Rjan:
And on the other hand a driver who immediately says to the person who gave him the terms “I’m not having that” (etc)…
I understand your points but I think sometimes in your posts you get far too caught up on the theory side of things which weakens your arguments. The reality is that anything done verbally is at high risk of getting stuck in an endless loop of ‘he said, she said’ arguments, accusations and denials which courts don’t have time for when their job is to make a decision based on hard facts, evidence and proof. If you go without these things then it’s very likely your case will get thrown out. You are correct in saying that there is no requirement for the grievance to be put in writing (as I’ve already said in reply to robroy above) but a verbal refusal/grievance is going to be much much more difficult to make ‘stick’ if there is no hard proof or evidence of you having done so.
I accept that there is a difference between on the one hand applying the law to a set of circumstances, and on the other hand actually proving those circumstances.
I don’t dispute your point at all that putting things clearly in writing is often a safer bet. I wouldn’t tell someone not to do so - although the employer could still allege that a driver’s letter is a recent forgery or was never received, unless the driver gets it signed or stamped by the employer (all the same as the employer can deny that a verbal conversation ever took place) and in many cases I can imagine an employer would refuse to sign something presented by a driver (and upon receiving a written refusal, may simply consider the matter closed and let sleeping dogs lie). And even then, after as long as 5 years, many drivers may have misplaced paperwork, and may be forced simply to swear that such a letter was ever sent. So putting things in writing is not a complete solution to the evidential problem.
I’ll try not to write at any greater length on this, and simply say the bottom line is that what a court will expect to see as a norm is that employers gain signatures for any variation in terms, especially those that are wholly and unquestionably detrimental to a driver’s pay and conditions of work. If the employer doesn’t have that, they’d be barking mad to go to actually go to trial over the issue.
Dipper_Dave:
If you do ever pursue this I would direct my legal council to explore the ‘Unfair Contract Terms Act’ and its relevance to employment contracts in this instance… just guessing.
Stuff like this makes me glad I watched all them legal show episodes of ‘Quimcy’ and ‘Rampole of the Batty’ when I was younger.
I’m afraid it’s of no relevance it only applied to consumer contracts and employment was explicitly out of its scope (and has since been replaced by the Consumer Rights Act - off topic: a cracking piece of law that more people should know about, but sadly not of use to the OP’s colleague in this situation)
Aren’t you thinking of the Unfair Terms in Consumer Contracts Regulations 1999?
Rjan:
[…] Regards “enforced” contract changes, the way that works is that you dismiss the employees (with notice, and the payment of any contractual entitlements) but then re-hire them on a new contract. If the employee has more than 2 years continuous service, that can only be done if the reason for doing so is “fair” - otherwise it amounts to an unfair dismissal. Generally speaking, they’d have to show that the entire company was heading for bankruptcy or something similar - it cannot be justified simply because of a profit grab, or because managers would find it convenient to make the change.
If you can find a way to make that work go to Sainsbury union tell them how and you will be a very popular man!
I went through it when they brought managers premiums out a few years ago. I probably only lost about a grand. Some lost 3k.
They are reducing premiums and thats why people are losing out. Its “not fair” to have different people earning different because of their start date whilst doing the same job.
If you don’t accept you finish and are classed as having resigned.
Sorry I missed this post the first time around (it seems to be happening a lot lately - can posts be delayed before they appear?).
In large firms, I’ve come across some information in the past that enforced changes are alleged to be fair for the purposes of simplifying pay structures where a company has accumulated a very diverse set of them, or resolving jealousies where people of equal status doing equal work alongside each other may be getting completely different pay for it. I can’t say I can recall reading an actual litigated case of it though. I think in many cases, firms simply assert that it is fair, and pay any money to resolve unfair dismissal claims, gambling that the majority will accept the change rather than walk out the door (and perhaps destroy their careers in the process, or only stand to gain worse terms in the market in a new job) - if thousands of pounds per worker are at stake and only a minority are expected to resist, and where it might clean out a few troublemakers and dead wood who have passed their peak in their careers, it’s considered good business to launch such attacks.
The union, if not just totally craven and compromised, might have chose not to fight it simply because they had taken the temperature of the workforce, and the majority were not willing to fight the issue with industrial action (which is especially likely if you have a few guys on gold-plated terms, whilst the rest are on far inferior terms). They might also have judged that there were associated benefits for many workers as part of the changes. Either way, a union works on solidarity, and if you haven’t been solid with new entrants being offered inferior terms, then eventually you’ll reach a point where there won’t be enough people on the better terms to defend them via collective industrial action.
