Agency drvrs/ damage and responsility

Winseer:
Truckyboy/djw - a few thoughts on law interpretation:

I always thought that if you pay a court for a winding-up petition, then you get one! Bailiffs are appointed by the court, and anyone else claiming to be a bailiff NOT appointed by a court is bogus. The trigger is “non-payment of a debt”.

There are different types of bailiffs. For enforcement of a County Court judgment, you would be using a County Court bailiff, who is an employee of Her Majesty’s Court Service. These are not the certificated bailiffs (the likes of Constant and Co) that you hear of in contexts such as Council Tax debts. There are also several other types of bailiffs.

A winding-up petition is something of a nuclear option - very much the last step when attempting to enforce a civil debt against a corporate body.

A winding-up petition is asking for an equitable remedy - you have to show that winding-up is fair, just and reasonable in all the circumstances. Usually, the grounds for a winding-up petition is that a company cannot pay its debts - a very different thing to a dispute over whether there is a debt. Unless you have first obtained a County Court judgment (or order from the Employment Tribunal) that the deductions from wages are owed back to you and have attempted to enforce that judgment, the company will merely claim that there is no proof a debt exists.

Winding-up petitions are, in essence, to do with insolvency, not a mechanism to resolve a contractual dispute.

Winseer:
If you are correct about a court not having to “grant” a winding-up petition paid for in full up-front by the plaintiff, then everyone in the country with credit card debts could welch them overnight, and never have to worry about being made bankrupt - because the court won’t ‘just grant it’ (if your interpretation is right, and mine is wrong) unless the card company can prove the debtor owes the money - very hard to do without original signed paperwork nowdays… I can see where you’re coming from, but how come there isn’t a deluge of plebs all pushing for a “debt walkaway” in these hard times?

You are conflating personal bankruptcy and forced liquidation (i.e. winding-up) of a corporate body.

Credit companies do have to prove their debts to apply for a bankruptcy order against a debtor, just as a driver claiming breach of contract (such as uncontractual deductions from wages) by an insolvent employer would have to prove there was a debt owed, typically via a County Court judgment, to get a winding-up order.

The various companies that claimed they could get your credit card debts wiped out used various loopholes (now closed by the courts) to do with the non-availability of paperwork. If the loophole succeeded, it was often a pyrrhic victory - the court would not wipe out the liability for the debt, but would merely make an order that the debt was unenforceable. This meant the lender couldn’t take any steps to get their money off you, but the debt remained on your credit reference file meaning that you had zero creditworthiness. The claims management companies’ claims that they could “wipe out your debts” were simply not true - they cared merely about obtaining large fees, not about the mess they left behind even if they succeeded.

If an individual debtor can persuade their creditors to accept an IVA, that prevents the debtor from going bankrupt. Usually, if an IVA is possible, it is the better option. However, like bankruptcy (and its cousin for those of very limited means, the Debt Relief Order), an IVA is not free of consequences.

Winseer:
Are debtors - be they firms or individuals really beyond the reach of bankruptcy courts nowdays? :question:

I obviously stand to be corrected here, as I’ve never bankrupted anyone myself, nor been bankrupted by anyone including myself (Perhaps bankrupting oneself is the only way to BE made bankrupt today?) :open_mouth:

Most people pay debts they can’t afford because they’re afraid of court orders, bailiffs, being made bankrupt, and all the asset-stripping costs that go with it.

Remember - disputing there is a debt is a different thing from refusing to pay a debt owed.

Creditworthiness is a huge lever to pay your debts. Many things are difficult if you are not creditworthy - you can’t get utility services without prepayment (which often forces you onto poor value deals), you certainly won’t be able to rent property from private landlords and you can’t spread costs like car insurance payments because that would involve credit. Even 0% finance deals are inaccessible to those who aren’t creditworthy, because they are still credit agreements.

Even a single CCJ can have a devastating effect on your creditworthiness.

The consequences of bankruptcy are such that people will do what they can to avoid it. I know someone who had no chance of repaying debts that were not her fault. When you allow for all the penalty charges she had paid over several years of ‘trying to do the right thing’ and pay the bank back, she had repaid all the capital she had borrowed in full. Most of the remaining debt was due to charges that were added every time she was a little late with a payment she couldn’t afford.

During this period, she had lived below the poverty line, just about managing to eat and pay her utility bills. Eventually, I told her that she should apply for a Debt Relief Order to get herself free of this impossible debt, which she did. Even this simplified procedure for those with limited income and essentially no assets was not easy - she had to provide extensive details of her living costs and demonstrate she had no appreciable assets.

