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

[mixedmama]

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.

no he definitely wouldn't be considered self-employed legally, although for working time purposes he doesn't need to be 'employed' anyway, he is a 'worker', so they are definitely responsible for making sure he takes the right amount of rest time.

Is the situation regarding lack of breaks the same for all the drivers? Something like this would be easier to tackle as a group for obvious reasons.

Same for all drivers they all feel that they are not allowed to take breaks,.

Is it a big company mixedmama?

About 40 drivers. they have grown in a very small space of time. they have no idea how to run a company - we have pay discrepancies every single week. One guy has worked there for 18 months and filed a record 56 pay queries.

Hmm, is common for small companies to grow beyond their capabilities and find themselves stretched, and also not realise that they are as liable for this kind of stuff as a big organisation is.
I think getting them on the driving law stuff might be easier/preferable than doing it on the working time stuff, mainly because the driving stuff is more stringent and might also be more scary for them.
Maybe Peachy could help about what the regulations are, even if he is paid on a self-employed basis, he wouldn't be considered self-employed by the Inland Rev or an Employment Tribunal, and also he is under pressure and may suffer detriment if he insists on the breaks he must have under the driving regs, so I would say they are responsible.
Peachy do you or DH know who enforces them, is it the HSE and what are the consequences of a company not permitting drivers who are working for you to take the required breaks?

Alternative to that is taking them to a tribunal for a breach of the working time directive, but as I say, it would probably be easier to report them to the HSE for the driving regs stuff.

Don't know how long your DH has been working with this company, but as he would be considered as 'employed' by a tribunal, they can't dismiss him for raising a H&S concern even if he's only been there a very short time.

With the breaks i dont even think he wants 45 mins. he just doesnt wannt to be hassled if he takes 10 mins to eat a sandwich or grab a coffee and go to the loo.

I have done my research and we have written a letter as i find especially given their size you have to put it in writing.

It is not lawful for a company to set up their pay structure so that it is possible for an employee to owe them money when it comes to pay day. And it is clearly possible here - e.g. what would happen if he was off sick for a week??

Whether the drivers signed to say they agreed to this is not necessarily binding. A tribunal or court would look at the relationship between the employer and the employee (or self-employed person being treated as an employee - and I do think, from what you have described, that a tribunal would consider your dh to be an employee anyway) and whether there was an imbalance in their negotiating powers. If the drivers did not sign, did they risk losing their jobs? If so, then the company is in a far stronger position than the employees and was clearly taking advantage of that.

I would speak to ACAS or see if your local CAB has an employment specialist.

Apparently some of the bike riders who do not speak very good English were told they had to sign it and they did not even really understand the document.

Oh dear, this is sounding worse and worse, if there was basically no choice but to sign it and some didn't even understand what they were signing that is not on I would say.

I think with all this the best thing your DH can do is give ACAS a ring, talk through the lack of rest time, and this deductions for sickness thing, give them all the background about the nature of his contract with this company and they will advise him what the best thing to do is.

I am going to print this thread tonight and show him what everyone has been saying and then get him to call. they havent even given them a copy of their contracts or any other documents that they have signed so he has no reference. I told him to ask for copies when he goes there today.

good grief, there's more!
Definitely get him to get a copy of all his paperwork. And with all these different things it's really important he has a chat with Acas as he can explain everything to them so they can get a full picture of what's going on.

Best of luck, hope they can help him and he get's it sorted.

Cheers and thanks to everyone for all your help.

'Maybe Peachy could help about what the regulations are,'

I shall get get Dh to answer for you.

WHAT IS THE DAILY DRIVING LIMIT?
9 hours (which can be increased to 10 hours twice a week) taken between
two consecutive daily rest periods or between a daily rest period and a weekly
rest period. Driving off the public road does not count as driving time.

IS THERE A WEEKLY DRIVING LIMIT?
No, but a weekly rest period must be taken after no more than 6 daily driving
periods. It is possible to drive up to 56 hours between weekly rest periods (or 58
hours if the 6 daily driving periods straddle ?two weeks? as defined on page 4).
There is however a fortnightly driving limit of 90 hours in any one fortnight.

Driving - Rest - Driving - Rest - Driving
4.5 HR - 45 M - 4.5 HR - 45 M - 1 HR

IS THERE A LIMIT TO CONTINUOUS DRIVING?
Yes, after 4 1/2 hours of cumulative or continuous driving a driver must take a break of at least 45 minutes unless the driver begins a daily or weekly rest period (or 2 or 3 breaks of no less than 15 minutes during or immediately after the driving period so that the total break adds up to at least 45 minutes in the 41/2 hours of driving).

HOW SHOULD BREAKS FROM DRIVING BE TAKEN?
During any break a driver must not drive or undertake other work. If a vehicle is
manned by 2 drivers, one of them may take a break on the vehicle whilst the other
drives.
Periods of less than 15 minutes do not count towards the 45 minutes? break
requirement, although the tachograph should be switched to the rest mode.

15 WHAT ARE THE RULES ON DAILY REST PERIODS?
In each period of 24 hours, a driver must have a minimum daily rest of 11 consecutive hours. This may be reduced to 9 hours not more than 3 times a week, as long as the reduction is compensated by an equivalent rest before the end of the following week.
Alternatively, 12 hours? daily rest may be spread over the 24 hour period, taken in
two or three periods, the last of which must be at least 8 consecutive hours, and all of which must be at least one hour.

16 HOW LONG CAN A DRIVER BE ON DUTY?
There are no duty limits. However, the daily rest requirements limit the number of
hours drivers can work as follows:
No of drivers Minimum daily rest period Spreadover

(i) 11 consecutive hours which can be reduced . 13 hours work to 9 hours 3 times a week with compensation (inc. breaks) ? or
before the end of the following week up to 15 hours 3 times a week

(ii) 8 consecutive hours when taken as one of 2 or 12 hours work 3 separate periods (a minimum of 1 hour) (inc breaks) totalling 12 hours of rest in any 24-hour period

I hope this helps.

how brilliant!
Peachy you and your DH are stars, thanks from me as it was me who volunteered you to help...

Thanks this is so helpful

No prob

I think Dh 'lifted' a lot of that from the Ministry website, but just for refs he's transport co-ordinator at Ceva newsfast