Charges for damage

[rob_k]

robroy:
Ok RK thanks for that. (And everybody else for the feedback)
To answer some of your points, well from MY own part personally in all this cack in refusing to sign…

I did clearly tell my boss why I objected (verbally) Unfortunately I did not know I was supposed to put my objection in writing as a set procedure, and was not told so. (and afaik neither did any of the others who refused to sign it)

About a month later.I took some kind of h&s type course bs to qualify me to go into a certain customer’s site.
This was done by one of the bods sent up from head depot.
After the course it came into our general conversation that I was one of the few that had not signed up to this revised contract.
He said …
‘‘I’ll explain the reasons to you for charging drivers for damage’’…
and went on to give me a sob story about habitual damage type drivers, and what it was costing in terms of their insurance,.and that basically the likes of me and a few others need not worry.

Then conversation went along the lines of…

‘‘So do you now understand why we want you to sign’’

Me…‘‘Yes’’

‘‘Do you see it from our point of view’’

Me…‘‘Yes I suppose in a way’’

‘‘So will you now sign it’’

Me…‘‘No’’

And that was it until.about 5 yrs later (now) they are charging some drivers for damage at our depot, furthermore none of which I would describe as habitual damage drivers.

There’s nothing specifically stated that your grievance must be in writing, it just says that you have to make one. As you can imagine, a verbal grievance can be denied that it ever happened and then it becomes your word against theirs which significantly weakens your position should it come back to haunt you at a later date (which it has). That’s not a position you want to be in, hence why these things ALWAYS need to filed in writing and sent recorded delivery so you have a complete paper trail at hand for when the inevitable denials over who said what commence. But hindsight and all that… .

Can you remember what your manager replied when you told him you didn’t accept the new terms and would not be signing them? Surely he didn’t just say “OK” and then do nothing? I find that unlikely. Also, they have 1 month to issue you with your new contract after informing you of the changes. Did that take place? If so, what did you do with your new contract when it was given to you?

The fact that the new contract came into effect 5 years ago is going to leave you (and specifically your colleague) in a weak position should it end up at a tribunal as it’s highly likely your manager will deny or conveniently have “no recollection” of you (collectively) filing a grievance and the court are unlikely to accept your ignorance of the correct grievance procedure as a defence (see Robinson v Tescom). There’s a high chance that the tribunal would find in your company’s favour based on this alone because still working there 5 years after the new contract came into effect will be seen as implied acceptance of the new terms.

In my opnion (and it is only that as I’m not a lawyer so feel free to ignore etc) your saving grace probably hinges on whether the changes to the contract were deemed to be fair and reasonable, but without knowing what exactly the damage clause says it’s impossible to form an opinion. Can you post the excerpt from your contract and also look for any clause in your original one about the company being able to make variations, for example?

Based on what you’ve said thus far I think you’re going to struggle to make it stick. Your collegaue should definitely write to HR/wages asking what authorisation they have to make deductions and see where that leads first, but I think he/you should prepare yourself for your manager denying all knowledge of your verbal grievance which is going to make things difficult as it will become he-said-she-said and that isn’t going to get you anywhere in a court.

ACAS are definitely the people you need to speak to though. They deal with this exact stuff every day of the week and will probably be able to tell you within seconds of you presenting all the facts whether it’ll stick or not.

Out of interest what was the severity of the damage to the trailer? How much have they billed the driver? Did they provide him with a breakdown of the costs? Over what period are they making the deductions? Was it a one-off deduction or is it going to be a set amount each week/month? ACAS are likely to ask these kind of questions as there are rules that companies must follow when making wage deductions.

[commonrail]

Winseer:

commonrail:
I worked for a firm that paid a compliance bonus.
It was only ever deducted from weak people though.
I had my own contract.
No bonus on Friday…no driver on Monday.
Worked splendidly,for me.

I’ve worked at places via agency - that were more than happy to turn over a driver a week, every week!

