Employee working elsewhere cash-in-hand during work time

[undlou]

Hello,

A bit of the business background: We are a welding workshop based in Essex and have been trading since March 2008. Our business unfortunately went into liquidation in March 2016 but we started up again and the employees remained with us.

Employee background: He originally started working for us in April 2009, he then left in September 2014 and then returned in January 2015. He is late often (1-3 times a week) but only by a couple of minutes or so.

This year we have been informed he's been working for other companies doing labouring jobs cash in hand on weekends. Allegedly this is the reason why he hasn't been able to work overtime on most Saturdays.
Once in January and once in February he called in sick on a Friday and the following Monday (long weekends), we believe he has been working away. Of course we don't have solid proof of this, but the illnesses he claimed to have he showed no signs of having.

I don't really know where to go from here.
If we were to catch him out and get proof of him working elsewhere when he is supposed to be working here, what do we do next? Not only that, but he is breaking the law by working cash in hand.

Helpful advice would be much appreciated.

Thank you.

 

[Newchodge]

He has 2 years' continuous service with you so he would be able to claim unfair dismissal if you were to act wrongly.

Being late by a couple of minutes or so may warrant a brief word to remind him what time he should start, but nothing more.

Working for another organisation over the weekend is, initially, his business, even if he gets cash in hand (which is HMRC's business) unless there is something in his written contract either to say he may not work elsewhere or saying that he must undertake overtime when asked.

The Working Time Directive requires that an employee must not work more than 48 hours per week, averaged over a period of 17 weeks. This includes working in second jobs, So your starting point could be to ask him to confirm how many hours he is working elsewhere, in order that you can comply with this directive. You may want to consider asking all your staff to complete a form detailing whether they have second jobs and how many hours they work in those second jobs.

The same directive requires that an employee must have at least 1 day off in every 7, or 2 in every 14.
So you will need to know which days he works. If it turns out that his second job puts him over these limits you might want to consider reducing his hours or days working with you to comply. I would assume that you pay him more than a labouring wage.

If you can get proof that he was working elsewhere on those Fridays and Mondays, that would be an act of gross misconduct. the problem would be getting the proof. You would need to follow your disciplinary procedure and carry out a thorough investigation, before holding a disciplinary hearing (if there is evidence) and deciding what action to take.

 

[SteveHa]

Cash in hand working and not declaring the income to HMRC is illegal. Do you have proof that he's doing it, and does anything in his contract refer to bringing your company into disrepute?

 

[Newchodge]

Cash in hand working and not declaring the income to HMRC is illegal. Do you have proof that he's doing it, and does anything in his contract refer to bringing your company into disrepute?

The trouble with that approach is that he hasn't officially failed to declare the income to HMRC until he is due to submit a return. Which is probably not until next January.

 

[Chris Ashdown]

The original company went into liquidation according to the post so under two years employment with the new company so let him go

 

[The Byre]

The original company went into liquidation according to the post so under two years employment with the new company so let him go

T.U.P.E.

 

[Chris Ashdown]

Can you tupe a company that's been liquidated, unless you buy it from the liquidator and why would you when you could just by the assets.

Maybe the OP could say what happened

 

[Newchodge]

Error

 

[undlou]

Thank you for all your replies, they have been very very helpful!

Hi Chris, we bought the assets and the branding but that is all I know. My director hopefully can answer that question for me and I will get back to you.

My main concern is the employee calling in sick to work for someone else. He usually puts an act on a few days before he calls in sick, so I know exactly when he is going to pull a sicky. This week he has started to complain about a tooth ache so I am expecting a no show Friday or Monday.

 

[Newchodge]

You stated initially that 'the employees stayed with us'. Did you honour their existing contracts? did they carry over their holidays? dis they just continue to work seamlessly with you or did they spend a period of unemployment at the time of the transfer?

 

[Employment Law Clinic]

My main concern is the employee calling in sick to work for someone else. He usually puts an act on a few days before he calls in sick, so I know exactly when he is going to pull a sicky. This week he has started to complain about a tooth ache so I am expecting a no show Friday or Monday.

You haven't stated on what basis you believe he is working elsewhere, or whether that could be credible information.

But regardless of that, if you have patterns of absences, reasonable grounds for belief of abuse of sick leave, you need to take disciplinary action for gross misconduct; put your evidence that he's going to a day sick on Friday/Monday to him, and take action based on your disciplinary procedures.

You don't need hard evidence, just reasonable grounds of belief, based on a reasonable investigation of available evidence. If you have lots of patterns of "acts" followed by absences, use this in your evidence.


Karl Limpert