LEGAL DRIVER'S RIGHTS
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lz-The right to say
In an important test case a driver who refused to take out an unsafe vehicle and was dismissed has recently won compensation. Under what circumstances are drivers entitled to refuse to drive? Mike Sherrington investigates.
Hauliers, unions and trade associations are united in supporting the stand of a Leeds-based driver who recently received massive compensation after being sacked because he refused to take out a vehicle which he believed was in a dangerous condition,
However, views differ widely on the effect the action will have on the industry and the extent to which drivers are being bullied into taking out vehicles they know to be unsafe.
Neither the driver nor his company can be named because it is understood that he has signed a compromise agreement which prohibits the naming of either party. But the Transport and General Workers Union believes that the settlement could herald a breakthrough and will stop drivers being forced to take out vehicles they know to be unsafe.
Industrial tribunal
Danny Bryan, TGWU national secretary for road haulage, says: "The case is important because the driver in question had been working for the firm only for a matter of weeks, Normally it is impossible to bring an industrial tribunal case unless you have been employed for two years, but clause 44 of the 1996 Employment Rights Act proves the exception. [t would have been even better if the case had come to court because it would have established case law, but bosses don't pay up unless they have to, so we are confident of winning future similar cases," he adds.
Bryan suspects that bullying is rife in the industry. He believes hundreds of drivers are daily forced to take vehicles out which are either dangerously loaded, in bad mechanic-al condition, without an MoT or without the operator having an 0-licence. And drivers are constantly being asked to work longer hours than they are permitted by law.
"But in so many cases drivers are scared to complain because they fear they will be sent down the road. The TGWU is mounting a campaign to stop this bullying and if drivers are unhappy "they should contact the union first and let us take up their case so they do not have to become martyrs," says Bryan.
And while admitting bullying is endemic to the industry, Douglas Curtis, spokesman of the United Road Transport Union, has some sympathy with the driver who wants to keep his head down, "The problem with taking industrial tribunal action is that it takes so long to come to court. A driver could be out of work for up to a year before a hearing takes place and for many, who have a family and a mortgage to support, this is too long a period. It is much better that matters can be settled industrially so that drivers do not have to go through this trauma," he says.
Curtis adds: "Bullying and forcing people to break the law is not confined to the small operators. It is also rife in big companies, especially where they buy up smaller outfits and keep the existing management."
These views contrast sharply with those of the trade associations. Ruth Potts, employment manager of the Road Haulage Association, says: "While we realise that there are some operators who run vehicles without MoTs, insurance or 0 licences and there are some abuses of working hours, these practices are carried out by only a handful of cowboy operators. The vast majority of firms operate not only within the law but at standards higher than are required by law."
And Penny Mordaunt of the Freight Transport Association agrees; "Most of the industry is operating at very high standards although there are a few rogue operators," she says. "In fact, the industry believes in selfregulation rather than having to go to court. This is why we have launched initiatives like the Good Lorry Code which already has more than 80 members ranging from the Boots, Safeways and Tescos of this world to small one-man and a van operators.
"GLC vehicles carry distinctive green stickers inviting the public to comment if they notice anything good or bad about the vehicle, how it is loaded and the condition it is in. So far we have received more than 10,000 calls with around 33% being complimentary.
"If a problem is reported we notify the operator who has 21 days to put it right. It is schemes like this which will improve the status of the industry," she adds.
And operators are also aware that they have a responsibility to keep their fleets in good order. Perhaps potentially the vehicles which can wreak the most havoc on the roads are those carrying hazardous materials.
FTA standards
Peter Newport, logistics director of chemical carrier Ellis and Everard, points out that there is only one death every two and a half years caused by hazardous goods vehicles. "We operate a policy of never running a vehicle more than six years old and have regular routine maintenance carried out to FTA standards on our vehicles. If a driver reported a problem with a vehicle we would take what he said very seriously because prevention is much better than having to clear up the mess afterwards."
Debbie Wynn, spokesperson for international carrier Parcelforce Worldwide, says; "It would be very odd if a driver was victimised because we have a very strong union presence here. In fact, if a driver reports a fault, the vehicle is immediately taken out of service even if it is loaded. It is then repaired and not allowed back on the road until it has been approved by two different people. Then if the driver still finds the vehicle faulty he fills in another report and the whole operation starts again."
This procedure complies with strict guidelines drawn up by the Department of Transport and has been in operation for 10 to 15 years. However, the unions are asking how many other firms work to these guidelines. Danny Bryan says until they do it will invariably be the driver who takes the brunt of any blame for faulty vehicles and in many cases the operator will escape scot-free.
NEW LABOUR LAW
• The next major labour relations act to be published will probably be introduced in 1999.
However, as a prelude to that, a White Paper: Fairness at Work, is due to be published in the first half of this year.
A Department of Trade and Industry spokeswoman says that the paper will not automatically follow the line taken in the 1996 Employment Rights Act because there has been a change of Government.
The Government is remaining tight-lipped about the contents of the paper and the DE was unable to comment whether the unsafe working environment clause will be changed. The paper will generally strive to provide decent working environments and will contain a clause which will give union recognition to firms where more than 50% of the workforce want it.
CURPFNT LABOUR LAW
The 1996 Employment Rights Act encompasses many previous British and European regulations including the 1993 Trade Union Employment Rights Act Paul Stephenson of the Labour Research Department says that this act has been used by drivers on South East Trains who refused to drive because the units had faulty couplings.
The act is probably the only one which allows people to take an industrial tribunal case if they have not been employed by the same firm for two years. In order to win they have to reasonably believe that their working environment is unsafe either to themselves or to others. Individuals can be advised by a union but must bring their own action, the union cannot do it on their behalf.
Copies of the act are available from the Stationery Office head office in Norwich (01603 622211) or from regional offices around the country.
TGWU members who believe that they are being asked to take out unlawful vehicles should contact their local offices or the head office in London (0171 828 7788)