Promise you the Earth, don’t deliver come payday, driver walks, take on new one without explaning that the headline hourly rate was something along the lines of the “Stobart Formula”
where if you don’t work on Eurotramps, don’t work Nights, and don’t work Saturdays and Sundays - you end up with minimum wages, and no bonus payments…

I’ve only ever worked on general…where the t&c is that ■■■■…i’m in control

[commonrail]

Being in control is most important to me

[rjan]

Rob K:
Clarity is needed on 1) what the exact wording is in the relevant section of the contract and 2) what process the objecting driver took in refusing to accept the new terms and 3) was there a clause in the original contract allowing the employer to make variations to the contract of employment (many do have this)?

Even with a term that purports to allow the contract to be varied, the whole contract cannot be entirely subject to unilateral variation at will by the employer (so that effectively the terms are whatever the employer says they are at any time).

If the wording of [1] basically says that the company reserves the right to deduct the cost of damage done to company equipment from the driver’s wages, without any mentions of limitations, liability nor how/when the deducations will be made, then in my opinion you would have a strong case because that would be considered an unreasonable and unfair change to the original contract of employment, thus a breach of contract. If, on the other hand, the company can demonstrate that (for example, like Rjan says) the level of damage being caused by the drivers it at such a level that the costs are putting the company in jeopardy financially, or, the deductions are limited to x amount and/or deductions are only made after a full investigation and review of dashcam footage to prove that the driver was liable (to give a couple of examples) then a tribunal could easily rule that the changes are deemed to be reasonable and fair.

I should clarify that I was speaking in very general terms about impending bankruptcy being a potentially fair reason to dismiss employees (whilst offering to re-hire them on new terms). There would have to be material proof that the company was persistently in the red or headed that way imminently (not just that profits are not as healthy as an owner would like them to be). I wouldn’t normally expect the damage bill to be so substantial.

What did the driver do exactly in refusing to accept the new contract? Was this refused by submitting a formal grievance (verbal or written) to the manager with a discussion or meeting taking place to see if an agreement could be reached, or was it just a vocal “I’m not [zb] signing it, they ain’t deducting [zb] all from my wage lololololol” announcement to the 18 year old transport clerk at 6am on Monday morning whom has nothing to do with it? I suspect it was more likely to be the latter than the former, in which case the company has rightly assumed all drivers have accepted the new contract. As Rjan says in his earlier post, a signature is not required and acceptance of the contract is automatically implied after a reasonable period of time if a grievance is not submitted. The fact that the company has not replied to the alleged grievance(s) suggests to me that they don’t have any evidence of one/any being submitted . This will significantly weaken your case at a tribunal.

I said a signature is not required in law, but I didn’t say that a grievance had to be submitted, nor is it the case that silence is necessarily an acceptance in law either. The question is whether the firm has, to all outward appearance, sought consent and received it? Clearly, if you interact with a manager on a daily basis, he was the one who handed you the changed terms, and nobody says a peep to him (either on the spot, or the next time they see him after they’ve read the terms), then 6 months later he’s probably entitled to think that there wasn’t a problem.

But if the clerk is given the forms to hand out, and every driver expresses outrage and rejection, then it’s not reasonable for a manager to think that the terms were accepted - if the manager knows nothing of the reaction of the drivers, then that is only due to his own failure to enquire with the person to whom he delegated the task of providing the notice, it’s not because he has followed a reasonable process of seeking consent and receiving it.

You cannot just keep quiet and carry on working for a company on your old (expired) terms of employment if you don’t agree to the new contract.

No, you’re looking at this completely the wrong way. Existing terms don’t expire until one side or the other gives notice of dismissal/resignation. If the terms are to be changed, it’s for the company in the first place to show that they sought consent and received it. Silence could be interpreted as acceptance in some situations, but silence is not an acceptance by default.

(Robinson v Tescom [2008] UKEAT 0567_07_0303, [2008] IRLR 408)

That case involved a salesman who first said he intended to accept the new terms provisionally for a period of 12 months, and said so explicitly, and then almost immediately went back on it and insisted on working only under the old terms. I don’t see any easy analogy with what you contend.

