Help desperately wanted!

[Kellie Underwood]

I am a self employed sole trader nail technician and I work from my house. I took on a self employed trainee from 19th April and we had a signed service agreement.

The service agreement stated that we had to give each other 3 months notice to terminate the agreement unless she breaches the terms of the agreement I can terminate the agreement with immediate effect.

We had a gentlemans agreement before she came to work at my business I laid out what I expected and how I wanted the business to move forward without this meeting going well I would never have taken her on.

After the agreement was signed she has gone back on things she agreed to in the gentlemans agreement and I have had many customer complaints regarding her attitude her messing clients around with appointments and many communication issues.

In the gentlemans agreement that we had she asked me my plan for the business I explained I would like to open a salon in 2019 away from my home. I advised her that in the agreement I would put a minimum hours for her minimal progression and to see a return in my investment however in the gentlemans agreement I asked if she was happy to do more hours if the work was there as i would need a minimum of part time hours from her to open the salon as planned in 2019. as i provided all working materials, paid for her qualifications and advertising, and gave her my time to mentor her. Which she agreed to but after she signed the agreement she took a 10 month employed contract she refused to do more hours when she was fully booked turning away new clients. so when it would come to the end of her employed contract in march 2019, she would only have had 10 hours work of clients a week which would not cover her bills etc and she would have to get another full time employed job and I would be in the same position I am in now where I wouldn't have the funds to cover opening a salon.

This week -

We started really disagreeing this Tuesday, It finally came to a head when I check our schedules and found that she was booking a lot of time off in the diary without notifying me (which wasn't in the contract that she had to but a bit of courtesy would have been appreciated) and explained i was aware she was self employed however she had signed an agreement that said she would work a minimum of 10 hours a week so when would she be making these hours up. After I asked her this in writing, I realised this was unfair and acknowledged that and said that I retracted this question and apologised. I then changed what I wanted to say, by asking her politely to communicate with me more regarding taking leave for the benefit of the business. She replied saying that as she's self employed and this was not in the agreement we both signed she would do what she liked when she liked regarding time off, and would only work the minimum of 10 hours a week.She then later on Tuesday told me that she had a chest infection during this disagreement and she would be cancelling her clients for the next 2 weeks. On wednesday morning I checked our diary and noticed that she had not cancelled any clients from this saturday onwards so I asked her if she needed help contacting these clients as she was unwell. She responded with that she was not cancelling any more clients as she didn't see it was necessary. Again no communication with wether she was going to fulfil the appointments of the clients she had booked in.

Later on Tuesday she sends me a very detailed email telling me our agreement which she was more than happy to sign and she never questioned before, is not lawful. She blackmailed me by saying she was refusing to come back to the salon and fulfil the appointments she had booked in, until I met her face to face. However I felt intimidated and as though that was not an option.

I chose to terminate her contract with immediate effect for a breach of contract. With the client complaints, how difficult she was to communicate with and how she had spoken to me I did not want her back in my home. I then did not receive a reply until Wednesday morning when she asked me when she could pick up her certificates for her qualifications. I explained that she can have her certificates if she pays me what they cost. Unfortunately this is a grey area in our agreement as it says if she decided to leave she must pay me back but it doesn't say either way wether she would be entitled to them if I terminate the contract.

She then asked me what terms she had breached and honestly, I don't have an answer to that question. The agreement itself she hasn't breached I don't think but this is my house she was working from, under my business name and with the complaints and how she was treating my business I felt this was detrimental to my reputation and i couldn't possibly have her back.

I have in writing her asking me for the invoice of how much the certificates cost, so that she could pay me and I could hand them over. When I sent her a copy of the invoice which was £331.20 with VAT (I am a sole trader so I included VAT as i am not exempt) she said she felt it was unfair that I asked her to pay and these qualifications belong to her as they have her name on, and she has been penalised as I have terminated her agreement and these are qualifications she has gained.

I spoke to the company that she trained with that issue the certificates and they say that as these courses / certificates were paid for on my account, and belong to me until she sends them proof that she has repaid me for them they will not issue her any copies.