Neither she nor I believe that people should be able to incur debt that they then escape easily. She lived in poverty for years trying to pay back an ever-increasing bill where often the late payment charges exceeded the amount she could repay in a month. Hers was exactly the sort of case the lender revelled in - they had her trapped with a debt that she could not reduce. Her financial circumstances were getting increasingly desperate and I had to join together with her other friends to cover some unexpected bills. However, there was nothing we could do to help her otherwise, as any financial support we provided would have gone straight to her creditor.

When she approached the creditor about the situation, they did everything they could to persuade her to take on an even bigger and less affordable loan to pay off the original one, so that the branch staff would earn commission on the new loan. She would have instantly defaulted on the new loan, but they didn’t care!

My friend asked the lender to write off the debt and was prepared to provide evidence that she did not have the means to make further repayments. By forcing her to get a Debt Relief Order, ultimately her creditor cost themselves a load more money pursuing her whilst the application process was ongoing, whilst her record was wiped clean (though she is subject to the same conditions as a discharged bankrupt for six years).

Winseer:
With Atheism being more and more popular in this day and age, the moral imperative to repay debts no longer applies. I would argue that this latter point is what motivates many firms to act in a dishonest manner both towards staff and the law. Fear of being caught doesn’t cut it. Moral imperative doesn’t cut it. Personal conscience MIGHT cut it. :neutral_face: - I’m sure there are some steadfast honest people out there in positions of power - somewhere… :cry:

As I recall saying elsewhere on Trucknet, the model of business that features in my legal training is that businesses generally do what is cheapest, not what is right. Unlike individuals, businesses are regarded as making decisions often on purely financial grounds, ignoring the moral considerations.

I wish companies and individuals would do the right thing, but too often they gamble that the chances of being caught out are low and take a chance.

I dislike the way that creditworthiness just means paying more for credit, rather than not being able to get any.
This just leads to more debts, especially in these days of pay cuts, stagnant wages, and an inflation rate way higher than the official figures reported.
I would rather starve than borrow money from one of these payday loan firms. If I can’t afford something out of cash in my pocket now, then I’m not going to be able to afford to repay cash+zillion percent interest rates next week unless I’m ‘expecting a massive windfall days away, and I’ll not live past the weekend unless I eat’… A rather extreme example that I don’t think many people are going to be finding themselves in just yet…

Harry Monk:

del949:
truckyboy, perhaps your boss should consider using employed drivers, that way he can be sure that the drivers of his vehicles are up to it.

Oh, I dunno, I was an employed driver when I did this…

but i waited until the next shift and blamed the agency chap :open_mouth:

Did you swerve around the agency guy on foot just coming to work? :wink:

truckyboy:
Winseer…a couple of points, there is no such thing as under insured…you either are…or you are not… unless you mean third party only…
Fraud…no such thing in these instances…fraud would only occur when the owner claimed from his insurance, and also from the agency…

At our company we employ a lot of agency, the damage to our equipment is astronomical, we have exhausted our claims via the insurers, and therefore have to pay for most damage with cash.
So good luck to the haulier concerned, who may be in the same boat, and wants to cover his costs, his first port of call is the agency.
Why should drivers damage a truck negligently, and expect someone else to foot the bill, even in this case the poster was blaming the posts on the pavement ■■?
We have had agency fill up trucks with red diesel, and NO you cannot tell VOSA and pay the difference anymore…the truck has to be drained, the filters, lines etc have to be cleaned out, thats a days work lost for that truck, and no redress to the driver or agency, if it was me, i would tell the agency…no more work for you…and it happened twice, 2 different agency drivers, weve had doors ripped off, tyres ripped to bits 3 on one trailer, side damage, rear damage, the list is endless, and the trucks and trailers are 3 yrs old, someone has to take the blame im afraid, and who else but the driver, if he damages the truck…he should pay and not expect someone else to.

Mildly persuasive arguments there Truckyboy. The clincher would be the increase in rate to the driver who will then need to buy his own insurance cover. The drivers who don’t do damage will see a pay rise those that do wont. But, as has been said on other threads, you pay peanuts you get monkeys. £7 an hour isn’t going to be enough is it?