[rjan]

robroy:
Ok RK thanks for that. (And everybody else for the feedback)
To answer some of your points, well from MY own part personally in all this cack in refusing to sign…

I did clearly tell my boss why I objected (verbally)

Unfortunately I did not know I was supposed to put my objection in writing as a set procedure, and was not told so. (and afaik neither did any of the others who refused to sign it)

About a month later.I took some kind of h&s type course bs to qualify me to go into a certain customer’s site.
This was done by one of the bods sent up from head depot.
After the course it came into our general conversation that I was one of the few that had not signed up to this revised contract.
He said …
‘‘I’ll explain the reasons to you for charging drivers for damage’’…
and went on to give me a sob story about habitual damage type drivers, and what it was costing in terms of their insurance,.and that basically the likes of me and a few others need not worry.

Then conversation went along the lines of…

‘‘So do you now understand why we want you to sign’’

Me…‘‘Yes’’

‘‘Do you see it from our point of view’’

Me…‘‘Yes I suppose in a way’’

‘‘So will you now sign it’’

Me…‘‘No’’

And that was it until.about 5 yrs later (now) they are charging some drivers for damage at our depot, furthermore none of which I would describe as habitual damage drivers.

In my view Robroy, in those circumstances you’ve clearly rejected the terms and they are not entitled to charge for damage.

[rob_k]

Rjan:

Rob K:
You cannot just keep quiet and carry on working for a company on your old (expired) terms of employment if you don’t agree to the new contract.

No, you’re looking at this completely the wrong way. Existing terms don’t expire until one side or the other gives notice of dismissal/resignation. If the terms are to be changed, it’s for the company in the first place to show that they sought consent and received it. Silence could be interpreted as acceptance in some situations, but silence is not an acceptance by default.

You’ve quoted that out of context. What I actually wrote was "You cannot just keep quiet and carry on working for a company on your old (expired) terms of employment if you don’t agree to the new contract. By doing so you are implying that you accept the new terms of employment and agree to be bound by them. If you don’t agree to them you have to submit a formal grievance which puts the ball in their court over what to do.

This is backed up by the first link I posted. If you sit on your arse and hope the problem goes away when your company does nothing over your refusal to accept the new terms then after a “reasonable period of time” it is implied that you have accepted them, especially when considering the time period that’s elapsed in robroy’s specific case .

If “it’s for the company in the first place to show that they sought consent and received it” as you claim (and I’ve no reason to doubt it as you generally know what you’re talking about from what I’ve seen) then that would strengthen his case as the comapny would be unable to provide any evidence that consent was received. Out of interest, do you have an official source for that statement please as I’d be interesting in reading more about it?

I hope the driver doesn’t roll over when the going gets tough and just accepts the deduction as I’d like to see how this pans out and also what ACAS’ opinion on it is.

My feeling is that it will play out something like this :

1. driver writes to HR/wages dept to point out the unauthorised wage deductions and non-acceptance of contract.
2. HR/wages will contact manager to point out driver hasn’t signed contract.
3. driver will be collared by manager upon return to yard and told to sign contract or be sacked and offered job on new contract.
4. driver refuses both.
5. driver sues company for breach of contract.
6. ■■?
7. profit!

[juddian]

At this point in time, just to upset the few here who maybe have vested interests, i’ll mention one word.

UNION

When this new contract was first issued, with the recession still being felt and not so many jobs to be had so the company took advantage of the situation, then a proper union would have fought it, and when a solid union is in place then unfair practices like this don’t get forced through.

I have every sympathy with operators who suffer negligent damage by usually regular culprits (people who are not good colleages for the better staff either because they put all jobs under threat), but that sympathy evaporates when such drivers almost always show what they are within months of starting the job, and the company through complacency or negligent management don’t take the necessary action required to sort the wreckers out, right up to getting rid of them which is quite easy within the first 2 years.

I’ve even known an agency driver banned from one place due to regular damage, only to be given a full time job after applying and, amazingly, carrying on just the same , what did they think would happen

[yourhavingalarf]

There are some…

Lengthy ideas about what is and what isn’t legitimate about contract law and other related subjects.

Bottom line, what are you going to do if your company deducts money from your wage for alleged damage?

Once the dosh has been taken you only have limited means to retrieve it.

Juddian is right, none of this crap happened when we had unions that knew how to bark and bite.

[own_account_driver]

Er, isn’t amongst all the armchair lawyering, the obvious being missed in that depending on the height of the vehicle most likely the local authority or landowner is responsible for not cutting back the tree.