We were going round in circles and eventually I asked her this morning (friday morning) to only contact me through a solicitor going forward and can I have her solicitors details which she did not send over to me.

And lastly, she then emailed me with a Subject Access Request for GDPR stating that she wants all details and files I have that pertain to her, which is fine however that includes copies of her qualifications. I spoke to the IOC on the telephone and asked them when it comes to the copies of the certificates can I mark the certificates as copies so she is unable to use them and then send them to her, as they have her name on I know I legally have to send them to her but is there any way of getting out of this? I am afraid that if I don't resolve this she will find a no win no fee solicitor (as I really don't think she will pay one) and take me to court, at which point if she won I would lose my business by having to pay the court fees and solicitors costs.

I really don't know what to do here I really need some advice, Ive called ACAS and Citizens Advice and they said the both can't help me. As I have paid out thousands of pounds for everything from courses, to equipments furniture and advertising I can't afford a solicitor for £240 an hour which is what I've been quoted. The certificates themselves are only worth £330.20 so it wouldn't be worth it. At this point I will do anything to resolve this however if i hand over her certificates, there is no guarantee she will not still pursue this matter and take me to court for unlawful dismissal if thats something she can even do as a self employed sole trader with a service contract?

I am at my wits end and I have no idea where to turn any help would be greatly appreciated.

 

[Mr D]

Your reference to employment and your control of the person appears to be employee and you also refer to them as self employed. So which did they work as?

 

[Kellie Underwood]

Your reference to employment and your control of the person appears to be employee and you also refer to them as self employed. So which did they work as?

She was self employed and paid me a percentage of her earnings as it was my business however we did have an agreement in place for her services so a service agreement as i paid for all qualifications, materials for her to be able to do the job and advertising

 

[chalkie99]

I am a self employed sole trader nail technician and I work from my house

When I sent her a copy of the invoice which was £331.20 with VAT (I am a sole trader so I included VAT as i am not exempt)ething she can even do as a self employed sole trader with a service contract?

Are you actually VAT registered?

It seems unlikely as you are working from home and your customers will be the public.

Your use of the word "exempt" is concerning me.

 

[Kellie Underwood]

Are you actually VAT registered?

It seems unlikely as you are working from home and your customers will be the public.

Your use of the word "exempt" is concerning me.

I never said I was VAT registered. As per the .gov website it states that you must register for VAT if you go over the threshold of £85,000 in a 12 month period, which I absolutely do not earn.

What I meant was, I wanted the money back from the trainee, for the qualifications. I showed her the invoice with VAT added as I do not earn over the threshold and therefore cannot claim back the VAT. If I had have been able to claim the VAT I would have asked her for the cost before VAT back.

 

[mattk]

Firstly, I am not a lawyer. However, from my understanding an employee needs two years of service in order to be able to claim unfair dismissal. Secondly, she isn't an employee, so I don't see how this would even be possible. It seems that breach of contract is a more likely claim.

Secondly, did you get your "service agreement" drawn up by a legal professional? I'm not entirely sure what this would contain or whether it is legally binding.

If it was me, I would give her the certificates and put it down to experience. As Mr D says, it sounds as if what you really wanted was an employee and not a sub-contractor. The level of control you seem to be demanding is far greater that what a sub-contractor would expect.

 

[chalkie99]

I never said I was VAT registered. As per the .gov website it states that you must register for VAT if you go over the threshold of £85,000 in a 12 month period, which I absolutely do not earn.

What I meant was, I wanted the money back from the trainee, for the qualifications. I showed her the invoice with VAT added as I do not earn over the threshold and therefore cannot claim back the VAT. If I had have been able to claim the VAT I would have asked her for the cost before VAT back.

This is why your message was confusing.

You should have invoiced her for the costs involved, giving her a copy of an invoice in your name is of no use to her as she will not have a document in her name to claim as an expense on her own return.

As you are not VAT registered you should not even mention it. Simply isssue your contractor with an invoice for the total amount you have paid, if this is the route you are going down.

If things are getting sticky, legally, then be careful not to give her ammunition for anything else.

I will leave the legal experts to offer their opinions on where you stand.