I don’t know about actually PAYING for damage but I remember company drivers repairing any knocks and scrapes themselves at home with either a fibreglass kit and filler or getting somebody to panelbeat any dents out! One lad even got a blacksmith to make him a front bumper rather than turn up at the yard with a badly damaged one. When the firm I once worked for ran Ford Traders one chap went missing for a day or two and when they visited his home the lorry was there with the gearbox stripped down, he was replacing a damaged gear but daren’t tell his gaffer incase he sacked him! There’s rarely nothing new in road transport!
robroy:
On reflection I have to admit and face it that there has been a bit of naivity and a lot of ignorance of rules in my personal part in all this , …and presumably same with the few others who refused to sign this.
As you say, hindsight etc.
I do remember the manager saying something along the lines of… ‘‘You will all need to sign this through time’’ and that was as far as it went, and after the 5 yrs (you know what it might have been more than 5 if I think back ) I just thought it had died a death.
I don’t even think I kept a copy of that contract out of disgust.
You are right about the time scale weakening any case brought up,.and I know for a fact that if it suits them then denial will be their strategy…I know what they are like, their cynicism towards their drivers is well known.
As for this specific case, I do not know the cost of damage to that trailer. It was definitely not totalled by any means when I saw it myself, and it looked fairly easy to repair, a bent support pillar causing the trailer to sit back about a foot or so, but you know the rates that are charged nowadays.
I think it’s more a token case of making (yet another) example of a driver to deter others, but how you can deter people from pure accidents is baffling to me.
One of the pitfalls of working for a crap firm with illusions of grandeur.
Anyway that’s about it from my end, and after reading all the points on here (and from conversations with friends) I feel that from my own personal point of view specifically, (not speaking for the others) regarding the revised contract, there is nothing I can do other than sit back unfortunately, but sit back a bit more ‘‘briefed up’’ and safe in the knowledge I am more aware of procedures now IF and WHEN all this affects me personally …
On reflection maybe even time for a look around,…despite me being content in the job I am on (which would be a shame )but there is only so much crap that one can take.
Problem is in my area there are loads of jobs, but no good ones, and I already work for the BEST of a very bad bunch as it is which already maximises my chances. …so I need to think about this, and either sit tight or try and go out based as I always used to.
So thanks again for all the input off everybody, all the info will be passed on to others affected by all this unneccessary [zb] aggravation by a firm towards it’s drivers.
As somebody said if we had an active and fair Union amongst us all this type of ■■■■■■■■ would not be anywhere as prevalent as it is, but that’s another argument for another day . .
Thanks again all.
You should still get a copy of your current contract so you know what to expect if you find yourself on the receiving end of a damage deduction but also you need it before you can ring ACAS. If you don’t bother to ring ACAS to find out where you stand then you’re basically bending over and letting your company shaft you. Personally I wouldn’t let it go. What’s a 15 min phone call going to cost you? If Rjan is right ref “it’s for the company in the first place to show that they sought consent and received it” then you’re in a strong position to sue them for breach of contract because they have no proof that consent was received from you and your colleague(s), therefore the deductions are illegal.
Ok I’ve taken on board what you’ve said.
I’ll look into it.
Thanks for the help btw.
I can’t believe we are in an age where sone drivers actually accept these terms,
I joked a while ago about how soon drivers will be putting a bit of fuel in out of there own pocket to make there fuel figures better,I wouldn’t put it past some of them now,
3 Right not to suffer unauthorised deductions. (1)An employer shall not make a deduction from wages of a worker employed by him unless— (a)the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b)the worker has previously signified in writing his agreement or consent to the making of the deduction. (2)In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised— (a)in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b)in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion. (3)Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion. (4)Subsection (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion. (5)For the purposes of this section a relevant provision of a worker’s contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect. (6)For the purposes of this section an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified. (7)This section does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting “wages” within the meaning of this Part is not to be subject to a deduction at the instance of the employer. 14 Excepted deductions. (1)Section 13 does not apply to a deduction from a worker’s wages made by his employer where the purpose of the deduction is the reimbursement of the employer in respect of— (a)an overpayment of wages, or (b)an overpayment in respect of expenses incurred by the worker in carrying out his employment,made (for any reason) by the employer to the worker. (2)Section 13 does not apply to a deduction from a worker’s wages made by his employer in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision. (3)Section 13 does not apply to a deduction from a worker’s wages made by his employer in pursuance of a requirement imposed on the employer by a statutory provision to deduct and pay over to a public authority amounts determined by that authority as being due to it from the worker if the deduction is made in accordance with the relevant determination of that authority. (4)Section 13 does not apply to a deduction from a worker’s wages made by his employer in pursuance of any arrangements which have been established— (a)in accordance with a relevant provision of his contract to the inclusion of which in the contract the worker has signified his agreement or consent in writing, or (b)otherwise with the prior agreement or consent of the worker signified in writing,and under which the employer is to deduct and pay over to a third person amounts notified to the employer by that person as being due to him from the worker, if the deduction is made in accordance with the relevant notification by that person. (5)Section 13 does not apply to a deduction from a worker’s wages made by his employer where the worker has taken part in a strike or other industrial action and the deduction is made by the employer on account of the worker’s having taken part in that strike or other action. (6)Section 13 does not apply to a deduction from a worker’s wages made by his employer with his prior agreement or consent signified in writing where the purpose of the deduction is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of an amount by the worker to the employer.