[own_account_driver]

Santa:
Some firms, and I worked for one for a while, pay a monthly bonus which is forfeit if there is any damage. This gets around the idea that they are deducting wages because they are simply not paying a bonus.

This has always been my understanding as the only watertight way to pass any financial burden of damage on to drivers.

It’s not just trucks there’s thousands of company vans and vehicles out there and I’m pretty sure everything but the above has always been thrown out of court as an unfair contract.

[robroy]

Rob K:
There’s nothing specifically stated that your grievance must be in writing, it just says that you have to make one. As you can imagine, a verbal grievance can be denied that it ever happened and then it becomes your word against theirs which significantly weakens your position should it come back to haunt you at a later date (which it has). That’s not a position you want to be in, hence why these things ALWAYS need to filed in writing and sent recorded delivery so you have a complete paper trail at hand for when the inevitable denials over who said what commence. But hindsight and all that… .

Can you remember what your manager replied when you told him you didn’t accept the new terms and would not be signing them? Surely he didn’t just say “OK” and then do nothing? I find that unlikely. Also, they have 1 month to issue you with your new contract after informing you of the changes. Did that take place? If so, what did you do with your new contract when it was given to you?

The fact that the new contract came into effect 5 years ago is going to leave you (and specifically your colleague) in a weak position should it end up at a tribunal as it’s highly likely your manager will deny or conveniently have “no recollection” of you (collectively) filing a grievance and the court are unlikely to accept your ignorance of the correct grievance procedure as a defence (see Robinson v Tescom). There’s a high chance that the tribunal would find in your company’s favour based on this alone because still working there 5 years after the new contract came into effect will be seen as implied acceptance of the new terms.

In my opnion (and it is only that as I’m not a lawyer so feel free to ignore etc) your saving grace probably hinges on whether the changes to the contract were deemed to be fair and reasonable, but without knowing what exactly the damage clause says it’s impossible to form an opinion. Can you post the excerpt from your contract and also look for any clause in your original one about the company being able to make variations, for example?

Based on what you’ve said thus far I think you’re going to struggle to make it stick. Your collegaue should definitely write to HR/wages asking what authorisation they have to make deductions and see where that leads first, but I think he/you should prepare yourself for your manager denying all knowledge of your verbal grievance which is going to make things difficult as it will become he-said-she-said and that isn’t going to get you anywhere in a court.

ACAS are definitely the people you need to speak to though. They deal with this exact stuff every day of the week and will probably be able to tell you within seconds of you presenting all the facts whether it’ll stick or not.

Out of interest what was the severity of the damage to the trailer? How much have they billed the driver? Did they provide him with a breakdown of the costs? Over what period are they making the deductions? Was it a one-off deduction or is it going to be a set amount each week/month? ACAS are likely to ask these kind of questions as there are rules that companies must follow when making wage deductions.

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 ■■■■ 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.

[kcrussell25]

Own Account Driver:

Santa:
Some firms, and I worked for one for a while, pay a monthly bonus which is forfeit if there is any damage. This gets around the idea that they are deducting wages because they are simply not paying a bonus.

This has always been my understanding as the only watertight way to pass any financial burden of damage on to drivers.

It’s not just trucks there’s thousands of company vans and vehicles out there and I’m pretty sure everything but the above has always been thrown out of court as an unfair contract.

There are plenty of places trying it. I have walked out of a couple of interviews due to being told to sign a form saying I will pay for damage. 1 tried to tell me I wouldn’t have to but needed to sign the form. Didn’t seem bothered that I refused so guess there are plenty who will.

To be clear I don’t believe in not taking care and admit I lost a couple of trailer mudguards reversing when I started but my attitude is if I want to take the risk (paying for damage) I want the rewards, not just the basic wage.

I think it is possible to recover costs from wages for things like this but it must be done properly with it clear in the contract of what you are liable for, how it will be decided and how much. None of which would apply in the case here.