 

[Chris Ashdown]

My reading of the GDPR is that you have to give copies of all information held, but no exact details are included, so i would assume that if you made a scan of the certificate and reduced it in size and so pixelated you could not read the names etc, then technically you have complied with the gdpr but not given her any usable certificate. the chances of someone taking court action would be minimal

The gdpr is another poorly written document again just like the human right act , with nobody looking at how it can be miss used. next week everyone who has applied for a new job will be asking for full details of why they did not get the job and to see your notes on the interview

 

[Newchodge]

I fn dthe concept of a self employed trainess very confusing. Why was she not an employee?

 

[smallclaimsassistance]

She then asked me what terms she had breached and honestly, I don't have an answer to that question. The agreement itself she hasn't breached I don't think but this is my house she was working from, under my business name and with the complaints and how she was treating my business I felt this was detrimental to my reputation and i couldn't possibly have her back.

This is unfortunately the problem. You have ejected her from your business, and although you can't point to any legal or contractual justification for your actions, you may be right. You may not have to justify your position but if she challenges you, you will. If she does, you need legal advice.

For future reference it would be prudent to marshall your arguments and your contractual justifications before you take the step, rather than worry about them afterwards.

Dean

 

[Newchodge]

This is causing you more trouble than it is worth. The best thing would be to give her the certificates and invoice her for the cos of the training. When she doen;t pay, consider whether to take her to court.

Going forward,if you need smeone to work with you who is under your control, employ an apprentice.

 

[The Byre]

1. I am not going to read that long flow of consciousness, as I have work to do.

2. A brief scan of the text tells me that she was probably de facto an employee and could via ACAS make your life very difficult (and expensive!)

3. It seems that all she wants is some certificates and her GDPR info. May I suggest that you give these to her and move on.

 

[Kellie Underwood]

Firstly, I am not a lawyer. However, from my understanding an employee needs two years of service in order to be able to claim unfair dismissal. Secondly, she isn't an employee, so I don't see how this would even be possible. It seems that breach of contract is a more likely claim.

Secondly, did you get your "service agreement" drawn up by a legal professional? I'm not entirely sure what this would contain or whether it is legally binding.

If it was me, I would give her the certificates and put it down to experience. As Mr D says, it sounds as if what you really wanted was an employee and not a sub-contractor. The level of control you seem to be demanding is far greater that what a sub-contractor would expect.

I got the base agreement from a website that had base agreements set up and you tailor it to your business. You are correct she wasn't an employee. I could give her the certificates but that would not guarantee her not pursuing the matter further. I would like to come to an arrangement if I am in the wrong (which is what I want to establish) whereby I hand over her certificates and she signs a legally binding letter which states that she will not persue this any further and we call it quits.

 

[Kellie Underwood]

This is why your message was confusing.

You should have invoiced her for the costs involved, giving her a copy of an invoice in your name is of no use to her as she will not have a document in her name to claim as an expense on her own return.

As you are not VAT registered you should not even mention it. Simply isssue your contractor with an invoice for the total amount you have paid, if this is the route you are going down.

If things are getting sticky, legally, then be careful not to give her ammunition for anything else.

I will leave the legal experts to offer their opinions on where you stand.

I am sorry my message was confusing I wanted to give as much detail as possible, so that I could get the best advice, i haven't done this before so didn't know what to include or what not to include. She did say in writing to send her the invoice and she would pay me the money for the certificates and that she was happy to do that then went back on it straight after I sent the invoice.

 

[Kellie Underwood]

My reading of the GDPR is that you have to give copies of all information held, but no exact details are included, so i would assume that if you made a scan of the certificate and reduced it in size and so pixelated you could not read the names etc, then technically you have complied with the gdpr but not given her any usable certificate. the chances of someone taking court action would be minimal

The gdpr is another poorly written document again just like the human right act , with nobody looking at how it can be miss used. next week everyone who has applied for a new job will be asking for full details of why they did not get the job and to see your notes on the interview

Thankyou for your advice! The ICO did confirm that it was okay for me to write copy on the certificates I just know that when I do this and send back to her she will come back with another complaint

 

[Kellie Underwood]

I fn dthe concept of a self employed trainess very confusing. Why was she not an employee?

