Looking for advice please

[Bomber99]

Thank you ula

so the son in law (sil) worked for the recovery firm and during his daily work he would go around different compounds collecting cars and delivering elsewhere. Some of these vehicles had been repossessed.
on a couple of occasions he turned at a compound and gave them his name and the company he worked for. They refused him to pick the vehicles up and before being allowed would need paperwork with his name on it.

So he would call up hie boss and explain the situation and within a short period of time he would be sent documentation sent to him through watts app with his name on it and told to just put it in a email and send it to the compound. Once this was done the cars would be released.

since he has been having the problems with his boss he has gone over all the messages and came across some of these documents he had been sending him.

know the point is the boss has been putting the sil name on documents belonging to other firms which makes it look like my sil works for them and one one of them makes it look like he is a enforcement officer who has the right to repossess a vehicle or collect funds under a credit agreement.

so over this weekend the sil has challenged the director about this matter and he said he would deal with it next week

When the sil mentioned there may be a breach of data as one of the documents continue the name and address of the person who car was repossessed his ex boss mood went into overdrive calling him a lier amongst other things.

His ex boss then demand the sil destroy all the documents he had on watts app I must stress that none of these documents carry any information regards the company who my sil worked for.
He has told the sil if he does not destroy the documents he will be taking him to the high court under ex parte and seeking cost.

The sil doesn’t want to destroy anything at the moment until he has spoken to the companies who my sil name has been put on there documents and until he has spoken to the ICO

So I suppose the question is has my sil done any wrong
an his boss make him destroy what we feel is evidence
can he take sil to the high court and recover his costs

tank you for reading this and I have tried to explain as best as possible but please ask any questions

[Retromau5]

By the looks of things, unfortunately you will never get a P45 or payslips from them. If he's not showing as been employed since April by the HMRC, then it looks like he was never employed by them. Not sure where this leaves your son-in-law legally. Obvious option would be to report it, but this might leave him open to questions for himself.

GDPR is pretty straight forward to understand, it's built to respect human rights and relies on common sense, if it feels wrong, it usually is wrong. For data purposes, the owner is known as the 'controller'. In employment terms as an employee you SIL would be a 'processor'. The processor must only use the documents for the purpose they have been set out to be used for, and if they are used for anything other than this (including retaining) the could be in breach of GDPR and their employment contract.

But as it appears that your SIL is NOT an employee, then this does not apply to him, and it is the business owner who is at fault for sending (using) the data Subjects information without their consent.

That's how I see it, but I'd speak the the ICO about it to be certain.

[Bomber99]

Thank you RETROMAU5
If you don’t mind me asking, what are your thoughts on his bosses threat to take this to court
Do you think this is just a scare mongering tactic as the way I see it he would have a lot of explains how my SIL name got on the documents in the first place

[efpom]

https://www.gov.uk/guidance/understa...l-working-ir35

[Retromau5]

If there has been a GDPR breach in the company then the employer is supposed to to notify the ICO with 72 hours (again, check with the ICO), and explain what has happened and how they dealing with it. As for going to court, remember that he hasn't even got an employment contract, so I think it's highly unlikely that he's going to take it to court when he'll potentially highlighting multiple offences he's committed in the process.

[Bomber99]

Thanks again for your advice it really is appreciated.

on one of the documents my SIL name was put on to reads

To Whom it may concern
please accept this letter as confirmation that we have instructed (SIL Name) of (company’s name and address) to repossess the above detailed vehicle and/or collect funds owing under the credit agreement in lieu of repossession.

The letter heading for the document is from the Motor finance company giving the company that supposedly employed my SIL authority to carry out the order.

my SIL has no authority or trained as a enforcement officer.
his ex boss has told him today that he has spoken to the finance company this morning and they are preparing to take the SIL to court to make him destroy this particular document.

At the moment the SIL doesn’t really want to destroy the document as it is evidence that fraud nave have been committed.
But also doesn’t want to end up in court for not destroying it.

The ex boss also said these are only template letters and by putting someone’s name on it doesn’t mean he has broken any laws.

Many thanks for your help

[Retromau5]

Your son-in-law should really speak to the ICO, the are the regulator body for GDPR and will give him the best advice for that situation. He can speak to them anonymously and they won't judge him

[des8]

taking your sil to court to obtain an injunction to have the document destroyed is one sure way of making sure it becomes public

[Bomber99]

Hi all

so SIL contacted HMRC today and explained the situation.
They explained if he doesn’t get the P45 then he will be responsible for paying the tax and national insurance on the wages he has received so far.

We thought this would be the case as it stands.

His ex boss brought SIL tools and other personal belongings back to him yesterday morning.

They had a conversation about all the issues they were having.

The SIL recorded the conversation on his phone.

The ex boss spent about 20 mins discussing the ins and outs of the data breach and adding SIL names on to documents, and about 2mins on the tax situation.
He was adamant he/company had done nothing wrong regarding the documents, and if the SIL wanted to carry on with this, all he would do is cause him more headaches because he would have to fill out a load of paperwork and wright out a load of reports.

On this matter the SIL has contacted the ICO and they said, he should put in writing his concerns to his ex employer and wait their response before making a complaint with them.

This had already been done through email and are waiting on the ex bosses response.