[franglais]

As a bit of an aside, maybe general cases not this specific case:
Companies run risk as part of their business model dont they? They take reward for investing money that can be lost or profits gained. By off loading some of the risk (driver caused damage) they clearly intend to increase their chance of profit making. That is what we have here. All a bit obvious so far? Be the risk/cost from increased bills for damage or increased insurance, much the same thing. the company is reducing its costs.
So the risk is still there, but has been transferred across to the drivers. A company would only consider taking on extra risk, or extra potential expense in exchange for an increase in rates wouldnt it? Do drivers being put on these schemes have an increase in pay to cover their potential extra liability? If not, isnt that unfair? Im sure a "barrack room lawyer" would make a lot of that, but I aint going there!
Maybe the idea is that drivers are too blase and careless in their attitudes to damage? Monetary penalties are needed to get them to drive better? As Juddian rightly says that could well be laid at management`s door for employing idiots. Slack management can lead to a downwards spiral in all ways. Another example could be the idea of others, “taking a refund out of the diesel tank”. There is a sort of rough justice feel to that, but who woud want to work long time in a company where management/workers are always niggling if not outright fighting? Not pleasant at all, and likely to get worse.
I would suggest that offering a zero-damage bonus may be a better solution? An incentive to take more care may be needed for the less conscientious, but not an open ended risk for employees.

Back to RobRoy and the original question: lots of interesting posts offered up, but it looks like a can of worms, and only a professional can give the best advice.
The posts should have helped by laying out the questions and issues to discuss with that person.

EDIT. Posted at same time as some of the above making the same points. I

[dipper_dave]

I honestly think truckers would make great lawyers, maybe it’s our forward planning, problem solving skills that help. Or just Google.

Anyway hope you will get this resolved Rob, be nice if your employer produced the contracts again as this would reset the clock and also be an admittance that the previous contract applies, doubt they would be that daft though.

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.

[vid]

A couple of Qs to the OP, you say the Contracts were changed 5 years ago, but it was only recently that this deduction was enforced?

There has been no damage whatsoever between the period of contract change and the first deduction made?
Just the one driver has had deductions made from his wages?

Someone new in the management chain looking to make a name for him/ her self?
Maybe even bullying of one particular driver?

[robbo99_1]

In a non unionised work place the employer has the scales tipped very much in their favour. As said, if a change of contract is brought in and the worker disagrees then he/she can work under protest by putting it in writing. A less scrupulous employer can make it difficult for that employee in many ways so that he/she either goes with the new contract or goes out of the gate.

[rjan]

Rob K:

Rjan:

Rob K:
You cannot just keep quiet and carry on working for a company on your old (expired) terms of employment if you don’t agree to the new contract.

No, you’re looking at this completely the wrong way. Existing terms don’t expire until one side or the other gives notice of dismissal/resignation. If the terms are to be changed, it’s for the company in the first place to show that they sought consent and received it. Silence could be interpreted as acceptance in some situations, but silence is not an acceptance by default.

You’ve quoted that out of context. What I actually wrote was "You cannot just keep quiet and carry on working for a company on your old (expired) terms of employment if you don’t agree to the new contract. By doing so you are implying that you accept the new terms of employment and agree to be bound by them. If you don’t agree to them you have to submit a formal grievance which puts the ball in their court over what to do.

Indeed, and what I say is that you’re putting the cart before the horse in referring to “old expired terms”. The old terms only expire if the employer has sought and gained consent for the change (or dismissed the employee). Simply issuing varied terms and turning a blind eye to verbal complaints is not gaining consent.

This is backed up by the first link I posted. If you sit on your arse and hope the problem goes away when your company does nothing over your refusal to accept the new terms then after a “reasonable period of time” it is implied that you have accepted them, especially when considering the time period that’s elapsed in robroy’s specific case .

That’s not the case. If you have expressly refused the new terms, then it is never implied that you have accepted them (unless there is another intervening event, like an actual deduction occurs that you also acquiesce to). In Robroy’s case, we now learn, his refusal to accept the new terms was made perfectly clear to his manager, and that he has never accepted a deduction.

If “it’s for the company in the first place to show that they sought consent and received it” as you claim (and I’ve no reason to doubt it as you generally know what you’re talking about from what I’ve seen) then that would strengthen his case as the comapny would be unable to provide any evidence that consent was received. Out of interest, do you have an official source for that statement please as I’d be interesting in reading more about it?

