Gathering Evidence for the Defence!
Discussion
Hi all...ok, this isn't what it sounds like in the title! I'm not defending myself (or a 'friend') from Dangerous Driving etc. I'm actually the subject of a National Minimum Wage investigation by HMRC.
Essentially, they've interviewed a disgruntled ex-employee who's claiming that we under paid them for sleeper shifts. It's a long story and I won't bore you with the details...but essentially I'm looking for a way to take some impartial interviews of all the other staff members who support my side of things and disagree with their ex-colleague.
Because of the way HMRC approach these things (heavy handed and underhanded!) I want to get the interviews recorded on paper so I can submit them as part of an evidence pack to try and avoid HMRC going forward with the investigation, and in case they don't and we get to a tribunal. And to avoid the loss of evidence in case my staff members leave etc in the mean time.
I don't want to carry out the interviews myself, as they need to hold the weight of impartiality.
So my question is, who can you go to to carry out interviews, in my absence, and which a court will accept as impartial and good evidence?
Thanks all,
J.
Essentially, they've interviewed a disgruntled ex-employee who's claiming that we under paid them for sleeper shifts. It's a long story and I won't bore you with the details...but essentially I'm looking for a way to take some impartial interviews of all the other staff members who support my side of things and disagree with their ex-colleague.
Because of the way HMRC approach these things (heavy handed and underhanded!) I want to get the interviews recorded on paper so I can submit them as part of an evidence pack to try and avoid HMRC going forward with the investigation, and in case they don't and we get to a tribunal. And to avoid the loss of evidence in case my staff members leave etc in the mean time.
I don't want to carry out the interviews myself, as they need to hold the weight of impartiality.
So my question is, who can you go to to carry out interviews, in my absence, and which a court will accept as impartial and good evidence?
Thanks all,
J.
I'd go get some professional advice from a lawyer, you're either paying the correct wage and complying with the rules or you're not and they will be in a position to advise you on the best course of action.
No point in making your own rules of evidence up as you could just be wasting your time.
No point in making your own rules of evidence up as you could just be wasting your time.
Thanks for the replies.
As always, with HMRC, its not that simple. It's to do with sleeper shifts (which mean the staff member is essentially on call but sleeping on the premises while not called). We pay them a fixed fee for the hours they're sleeping because they're on call. The contention is that HMRC are saying that we should be paying them NMW for each hour, because they're on site and therefore, they're working. We're saying that we're not insisting that they stay on site...they're welcome to go home and come back if called...and they choose to sleep on site for their own convenience. And at their request, we provided a place for them to sleep. So we don't think they are working, and we should not have to pay them for the hours that they're asleep/not called out.
The evidence I need to gather is statements from the staff to say that the above is correct, and it was done for their convenience and that they're not constrained/obliged to stay on the premises.
Edited to say, we're already taking advice at a legal and HR level. Their advice was to get statements from our staff members to counter the one which HMRC got.
As always, with HMRC, its not that simple. It's to do with sleeper shifts (which mean the staff member is essentially on call but sleeping on the premises while not called). We pay them a fixed fee for the hours they're sleeping because they're on call. The contention is that HMRC are saying that we should be paying them NMW for each hour, because they're on site and therefore, they're working. We're saying that we're not insisting that they stay on site...they're welcome to go home and come back if called...and they choose to sleep on site for their own convenience. And at their request, we provided a place for them to sleep. So we don't think they are working, and we should not have to pay them for the hours that they're asleep/not called out.
The evidence I need to gather is statements from the staff to say that the above is correct, and it was done for their convenience and that they're not constrained/obliged to stay on the premises.
Edited to say, we're already taking advice at a legal and HR level. Their advice was to get statements from our staff members to counter the one which HMRC got.
Edited by jezzaaa on Saturday 27th January 13:12
I assume that’s a criminal investigation. If so then see part 16. https://www.justice.gov.uk/courts/procedure-rules/...
Get the statements reviewed by a solicitor before sending.
Get the statements reviewed by a solicitor before sending.
agtlaw said:
I assume that’s a criminal investigation. If so then see part 16. https://www.justice.gov.uk/courts/procedure-rules/...
Get the statements reviewed by a solicitor before sending.
Hey buddy - hope you're well Get the statements reviewed by a solicitor before sending.
No, it's not criminal. They have to demonstrate wilful intent/fraudulence for that. This is just civil stuff.
At the moment, it's just us talking to a guy at HMRC who keeps sending us letters and phoning us, asking all sorts of questions in order to get us to hang ourselves! He's failing as we're rigorously refusing to answer anything by phone and insisting everything is in writing!! And they did an interview with an ex-member of staff...we don't know for sure who it was, but have our suspicions...
Edited by jezzaaa on Saturday 27th January 13:21
I'd also like to add, I promise we're not trying to screw our employees! We do value them, and we made the arrangements for sleeping because they asked for them. If I'd known then what I know now, I'd have refused due to the risk of what's going on now! But, hopefully the truth will out and HMRC will back off.