Dipper_Dave:
If you do ever pursue this I would direct my legal council to explore the ‘Unfair Contract Terms Act’ and its relevance to employment contracts in this instance… just guessing.
Stuff like this makes me glad I watched all them legal show episodes of ‘Quimcy’ and ‘Rampole of the Batty’ when I was younger.
I’m afraid it’s of no relevance it only applied to consumer contracts and employment was explicitly out of its scope (and has since been replaced by the Consumer Rights Act - off topic: a cracking piece of law that more people should know about, but sadly not of use to the OP’s colleague in this situation)
Aren’t you thinking of the Unfair Terms in Consumer Contracts Regulations 1999?
The way i see it is if its an overpayment…they can legally deduct it…and you had the chance to tell them once you noticed it…maybe you did…and all above board…the same as a bank who puts a £million extra in your account by mistake.
As for robs point…well done for not signing…and i believe the new contract is not valid unless theres a signature on it.
They have broken the law by deducting monies not authorised by law, which is tax, insurance, or with permission from the employee…so i would inform them that i am phoning ACAS to get this order reversed, and the loan i had to take out, from the inlaws…need to be paid back with interest…plus the wage deduction need to be repaid forthwith…depending on their answer…is whether they get their truck back from where i parked it…if i could remember… good luck with your mates cause.
robroy:
Ok I’ve taken on board what you’ve said.
I’ll look into it.
Thanks for the help btw.
So what did ACAS say when you rang them on Monday?
Great difficulty getting to speak to somebody on their official 03003890286 helpline, tried a couple of times.
I got informed there was a 20/30 minute queue or similar, sat listening to a violinist ■■■■ solo for 15 minutes on two occasions.
Got the Mrs on the case anyway, she’s having a go.
Looked on their on line help site, nothing really specific pertaining to my personal contract case.
Tracked down a (revised) contract btw, which says maximum charge of 500 quid (which is said apparentlly, to equate to their insurance excess)
Criteria for charges are proven negligence and/or carelessness, (and the guy who has been charged is denying both and fighting it through their official Grievance procedure I am told)
As for me and this ignoring of contract, I spoke to Union, told them what was going on, who told me I should have not just ignored and disagreed with the revised contract, but put in writing that I intend to carry on working to other terms, but under strong protest to that specific ‘pay for damage clause’
They also told me that any amount taken off under that contract must be discussed prior and an agreed instalment plan amount be discussed rather than an amount decided on a whim by the employer.
Told to contact them also if they ever implement this clause on me, but in meantime inform employer that you are totally in disagreeance with these charges they are now implementing.
(Mentioned it to one or two more got the usual apathy )
I put it in writing and it is on my file…so I’ll see what happens (if anything) in future.
I’ll let you know when the Mrs does get through to acas what THEY say about all this.
robroy:
Ok I’ve taken on board what you’ve said.
I’ll look into it.
Thanks for the help btw.
So what did ACAS say when you rang them on Monday?
Great difficulty getting to speak to somebody on their official 03003890286 helpline, tried a couple of times.
I got informed there was a 20/30 minute queue or similar, sat listening to a violinist [zb] solo for 15 minutes on two occasions.
Got the Mrs on the case anyway, she’s having a go.
Looked on their on line help site, nothing really specific pertaining to my personal contract case.
