Cleaning Company Staff Issues - Bona-fide Sub Contractor?

[vikkiifyable]

Hello all,

I currently have a cleaning company that i run as a sole trader. Due to some staff issues (leaving/going AWOL) we have temporarily taken on another sole trader (who also has a cleaning company) to cover all of the cleans that we currently need filled, whilst we sort out some other aspects of the business and go through the process of recruiting and training up a new person.
It's only on a temp basis but she is using her insurance to cover the cleans her and her staff do for us.

What i wanted to ask was, is this at all even 'allowed' and what would it come under.

We're in the process of getting a contract sorted between us but I wasn't sure what she would be 'classed' as. My guess is a bona-fide contractor given that (at our request and hers) she's using her own insurance, but she's also taking direction from us about which jobs/what times etc as these were all pre-arranged with each customer when they originally came on board with us.

We also take care of the invoicing, and pay her monthly, although she sorts out her own tax, NI etc.

If all the above is ok, we would also like to include a restrictive covenant regarding advertising her own business to our clients and 'poaching' our customers. So i wondered if anybody had any ideas of a template or such i could get hold of purely for the restrictive covenant part.

Thanks in advance for your help on this

 

[StevensOnln1]

If she is sending her employees to do the work then she is definitely a subcontractor.

 

[Newchodge]

If she has already started it is a bit late to think about a restrictive covenant. Why would she accept it now?

 

[vikkiifyable]

If she has already started it is a bit late to think about a restrictive covenant. Why would she accept it now?

She hasn't started yet - she is going to be starting once we get the contract in place.

 

[vikkiifyable]

If she is sending her employees to do the work then she is definitely a subcontractor.

She is also going to be doing some of the work herself.

 

[StevensOnln1]

She is also going to be doing some of the work herself.

But as she can choose to send her employees herself she is clearly a subcontractor. From what you have described there is no way that she could be considered an employee.

 

[LawHound]

You need a sub contractor agreement which prevents her or her staff (who also signs up to an agreement which mirrors the main points in the main sub contractors agreement) poaching, working directly for your clients and other areas to protect your business.

It's a common enough B2B arrangement and one which can work well providing you have a good agreement in place to ensure everyone knows what is expected of them. This is something we can help you with as can others on the forum. We write about 4 a week currently for our clients.

 

[Simply Business]

Hi @vikkiifyable It's a common question and one that can be quite tricky! To give some context (and apologies if you're already aware about all of this), there are two types of sub-contractor, bona-fide as you mentioned and labour-only.

Bona-fide subcontractors are not required to be covered under your employers' liability, but labour-only most certainly are.

Using an external company who work under their own company name, under their own instruction and with their own tools and materials are indicators of bona-fide sub-contractors. They'll be responsible for making sure workers are at the location etc, and can send any given employee of theirs to the job.

Labour-only subcontractors will legally need to be covered under your EL insurance, regardless of whether they have public liability for themselves. They will usually be sole-traders that you hire, and will work under your instruction, and under your company name.

It can be tricky to distinguish sometimes, but be wary of the common inclination to assume they're bona-fide to avoid getting EL insurance - the fines are incredibly hefty if you're caught without the correct insurance for this!

Hope that helps a little?