OP - the following link may help (apologies if you’e already aware of it).
https://www.gov.uk/guidance/tell-hmrc-if-youve-und...
NMW for sleep-ins is a p-take IMO. You’re literally being paid for mainly sleeping.
https://www.gov.uk/guidance/tell-hmrc-if-youve-und...
NMW for sleep-ins is a p-take IMO. You’re literally being paid for mainly sleeping.
Countdown said:
OP - the following link may help (apologies if you’e already aware of it).
https://www.gov.uk/guidance/tell-hmrc-if-youve-und...
NMW for sleep-ins is a p-take IMO. You’re literally being paid for mainly sleeping.
Thanks, I'll have a look. We've read so much stuff already, as you can imagine!https://www.gov.uk/guidance/tell-hmrc-if-youve-und...
NMW for sleep-ins is a p-take IMO. You’re literally being paid for mainly sleeping.
Well indeed, the way they're trying to implement it is ridiculous, and counter productive to the other staff members. And the trouble is, if we lose, that business is going to probably go under because the potential liability would be £75k+. So 14 good people will be on the unemployment benefit, and all our elderly residents will have to be rehoused. Good one HMRC...public interest etc
Edited by jezzaaa on Saturday 27th January 14:09
jezzaaa said:
Thanks for the replies.
As always, with HMRC, its not that simple. It's to do with sleeper shifts (which mean the staff member is essentially on call but sleeping on the premises while not called). We pay them a fixed fee for the hours they're sleeping because they're on call. The contention is that HMRC are saying that we should be paying them NMW for each hour, because they're on site and therefore, they're working. We're saying that we're not insisting that they stay on site...they're welcome to go home and come back if called...and they choose to sleep on site for their own convenience. And at their request, we provided a place for them to sleep. So we don't think they are working, and we should not have to pay them for the hours that they're asleep/not called out.
The evidence I need to gather is statements from the staff to say that the above is correct, and it was done for their convenience and that they're not constrained/obliged to stay on the premises.
Edited to say, we're already taking advice at a legal and HR level. Their advice was to get statements from our staff members to counter the one which HMRC got.
I had a difference of opinion with a previous boss regards paying for the support team (of which I was a member) when they were on call. His position was that if you were called out you'd get time and a half, or double time at weekends, but if you weren't called out you got nothing ("because you aren't working")As always, with HMRC, its not that simple. It's to do with sleeper shifts (which mean the staff member is essentially on call but sleeping on the premises while not called). We pay them a fixed fee for the hours they're sleeping because they're on call. The contention is that HMRC are saying that we should be paying them NMW for each hour, because they're on site and therefore, they're working. We're saying that we're not insisting that they stay on site...they're welcome to go home and come back if called...and they choose to sleep on site for their own convenience. And at their request, we provided a place for them to sleep. So we don't think they are working, and we should not have to pay them for the hours that they're asleep/not called out.
The evidence I need to gather is statements from the staff to say that the above is correct, and it was done for their convenience and that they're not constrained/obliged to stay on the premises.
Edited to say, we're already taking advice at a legal and HR level. Their advice was to get statements from our staff members to counter the one which HMRC got.
Edited by jezzaaa on Saturday 27th January 13:12
My feelings were that if you were on call your social life was impacted regardless of whether you were called out or not. You couldn't travel too far away from the office, you couldn't drink (you might need to drive to a customer site), etc. Being on call meant your evenings & weekends were comprimised regardless.
In that context I could understand why HMRC think you should be paying NMW to someone who is expected to start work at a moments notice.
IANAL though, so shrug.
rlw said:
Do you not have any insurance cover for things like this? Employing 14 people and no cover seems a bit rash to me. If you do, the insurer will handle the whole process for you.
Yes we have PL/PI insurance of course, but it doesn't cover wage underpayments, for what they would no doubt regard as our ignorance. I'm not sure that such cover exists...and if it did, I had no reason to believe that we'd need it. And we also have a subscription to an HR consultancy service who will represent us at court if necessary, but again won't pay the wages if we lose.Edited by jezzaaa on Saturday 27th January 14:40
Durzel said:
I had a difference of opinion with a previous boss regards paying for the support team (of which I was a member) when they were on call. His position was that if you were called out you'd get time and a half, or double time at weekends, but if you weren't called out you got nothing ("because you aren't working")
My feelings were that if you were on call your social life was impacted regardless of whether you were called out or not. You couldn't travel too far away from the office, you couldn't drink (you might need to drive to a customer site), etc. Being on call meant your evenings & weekends were comprimised regardless.
In that context I could understand why HMRC think you should be paying NMW to someone who is expected to start work at a moments notice.
IANAL though, so shrug.
I'd agree totally with you. Being on call means you can't commit the time to do anything else, accepting that you might be called out. People should be compensated, which is why we pay them an on call fixed fee, and then they get their hourly rate if called out. My feelings were that if you were on call your social life was impacted regardless of whether you were called out or not. You couldn't travel too far away from the office, you couldn't drink (you might need to drive to a customer site), etc. Being on call meant your evenings & weekends were comprimised regardless.