I don’t have an official source to hand. It is a basic principle of contract law, that there is “offer and acceptance”. Acceptance can be by conduct, and although the courts are extremely loath to allow it, silence can be a form of acceptance if in the circumstances a reasonable person would think that the absence of an objection and a continued pattern of dealing implied acceptance (for example, if a supplier issues a new price list, and a regular customer accepts that he has received the price list and continues to accept a regular supply of goods). But there are also exceptions - for example, if the price list was unclear or didn’t clearly identify swingeing increases in certain prices, then the court might say that there was inadequate notice given of the change.

But you are going too far when you say that refusal has to be in writing or to a specific person in the company - in other words, that a driver has to go out of his way and make a clear fuss about the matter. The obligation is not on the driver to refuse terms. It is on the employer to gain acceptance for them, and prove that he has gained that acceptance.

And in an occupation like driving where most communication is verbal and drivers aren’t engaged in written communication with managers and colleagues as a matter of routine and aren’t expected to be sophisticated in covering their arses, the courts will give more evidential credence to a verbal rejection than they would if, for example, an employed lawyer in a law firm who claimed to have verbally rejected terms (where the absence of any written proof of rejection or complaint might seem more suspect and contrary to the norms and likely behaviour of someone in that occupation).

I wouldn’t like to state hard general rules because there can always be very fine subtleties about a situation that may change the interpretation of it.

But I gave the contrasting examples of a driver who receives notice of new terms and simply goes home and complains to his wife about them but says nothing at work to anybody (even when the deductions start happening), and front-line supervisors and managers (who perhaps interact with the workforce on a daily basis, and have asked other colleagues whether there have been complaints and have taken the general temperature of the workforce about the issue, even if they haven’t asked each specific individual worker) then quite reasonably take the view that the workforce has acquiesced to the change.

And on the other hand a driver who immediately says to the person who gave him the terms “I’m not having that”, and later on the first occasion of any deduction raises a grievance. The latter case is not an instance of silence - it is express rejection, and once the employer acts against the initial rejection and withholds money, the driver pursues a grievance to get his full earnings paid.

And the written terms given to the driver must also be clear in expressing the employer’s intentions. If the employer says clearly “you are being given notice of dismissal, but we will re-hire you on new terms after date X”, basically giving drivers a clear ultimatum, then turning up for work after that date (and lodging no complaint) may be implied as acceptance. An employer does not need consent to dismiss an employee (although the dismissal may still be unlawful and actionable at a tribunal).

But by the same token, simply threatening an unfair dismissal could land the employer in hot water, so they won’t normally give notice of dismissal and offer to re-hire drivers, they’ll instead try to seek consent for a variation in the existing terms, and merely continuing to work (which you are entitled to do anyway under the old contract) is not itself an implied acceptance of the variation.

There is again an exception though that if you have less than 2 years continuous service with the firm, you can be given your notice and dismissed at any time, for any reason (provided it’s not a specific unlawful discriminatory reason). So for employees with less than 2 years continuous service, employers can issue an ultimatum and impose changes unilaterally within the 2 year period (unless there is a union in place that is willing to take industrial action over the issue).

In the Robinson case that you referred to, the travelling salesman made clear his disgruntlement at the change (which enlarged the area of the country he was responsible for covering), but following a series of meetings he did in fact agree to them for 12 months as a way of compromising with management (who assured him that travelling to the new areas, where they had no clients and didn’t expect to gain any, would only be a remote and infrequent possibility). He ended up in lumber because he then tried to go back on what he’d agreed.

I hope the driver doesn’t roll over when the going gets tough and just accepts the deduction as I’d like to see how this pans out and also what ACAS’ opinion on it is.

My feeling is that it will play out something like this :

1. driver writes to HR/wages dept to point out the unauthorised wage deductions and non-acceptance of contract.
2. HR/wages will contact manager to point out driver hasn’t signed contract.
3. driver will be collared by manager upon return to yard and told to sign contract or be sacked and offered job on new contract.
4. driver refuses both.
5. driver sues company for breach of contract.
6. ■■?
7. profit!

I suppose the question is “profit for whom?”

[rob_k]

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.

[rob_k]

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.

[basket]

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)