Because I wanted a colleague when she was eventually trained and up to standard to go into partnership with next year to open a salon away from my house. But as we agreed I would put all the finances in to begin with, I wanted something in writing to make sure I got my investment back.

 

[Kellie Underwood]

This is unfortunately the problem. You have ejected her from your business, and although you can't point to any legal or contractual justification for your actions, you may be right. You may not have to justify your position but if she challenges you, you will. If she does, you need legal advice.

For future reference it would be prudent to marshall your arguments and your contractual justifications before you take the step, rather than worry about them afterwards.

Dean

What I don't understand is she says she has had our services agreement checked out by a solicitor which I don't believe however she says its not worth the paper its written on. So if that was the case, would that mean she cannot take me to court for a breach of a document that is not legally binding?

 

[Awinner2]

Give her the certificates and cancel the invoice. Move on to finding an apprentice and make sure you get a proper lawful contract next time. Inexperience can cause major problems later on without knowing it.

 

[Kellie Underwood]

This is causing you more trouble than it is worth. The best thing would be to give her the certificates and invoice her for the cos of the training. When she doen;t pay, consider whether to take her to court.

Going forward,if you need smeone to work with you who is under your control, employ an apprentice.

I wanted a colleague when she was eventually trained and up to standard to go into partnership with next year to open a salon away from my house. But as we agreed I would put all the finances in to begin with, I wanted something in writing to make sure I got my investment back.

If I give them to her there is no guarantee she won't still take me to court for anything else or try to get at me in any other way. I didn't want her to be under my control but as she joined the business as a trainee and I covered all costs with regards to her working so thats why I did it that way, maybe I was wrong?

 

[Mr D]

I got the base agreement from a website that had base agreements set up and you tailor it to your business. You are correct she wasn't an employee. I could give her the certificates but that would not guarantee her not pursuing the matter further. I would like to come to an arrangement if I am in the wrong (which is what I want to establish) whereby I hand over her certificates and she signs a legally binding letter which states that she will not persue this any further and we call it quits.

Yet you treated her as though she was an employee. Hopefully she won't figure it out and take it further, demanding holiday pay and wages.

Self employed have a lot more freedom about time and taking holiday. And you don't manage them.

Next time work out whether you want an employee and contract appropriately.

https://www.gov.uk/employment-status/employee

https://www.gov.uk/employment-status/selfemployed-contractor

Talk to a local solicitor about what measures you can take, legally binding letters may be going too far or not far enough.

 

[Newchodge]

No one can say if you were right or wrong without a lot more information. You knowing if you were right or wrong will make no difference to whether she tries to take further action. She could try to get holiday pay, but as she was only with you 3 months, the cost of paying her that, offse against the training costs would be minimal.

You could offer her the certificates on condition that she signs a binding agreement that she will not take further action, however, you would have to pay for her to get legal advice about such an agreement for it to be valid. I doubt it is worthwhile.

Send her the certificates with an invoice from you covering the cost.

Talk to the local college about taking on an apprentice.

Never, ever, rely on online legal advice unless you know exactly what you are doing.

 

[smallclaimsassistance]

Having read this:
"I got the base agreement from a website that had base agreements set up and you tailor it to your business"
I am not surprised to read this...

What I don't understand is she says she has had our services agreement checked out by a solicitor which I don't believe however she says its not worth the paper its written on.

Legal "templates" are liberally sold without adequate advice and that combination often results in a document which is, literally, not worth the paper it's written on. As I write this, the very latest client I took on decided to pay for a template Claim Form from a well known firm of solicitors who issue Claim Forms and then leave the claimant to deal with any defence. Typically these Claim Forms contain the bare minimum of information, which sometimes is sufficient. I am now helping this client fight an application to strike out his claim due to inadequate pleadings. I have a page on my website dedicated to the difficulties caused by legal templates. That case, and this, is the reason.

In answer to your direct question, yes she can. The contract, if there is one, is a set of specific terms applied to a legal relationship between two or more parties which operates around and supplements the applicable law. If the contract fails, she would be able to pursue you under the applicable law.

Dean