would as an OD, or some other service other than Just Labour ( Driver ). If you are driving a vehicle for somebody else purely as a Driver then you cannot legally be classed as self employed. I cannot give you a definitive answer for Agency drivers as they do seem to be a law unto themselves…, But they probably get around the law because they are only employed at any one company for a short period, And there is a small get out clause, that basically says that if you employed for a short period of time ( No official time is stated but it is taken to be weeks rather than months ) then you can work on a self employed basis, but if you do not pay your Tax then take NOTE the employer would be made responsible,.,.,.
I would say your wrong about the labour thing, you just cannot work continually for one person.
puntabrava:
yoyo5:
I have looked into this in some depth, and the criteria for being self employed is quite clear. To be self employed you have to be providing a service and the definition of that is you must at some stage either supply ( in this case ) A vehicle, Fuel, as you would as an OD, or some other service other than Just Labour ( Driver ). If you are driving a vehicle for somebody else purely as a Driver then you cannot legally be classed as self employed. I cannot give you a definitive answer for Agency drivers as they do seem to be a law unto themselves…, But they probably get around the law because they are only employed at any one company for a short period, And there is a small get out clause, that basically says that if you employed for a short period of time ( No official time is stated but it is taken to be weeks rather than months ) then you can work on a self employed basis, but if you do not pay your Tax then take NOTE the employer would be made responsible,.,.,.I would say your wrong about the labour thing, you just cannot work continually for one person.
Actually if you re-read my post you will see that’s exactly what I am saying, you cannot legally work as a self employed Driver unless you are providing a service other than just providing Labour…
puntabrava:
yoyo5:
I have looked into this in some depth, and the criteria for being self employed is quite clear. To be self employed you have to be providing a service and the definition of that is you must at some stage either supply ( in this case ) A vehicle, Fuel, as you would as an OD, or some other service other than Just Labour ( Driver ). If you are driving a vehicle for somebody else purely as a Driver then you cannot legally be classed as self employed. I cannot give you a definitive answer for Agency drivers as they do seem to be a law unto themselves…, But they probably get around the law because they are only employed at any one company for a short period, And there is a small get out clause, that basically says that if you employed for a short period of time ( No official time is stated but it is taken to be weeks rather than months ) then you can work on a self employed basis, but if you do not pay your Tax then take NOTE the employer would be made responsible,.,.,.I would say your wrong about the labour thing, you just cannot work continually for one person.
The thing is the law may say you cannot work as a driver for one company full time but in real life if your s/e driver is paying his tax and NI on time the law wont know!
there are a few very simple ways round this law, it can be a plus point for both driver and employer to work in this way though I do agree that you couldn’t trust any numpty to sort their own tax affairs out
Moose:
puntabrava:
yoyo5:
I have looked into this in some depth, and the criteria for being self employed is quite clear. To be self employed you have to be providing a service and the definition of that is you must at some stage either supply ( in this case ) A vehicle, Fuel, as you would as an OD, or some other service other than Just Labour ( Driver ). If you are driving a vehicle for somebody else purely as a Driver then you cannot legally be classed as self employed. I cannot give you a definitive answer for Agency drivers as they do seem to be a law unto themselves…, But they probably get around the law because they are only employed at any one company for a short period, And there is a small get out clause, that basically says that if you employed for a short period of time ( No official time is stated but it is taken to be weeks rather than months ) then you can work on a self employed basis, but if you do not pay your Tax then take NOTE the employer would be made responsible,.,.,.I would say your wrong about the labour thing, you just cannot work continually for one person.
The thing is the law may say you cannot work as a driver for one company full time but in real life if your s/e driver is paying his tax and NI on time the law wont know!
there are a few very simple ways round this law, it can be a plus point for both driver and employer to work in this way though I do agree that you couldn’t trust any numpty to sort their own tax affairs out
Hi Moose I hear what you are saying but the one problem with that is when you do your self assessment, you will have to show an income and an outgoing, and if you are being payed by the same source then it would not stand up to any scrutiny.Now that does not mean that you could not get away with working this scheme and I am sure that you would not be under threat of any type of prosecution, ( not so the employer ) And I do feel that it can work for both parties, I worked like that myself and it worked okay until another driver failed to pay his tax bill, and it all came crashing down,.,.,.,.