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Original poster

Is this legal?? Pay £50 if you are absent.

41 replies

mixedmama · 08/08/2007 16:17

My husband is a courier and technically self employed. His company have recently introduced a system whereby if you are off sick/absent they take £50 out of their wages. Now, they did put this in writing and the drivers signed it which suggests to me they have agreed.

are they allowed to do this? my hubby had to take a day off to look after our son as childcare fell through and he doesnt get paid if he is not working anyway so seems a little unfair to be "charged" as well especially as it was unavoidable. also i would think it is quite dangerous to have a sick driver.

OP posts:
Peachy · 08/08/2007 16:29

call this number NOW ACAS (on the home page)

i think it comes under unlawful deduction of wages, but ACAS are amazinga nd will sort you in minutes X

flowerybeanbag · 08/08/2007 16:35

If they agreed to this deduction it is not unlawful. Also if he is genuinely self-employed there may well be something in his agreement about this, maybe a compensation for inconvenience or similar, costs of short-notice cover or something.

happy to be corrected if anyone knows different, but I would say it's fair enough tbh

Original poster
mixedmama · 08/08/2007 16:36

Thanks will give that a go.

OP posts:
Peachy · 08/08/2007 16:37

yeah I noticed the signature bit after!

But still call ACAS! They will know for sure

If it is the case, he really should lok elsewhere for work.

Original poster
mixedmama · 08/08/2007 16:39

thats what i am thinking... they are even creating a fuss about taking 15 mins out of a 10 hour shift of constant driving to grab something to eat... have already written a long letter about this.

OP posts:
Peachy · 08/08/2007 16:45

OK, Dh is a transport amanger

that contravenes driving law! BUT as he is self employed your DH is going to be held responsible if he si caught

4.5 minutes driving is max without a 45 break 9cant be broken down into segments as it used to be)

HTH

flowerybeanbag · 08/08/2007 16:47

that definitely can't be legal, your DH is a 'worker' even if he is self-employed and is legally entitled to 20 minutes rest if the day is longer than 6 hours.

Original poster
mixedmama · 08/08/2007 16:47

yeah i saw that and that is what i have quoted in my letter. also mentioned that as he is self employed he is responisble but as he is responsible he wants to be able to take a break without being questioned and harrassed.

they are really awful... he really needs to move on. but easier said then done in our current situation.

OP posts:
flowerybeanbag · 08/08/2007 16:48

he may be responsible for the driving law stuff, but as a worker he is not responsible for the working time regulations, his 'employer' is.

Peachy · 08/08/2007 16:59

But hge's self employed? DH's compant (used to be known as TNT LOL) uses a lot of owner drivers and other sub contractors, they're all held as self employed

flowerybeanbag · 08/08/2007 17:01

they may be technically self-employed but working this way they would be classed as 'workers' which doesn't exclude self-employed people, and it's 'workers' who are covered by the Working Time Directive, not employees.
here

Peachy · 08/08/2007 17:04

Ah I see

the driving alws are mosre stringent than WTC anyway, i think.

IIRC The WTC is still opt outable (sure I read that on ACAS on Monday), is there any chance he's doen that?

Again not that he would be exempt.

Are they also allowing him to apply maxmimum hours etc?

flowerybeanbag · 08/08/2007 17:06

I'm pretty sure you are only allowed to opt out of the maximum hours per week thingy, not the rest time. Talking off the top of my head though, haven't checked.
And as you say, driving stuff more stringent, as it should be!

Original poster
mixedmama · 08/08/2007 17:12

No he hasnt opted out, they just dont like the drivers taking breaks, which I think is just unacceptable as that is dangerous when they might be on motorways etc..

OP posts:
edam · 08/08/2007 17:18

Well, I think you need to report his company to whoever enforces the regulations. Health and Safety Executive, perhaps?

flowerybeanbag · 08/08/2007 17:24

See below from Acas about who to complain to.

'Workers may complain to an employment tribunal if they are being denied rest periods, breaks or the paid annual leave entitlements. Working time and night work limits are enforced by the Health and Safety Executive and Local Authorities.

Employees may complain to an employment tribunal of unfair dismissal, regardless of their length of service, if they are dismissed for exercising rights under these regulations; and workers who are not employees may complain that they have suffered a detriment if their contracts are terminated for this reason. Both employees and workers who are not employees are also protected from other detrimental action or deliberate inaction by their employer. '

OPs DH is a worker who is not an employee.

Original poster
mixedmama · 08/08/2007 17:26

Thanks so much ladies, youhave all been so helpful. Do you all work in employment law or something how do you know so much??

OP posts:
flowerybeanbag · 08/08/2007 17:29

Am HR consultant

HappyMummyOfOne · 08/08/2007 18:11

If the drivers signed to say they accepted the charge for being sick/absent i'm not sure he can argue it. Its probably a charge to cover a temporary driver to cover the route - they are usually more expensive. Seems a bit unfair if your sick though rather than just urgent leave.

The driving hours he definately needs to look into though.

Original poster
mixedmama · 08/08/2007 18:14

they dont actually replace...i guess it is supposed to disccourage people taking time off... but they dont get paid if they dont work anyway so not sure why you would then need to charge them after they are losing a days money anyway.

i suspected that there was nothing he could do about it, I dont know why he signed it to be honest, personally i would have questioned it at length before signing anything.

OP posts:
Peachy · 08/08/2007 21:47

No, LOL but have taken dh's ex employers to tribunal- and won (ha ha ha).

Peachy · 08/08/2007 21:48

btw when he signed it was it in the form of a contract and was he given tjhe opportunity to take it away and seek advice?

islandofsodor · 08/08/2007 22:17

The inland revenue or an employment tribunal will look at things like this to determine whether someone is truly self-employed or not.

Does he chose his own hours as long as the job is completed within a certain time frame?

Does he have the right to send another comptent person in his place if he is absent.

Does he bear real financial risk eg, if he is paid by the hour he diesn't but if he agrees price for a job (eg price per delivery) then he bears a risk if it takes him longet than planned.

If the answer to any of the above is No then he is not legally self-emplyed.

islandofsodor · 08/08/2007 22:18

The firm I work for employ sub-contractors by the way and they do have to pay penalty charges (as do we if we sub for a bigger firm) if an agreeed job is not completed on time. That is perfectly legal.

Original poster
mixedmama · 09/08/2007 11:08

islandofsodor - No to all your questions so I guess that means they bear most of the responsibility.

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