Tracked down a (revised) contract btw, which says maximum charge of 500 quid (which is said apparentlly, to equate to their insurance excess) Criteria for charges are proven negligence and/or carelessness, (and the guy who has been charged is denying both and fighting it through their official Grievance procedure I am told)
As for me and this ignoring of contract, I spoke to Union, told them what was going on, who told me I should have not just ignored and disagreed with the revised contract, but put in writing that I intend to carry on working to other terms, but under strong protest to that specific ‘pay for damage clause’
They also told me that any amount taken off under that contract must be discussed prior and an agreed instalment plan amount be discussed rather than an amount decided on a whim by the employer.
Told to contact them also if they ever implement this clause on me, but in meantime inform employer that you are totally in disagreeance with these charges they are now implementing.
(Mentioned it to one or two more got the usual apathy )
I put it in writing and it is on my file…so I’ll see what happens (if anything) in future.
I’ll let you know when the Mrs does get through to acas what THEY say about all this.
Sounds like an excellent case for the introduction of driver facing CCTV to me . They’d have been able to watch the footage to see that the driver was in full control of the vehicle and was fully concentrating on the road so couldn’t be held liable for a jaunty tree branch. I think you should contact your company CEO and tell him you want them installed as soon as possible so that you can’t be strung up on spurious damage claims and wage deductions . But on a serious note, the company should be persuing the LA for the cost of the damage, assuming that the driver and vehicle were fully on the carriageway at the point of impact and not being driven down the verge, for example.
two points Rob K is correct in his posts. this very problem has been tried and tested in court, sorry I no longer have the details. Continuing to work after verbally refusing the change to contract, which any employer can do at any time, is not defence. This is one reason unions are still valid, even if unpopular. 2nd point The issue of reclaiming overpaid wages as described MAY be illegal. Only in the case of reclaiming it all if it constitutes more than a certain percentage of your gross wage. you MUST be permitted to retain enough wage to live off until your next pat day, otherwise the reclaimed money must be taken over a longer period at a lower rate.
Beginning to think this ACAS number is having a laugh here.
Tried at least 3 times since last attempts, and the Mrs also, keep ending up in the long queue.
Quite eager to see what they have to say on this contract thing, and if it differs from Union advice.
No doubt somebody will say they had no probs.
(If anybody does ring acas for something, use the number I stated, the 0843 one is premium rate. )
Update…(if you’re mildly interested )
Still no joy getting past telephone oblivion with ACAS, so rang Union again to ask if it would be worth or relavent to write a letter after all this time seeing as I had genuinely just found out the protocol, to put on file that I disagree with revised contract clause.
Was told ‘No’ as I had already worked (unbeknown to me) under those terms for last 5/6 years.
If met with a charge at all in future told to contact them to arrange better terms or whatever, but basically I’ve ■■■■ in my nest for not doing it right away…(proving it does not pay just to roll over with these bastds, so take note!!. )
Can’t see been told different by acas.
Incidentally the driver who was deducted has had the charge quashed and been re.imbursed as it was proven there was no negligence or careless driving, so a result there anyway.
robroy:
Update…(if you’re mildly interested )
Still no joy getting past telephone oblivion with ACAS, so rang Union again to ask if it would be worth or relavent to write a letter after all this time seeing as I had genuinely just found out the protocol, to put on file that I disagree with revised contract clause.
Was told ‘No’ as I had already worked (unbeknown to me) under those terms for last 5/6 years.
If met with a charge at all in future told to contact them to arrange better terms or whatever, but basically I’ve [zb] in my nest for not doing it right away…(proving it does not pay just to roll over with these bastds, so take note!!. )
Can’t see been told different by acas.
Incidentally the driver who was deducted has had the charge quashed and been re.imbursed as it was proven there was no negligence or careless driving, so a result there anyway.
Good result robroy. Interesting to know about the problems with ACAS. Evidently not a simple case of “just ring ACAS” then when you have problems. I suppose it was to be expected as the same thing happens with the CAB as well. It’s impossible to contact them on the phone and in larger cities it’s a case of having to go see them in person, but you have to get there at the crack of dawn as they’re queueing down the street at 9am and then it’s a first come first served basis.
I loiter a lot on the employment board on the MSE board and the people I respect on there are of the opinion that ACAS are pretty rubbish. You could try posting there, couple of union reps and some HR people give top advice.
it only applied to consumer contracts and employment was explicitly out of its scope (and has since been replaced by the Consumer Rights Act - off topic: a cracking piece of law that more people should know about, but sadly not of use to the OP’s colleague in this situation)
, …and presumably same with the few others who refused to sign this.
) I just thought it had died a death.
good luck with your mates cause.
(which is said apparentlly, to equate to their insurance excess)
)