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You carry the can for employees The law All employers

28th May 1998, Page 32
28th May 1998
Page 32
Page 32, 28th May 1998 — You carry the can for employees The law All employers
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Which of the following most accurately describes the problem?

are responsible for the actions of their employees in the course of their employment. In the civil courts an employer will have to pay damages to anyone injured as a result of negligence by an employee. All operators carry insurance to cover for negligent acts of their employees under road traffic, employers and public liability policies. In the criminal courts an employer can be fined for using a motor vehicle in a defective condition or when it is overloaded, simply because it is being driven by his employee on the operator's business. An operator can be fined in the criminal courts if a driver who is employed by him breaks the driver's hours or records regulations. Many operators think that by employing agency or casual drivers they can avoid that problem—in fact this creates new problems.

Who is the employer?

Is the agency driver employed by the agency or by the operator? The agency pays his wages, so isn't the agency his employer? The answer is almost certainly no; the employer will be the operator.

Most agency contracts specifically state that the operator is the employer. You must read the contract terms careful ly. They will almost certainly impose liabilities on the operator. In any case, the courts have held in a number of cases that the operator or the driver supplied through an employment agency is the employer for both civil and criminal purposes, because: The operator directs what the driver does; He pays the driver's wages (through the agency); When he is employed, the driver has to work exclusively for the operator; The driver gets paid on the basis of the work that he does.

The position of a casual driver is even more clear. He will be employed for a day or a week, or sometimes a weekend. The position of the casual driver is usually identical to that of employed drivers, except that his employment is not on a permanent basis. However, he is an employee. The casual driver often claims he is not an employee because he is self-employed. What this really means is that he wants to be paid in cash to avoid paying income tax! Wise operators will never pay casual drivers in cash on the grounds that the driver is self-employed.

The problems Has the driver any compensation to take up for reduced daily rests in the previous week? If a driver reduces his normal daily rest period from 11 hours down to a minimum of nine hours, he has to make up that reduction by the end of the following week. What has the driver's total driving been in the previous week? He can only drive 90 hours in a fortnight. He could have driven up to a maximum of 56 hours in the previous week. That would leave only 34 hours permitted driving in the current week, which might be wholly inadequate for your commercial needs.

The answer Before employing any agency or casual drivers, the operator should: 1. Make sure the driver shows you his tachograph charts for the current week and the last chart for the previous week in which he drove. He is obliged to keep that as a matter of law. If he cannot show these charts to you, contact the agency and find out who he worked for last; they should have the details. If they don't, don't employ him. 2. Before the driver starts driving for you, make sure he completes in writing and signs a simple form containing the information you need. The following is an example: Give exact details of your last weekly rest period • Start date • Finish date Total hours' rest hrs • Have you any compensation for reduced weekly rests to be taken in respect of work over the past three weeks? If so, give details • Have you any compensation to be taken in respect of reduced daily rests last week? If so, give details • What was your total driving time in the last week ending midnight Sunday (date).

• Give the names and addresses of your previous employers in the past three weeks. Operators should ask the driver to sign a form containing this request with words such as: "I confirm that the above details are true. I confirm that I will notify you if I obtain any other employment which involves the (driving of an HGV or PSV while I am employed by you." Few employers and drivers are aware that the driver has a legal obligation to advise his employer of any other employment involving driving an HGV or PSV. Failure to notify is a criminal offence punishable by a magistrates court with a fine up to £2,500.


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