As for the tax position the ex boss said he wouldn’t discuss that as, his company had insurance to cover this kind of situation.

He then went on to say, he had contacted his legal team and informed them, (his words) We have this issue, (obviously with SIL) we have had this response, (wouldn’t elaborate on the response) deal with it.
Then the ex boss told the SIL the legal team would be writing to him today. When the SIL asked the ex boss if they would be dealing with the p45 and tax situation in this letter his response was, however they write it. He said he was leaving it all up to his legal team to deal with it.

That left the SIL feeling like he himself had done something wrong which is certainly not the case or could be the ex boss is trying to get out of paying the tax and national insurance, but I suppose we will have to wait and see what is put in the letter.

All in all the nightmare continues

Will update when he receives the letter and his reply to the email.

[Bomber99]

Forgot to mention it was also brought up about who was paying wages.
The SIL ha had 6 payments go into his account from the directors wife’s personal bank account.
The ex boss said that shouldn’t be happening but explained at times she pays money into her personal account from the business account and then pays wages that way.

The SIL has asked the ex boss about this before but basically had the same response and told it’s nothing illegal.

The SIL has always declared these wages with the tax credit office as soon as he has received them.

So I am intrigued to know if these payments can be declared as wages in the ex bosses accounts

Could the directors wife prove these payments were for wages for an employee of the company.

Would the company have any difficulties in proving the monies she transferred into her account were for wage's.

He has had 2 wage payments from one of the other companies that the director own’s, so I presume that is ok

[ULA]

Post #24 - thank you for updating on the recent interaction your SiL had had with ex-boss and yes it will be a case of waiting to see what the "legal team" respond back to him with.

Post #25 I think this is more of an issue for the ex-boss and how he runs his accounts and reconciles these with HMRC.
Ultimately your SiL just needs to make sure all is in order in respect of his tax and NI situation.

[Bomber99]

Hi ULA
thank you for your response.

I have been digging around after EFPOM pointed me in the direction of a web site in post 19

It could be a way out for the ex boss regarding the tax situation, but after digging around have found this information regarding Off Payroll Working: (Sections 61N and 61NA Chapter 10, Part 2 ITEPA 2003

Regulations 14 and 14A Social Security Contributions (Intermediaries) Regulations 2000

Once the client has determined whether the off-payroll working rules apply to an engagement, it should communicate that decision in the form of a Status Determination Statement (‘SDS’) - (see ESM10013 for what constitutes a valid SDS) to the worker and any third party it contracts with. There is an incentive for the client to pass the SDS to the worker and any third party it contracts with because failure to pass on the SDS will result in the client being responsible for the deduction of tax and NICs, and paying these, along with any apprenticeship levy, to HMRC if due. The legislation does not specify the format or method by which the SDS should be issued, but the client should ensure that the worker is knowingly able to receive or access the SDS. For example, this could be an email, a letter or provided through an online portal.)

So if I am reading it right the ex boss if employing my SIL under the Off Payroll working should of given him a Status Determination Statement (SDS) and as the ex boss never would his ex boss then be liable for the tax and national insurance my SIL should pay.

I must stress the SIL was not or wasn’t told he was on a contract like this as far as he is aware and we are just covering all angles on this

[ULA]

So some basis principles:

1. Who controlled what work your SiL did?
2. Who provided all the equipment for your SiL to carry out the work?
3. Could your SiL substitute someone else to do the job if he was unavailable?
4. Who decided when, where and how the work was done?

If the answers to all of the above was his ex-boss then highly unlikely he could be considered for off-payroll working.

[Bomber99]

Hi ULA

In reply to your questions.

(1) Ex boss and his Wife

(2) Ex boss

(3) No

(4) Ex boss and his wife

The ex boss was in overall charge but his wife would send SIL out on jobs collecting and delivering vehicles.

The SIL mentioned another incident that happened whilst working for the company.

He was told by the company to collect two cars from separate compounds. He was told to take a pickup truck + a trailer to do this job. This was a normal practice at the company.
After he had pick up the vehicles and on his way to deliver them his was stopped by VOSA and the vehicles were weighed.
He was found to be overweight by about three quarters of a ton and given a £300 fine. The ironic thing is this job was a contract for the police

He contacted his boss who agreed to pay the fine after receiving all the paperwork.


Two weeks ago he received a notice telling him a further £150 had been added to the fine because of none payment.
This has now been sorted by ourselves.

I know the driver carries the responsibility for the weight he is carrying, but surely the company must hold some responsibility for this.
wouldn’t this come under health and safety act, as I would of thought the company should have done some research into the weight of the cars being collected and the safe working load of the vehicle and trailer used to collect them.

There was no weighbridge where the cars were collected from.

[Retromau5]

If a driver takes a vehicle on a public road, then they are responsible for ensuring it is roadworthy. This would mean that at work a driver should always complete a checklist of a vehicle before they use it, and if you're carrying a load you should always understand it. If it isn't as is expected, you don't drive it. Any negative treatment from an employer as a result of this, would be unfair. The employer has a duty of care to the employee to provide a safe working environment, and they have obligations towards health and safety too. So the responsibility is shared.

People seem to think that anyone with a driving licence can drive for a living, but the reality of it is that there's a lot of knowledge needed to be a good driver.