£800 to fix a light cluster :laughing:

Seen you coming :grimacing:

Intersting thread this one, just to add my bit, we are a small tpt co, our insurance has gone through the roof, Now costing £5k each truck a year.We make the drivers pay for small damages via a £25 out of there week wages, so long as they have had a fair week, if they have no accidents or claims, they get a £500 bonus at xmas,We only take the excess, not the full amount, minors such as mirrors, mudflaps and lights we dont bother with.We have an amazing amount of damage done by poor driving, by men who think they are the best drivers in the world ! Note number two, now a lot of agency men are self employed, i would charge an agency for damage, as they in turn will just pass it on to there sub contractor, the agency man, and they should have insurance to cover this, if not, i would not hesitate to take them to small claims to get the money, This is not like a driver/ agency damage claim, when the agency driver is self employed, as part of there business they should be properly insured,Its a chain of contracts among businees each playing there part.

so to get this right richmond. you take £25 per week for a year (£1250), then give them a bonus of £500?
it’s hardly a bonus is it?
or does it work like this:
£1250 minus 4 weeks holiday £100 = £1150 + £500 bonus. so they get £1650 at christmas? providing they have no accidents.

Under the recent new regs on agency workers, would it be illegal to hold them responsible for damage if employed drivers were not equally held responsible.
Or would that only apply after the 12 week period ?
I know that some equality rules apply from day one of a contract.

richmond:
now a lot of agency men are self employed, i would charge an agency for damage, as they in turn will just pass it on to there sub contractor, the agency man, and they should have insurance to cover this, if not, i would not hesitate to take them to small claims to get the money, This is not like a driver/ agency damage claim, when the agency driver is self employed, as part of there business they should be properly insured,Its a chain of contracts among businees each playing there part.

Many agency drivers are self employed only because the agency refuses to give them work if they don’t go self employed and the extra remuneration is frequently a pittance.

Do you make any enquiries with the agencies you use as to the circumstances that their drivers became self employed, or are you just happy that you’re getting drivers on the cheap and there’s someone to whom you can pass the buck when there’s an accident ?

richmond:
Intersting thread this one, just to add my bit, we are a small tpt co, our insurance has gone through the roof, Now costing £5k each truck a year.We make the drivers pay for small damages via a £25 out of there week wages, so long as they have had a fair week, if they have no accidents or claims, they get a £500 bonus at xmas,We only take the excess, not the full amount, minors such as mirrors, mudflaps and lights we dont bother with.We have an amazing amount of damage done by poor driving, by men who think they are the best drivers in the world ! Note number two, now a lot of agency men are self employed, i would charge an agency for damage, as they in turn will just pass it on to there sub contractor, the agency man, and they should have insurance to cover this, if not, i would not hesitate to take them to small claims to get the money, This is not like a driver/ agency damage claim, when the agency driver is self employed, as part of there business they should be properly insured,Its a chain of contracts among businees each playing there part.

If your’re a small TPT Co and your way of managing damage is to just pass on the bill then your management skills/responsabilties are very lacking. You should be addressing these issues by assesment and training. But your’e not, you’re just passing the buck and the bill. Looks like in the chain of contracts you’re not living up to your side of it.
We have an amazing amount of damage done by poor driving, by men who think they are the best drivers in the world !

Thankfully they’re just damaging your equiptment, god help you if they hurt anyone.

self employed agency drivers get £1 per hour more get no holidays and have to sort out their own tax etc! i for one wouldnt pay and would go to court if needed you pay for the ‘driver’ to do the work set at a far reduced rate than if you paid a subbie to do the whole job with insurance!

this is why if i was to go self employed i would do it by myself not via an agency but i would charge what the agency does :open_mouth:

richmond:
Intersting thread this one, just to add my bit, we are a small tpt co, our insurance has gone through the roof, Now costing £5k each truck a year.We make the drivers pay for small damages via a £25 out of there week wages, so long as they have had a fair week, if they have no accidents or claims, they get a £500 bonus at xmas,We only take the excess, not the full amount, minors such as mirrors, mudflaps and lights we dont bother with.We have an amazing amount of damage done by poor driving, by men who think they are the best drivers in the world ! Note number two, now a lot of agency men are self employed, i would charge an agency for damage, as they in turn will just pass it on to there sub contractor, the agency man, and they should have insurance to cover this, if not, i would not hesitate to take them to small claims to get the money, This is not like a driver/ agency damage claim, when the agency driver is self employed, as part of there business they should be properly insured,Its a chain of contracts among businees each playing there part.

Sounds like you shouldn’t have any employees and should be relying on agency, 'cause I sure wouldn’t work for you.

Nobody sets out to damage anything, but it’s a very unpredictable world.

You make the profit, you take the risk, if, as a driver, I wanted to take the risk, I’d run my own ■■■■■■■ truck.

limeyphil:
so to get this right richmond. you take £25 per week for a year (£1250), then give them a bonus of £500?
it’s hardly a bonus is it?
or does it work like this:
£1250 minus 4 weeks holiday £100 = £1150 + £500 bonus. so they get £1650 at christmas? providing they have no accidents.