In that context I could understand why HMRC think you should be paying NMW to someone who is expected to start work at a moments notice.
IANAL though, so shrug.
Our place pays an on call standby. A set daily rate just for being on call and then, 1.5, 2 or 3 x hourly rate if we get called out depending on time of day/year.
OP you say you pay them a set daily rate for on call is that right? The whole sleeping on site is also optional?
If the on call requires them to stay on site I would imagine you would have to pay them there whole hourly rate per hour they are on site. You mention optional so maybe as you have mentioned is what the HMRC need to understand. If on call and no oncall rate was paid then it might get tricky.
OP you say you pay them a set daily rate for on call is that right? The whole sleeping on site is also optional?
If the on call requires them to stay on site I would imagine you would have to pay them there whole hourly rate per hour they are on site. You mention optional so maybe as you have mentioned is what the HMRC need to understand. If on call and no oncall rate was paid then it might get tricky.
Durzel said:
I had a difference of opinion with a previous boss regards paying for the support team (of which I was a member) when they were on call. His position was that if you were called out you'd get time and a half, or double time at weekends, but if you weren't called out you got nothing ("because you aren't working")
My feelings were that if you were on call your social life was impacted regardless of whether you were called out or not. You couldn't travel too far away from the office, you couldn't drink (you might need to drive to a customer site), etc. Being on call meant your evenings & weekends were comprimised regardless.
In that context I could understand why HMRC think you should be paying NMW to someone who is expected to start work at a moments notice.
IANAL though, so shrug.
I don’t agree that you shouldn’t be paid for it, there should be an on-call allowance which is fair recompense for the inconvenience and then proper pay for when you’re actually working. My feelings were that if you were on call your social life was impacted regardless of whether you were called out or not. You couldn't travel too far away from the office, you couldn't drink (you might need to drive to a customer site), etc. Being on call meant your evenings & weekends were comprimised regardless.
In that context I could understand why HMRC think you should be paying NMW to someone who is expected to start work at a moments notice.
IANAL though, so shrug.
I assume the OP has shot himself in the foot with providing sleeping arrangements...
Mikeyjae said:
Our place pays an on call standby. A set daily rate just for being on call and then, 1.5, 2 or 3 x hourly rate if we get called out depending on time of day/year.
OP you say you pay them a set daily rate for on call is that right? The whole sleeping on site is also optional?
If the on call requires them to stay on site I would imagine you would have to pay them there whole hourly rate per hour they are on site. You mention optional so maybe as you have mentioned is what the HMRC need to understand. If on call and no oncall rate was paid then it might get tricky.
Hi Mikey,OP you say you pay them a set daily rate for on call is that right? The whole sleeping on site is also optional?
If the on call requires them to stay on site I would imagine you would have to pay them there whole hourly rate per hour they are on site. You mention optional so maybe as you have mentioned is what the HMRC need to understand. If on call and no oncall rate was paid then it might get tricky.
Yes indeed, on both points. The staff are not required to stay on site...but choose to do so for their own reasons. We provided them with a bedroom because they requested it.
HMRC understand nothing except hard evidence which overwhelms their own...which brings me back to the original question; who can I get to take statements from our employees which would be regarded as impartial and carry weight at court? Solicitors would do it I guess, but there must be a cheaper option. I did think about ACAS, but they won't do things on the employers instructions sadly.
carreauchompeur said:
I don’t agree that you shouldn’t be paid for it, there should be an on-call allowance which is fair recompense for the inconvenience and then proper pay for when you’re actually working.
I assume the OP has shot himself in the foot with providing sleeping arrangements...
Hi ya - well this is one of the problems...hindsight and all that. Interestingly, HMRC provided us with the worst most ambiguous flow chart I've ever seen, which is supposed to help you decide whether or not the workers should have been paid NMW for the hours they slept. Strangely, the only way to get to the 'The workers are probably on-call and not due NMW' box is to say 'Yes' to the box above it saying 'You provide your workers with suitable sleeping arrangements'. They really are sI assume the OP has shot himself in the foot with providing sleeping arrangements...
t.Is the fixed fee equivalent to the NMW across the hours required on call?
I.e. 6 hours on call would be a minimum of 6xNMW?
If the employee is onsite and I assume covered by your employee liability insurance then they are working?
If they are onsite = working, offsite = on call.
Anything explicit in the employee contracts regarding ‘sleeper shifts’?
What happens if they have no call out; what is the pay?
What happens if they have a call out; what is the pay?
I.e. 6 hours on call would be a minimum of 6xNMW?
If the employee is onsite and I assume covered by your employee liability insurance then they are working?
If they are onsite = working, offsite = on call.
Anything explicit in the employee contracts regarding ‘sleeper shifts’?
What happens if they have no call out; what is the pay?
What happens if they have a call out; what is the pay?
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