Would be interesting to know, but still doesn’t negate the fact that wages should be payment for work done @ agreed rate.

If you want to take anything, then you should be paying a bonus in the 1st place, not after the fact, ie £25 / week accident free bonus that can be stopped for an unspecified amount of time if the driver has a fault accident or causes negligent damage.

Then the driver could decide if he could afford to take the job based on the basic, if he gets the bonus, then it’s a bonus.

When I was on coaches, this was how it worked, we had an attendence bonus and an accident free bonus. If you were late or off sick (not for hols) then you lost your attendence bonus, you had a fault accident you lost your accident free bonus until any damage or excess was paid off or the boss thought you’d learnt by your ■■■■ up.

This is the only fair way, none of this ‘taking liability or excess out of wages’ ■■■■■■■■, you’re lucky to have drivers, I’d rather see your business go under than work for you, because without drivers, you’re just a manager of a truck storage yard :smiling_imp:

limeyphil:
so to get this right richmond. you take £25 per week for a year (£1250), then give them a bonus of £500?
it’s hardly a bonus is it?
or does it work like this:
£1250 minus 4 weeks holiday £100 = £1150 + £500 bonus. so they get £1650 at christmas? providing they have no accidents.

I read it that if a driver does any damage that they are paying for then it’s taken at a rate of £25 a week, not just an across the board £25 a week standard deduction, which would be illegal anyway.

tallyman:

limeyphil:
so to get this right richmond. you take £25 per week for a year (£1250), then give them a bonus of £500?
it’s hardly a bonus is it?
or does it work like this:
£1250 minus 4 weeks holiday £100 = £1150 + £500 bonus. so they get £1650 at christmas? providing they have no accidents.

I read it that if a driver does any damage that they are paying for then it’s taken at a rate of £25 a week, not just an across the board £25 a week standard deduction, which would be illegal anyway.

Yeah that’s how I read it. But surely it would only be illegal if the driver didn’t agree to it?

My take on it is if you want to employ humans you need to accept they make mistakes and factor it into your bussiness plan, if you can’t accept that then don’t employ humans

I don’t notice traffic planners being docked £25 a week for all the occasions when they send me to the wrong address, or the right address on the wrong day, or forget to book me on the ferry etc etc etc

stevieboy308:

tallyman:

limeyphil:
so to get this right richmond. you take £25 per week for a year (£1250), then give them a bonus of £500?
it’s hardly a bonus is it?
or does it work like this:
£1250 minus 4 weeks holiday £100 = £1150 + £500 bonus. so they get £1650 at christmas? providing they have no accidents.

I read it that if a driver does any damage that they are paying for then it’s taken at a rate of £25 a week, not just an across the board £25 a week standard deduction, which would be illegal anyway.

Yeah that’s how I read it. But surely it would only be illegal if the driver didn’t agree to it?

My take on it is if you want to employ humans you need to accept they make mistakes and factor it into your bussiness plan, if you can’t accept that then don’t employ humans

In their mind they aren’t. They are only employing drivers.

limeyphil:
so to get this right richmond. you take £25 per week for a year (£1250), then give them a bonus of £500?
it’s hardly a bonus is it?
or does it work like this:
£1250 minus 4 weeks holiday £100 = £1150 + £500 bonus. so they get £1650 at christmas? providing they have no accidents.

Let me clarify, my men get a £500 bonus at the end of the yr at xmas if they have no accidentsor major damage claims, if they do have an accident or claim i take "£25 out of there wages every week until we get to the insurance excess of £250,they get good wages, and bonus already and easy work, if they cant do it properly then they will pay,if your self employed and not insured i will sue you and win.I fear you may be missing the point of being self employed, im not at all interested in what deal you have with the agency, if your self employed, the chain of control will end with you or your ins company, thats why your self employed your an indepedant contractor, and the flip side of what ever deal you have with the agency is that the legal buck stops at you.Cant be that bad working here, we have a long waiting list !

i work through agency and get paid through an umbrella…if i did a day for you and damaged a truck,would you sue me :question:

No, i would go through the agency first, who in turn would pass it onto the umbrella company, who would then pass it onto your insurance company, .This would be the normal chain.I have to say at this point, we dont use agency men because they are not really suited to our work, but from a legal point of view, this is how i see it.The point i am making is, if you are a self employed agancy driver make sure you have got insurance to cover this or you could potentially end up with one heck of a large bill to pay, if your self employed your extra1 quid an hour is of no interest when at court for a damage claim, as a company or a sole trader you have to be insured. if not your open to a big claim if something goes wrong.