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RECOVERY RULES

7th February 2002
Page 38
Page 38, 7th February 2002 — RECOVERY RULES
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Which of the following most accurately describes the problem?

• I have a ramp-type breakdown vehicle of 7,500kg GVW equipped with winch, ramps, etc for the recovery of accident damaged vehicles. It may also draw a twin axle recovery trailer for a second damaged vehicle at an overall gross train weight not exceeding 11,000kg.

Can you tell me if the operation of this vehicle is subject to tachograph regulations? Also, are rear marker plates required on the vehicle and/or trailer, does the overall height have to be displayed in the cab, does it need an Operator's Licence and what are the driving licence requirements for the vehicle with and without the trailer?

• While you say the vehicle in question is used for the recovery of accident damaged vehicles you do not say if that is the sole use of the vehicle, or whether it only collect vehicles from the original accident sites.

The broad position regarding

tachographs is that as a goods vehicle the truck is subject to the EC hours and tachograph rules in EC Regulations 3820/85 and 3821/85. However, an exemption is provided, in Article 4 of Regulation 3820/85, to "specialised breakdown vehicles".

The European Court has ruled, in the case of Hamilton v. Whitelock [1988] RTR 23 that "a specialised breakdown vehicle is a vehicle whose construction, fitments and other permanent characteristics are such that it will be used mainly for removing vehicles that have recently been involved in an accident or have broken down for another reason. Such a vehicle is not subject to the tachograph requirements whatever use is actually made of it by its owner".

The first part of this means that these vehicles must mainly be used for recovery work in order to qualify for the exemption. Whilst the construction of the vehicle in question appears to come within the above definition, we cannot say here whether its use is within those terms.

The requirements in the Road Vehicles Lighting Regulations 1989 relating to the fitting of reflective rear markings apply to motor vehicles over 7,500kg plated design gross weight and trailers over 3,500kg plated design gross weight.

Regulation 10 of the Road Vehicles (Construction and Use) Regulations 1986 requires that a motor vehicle with an overall travelling height exceeding three metres must not be used on a road unless a height notice, complying with specified requirements, is

WAGES DEDUCTION

displayed in the cab and it can be easily read by the driver.

To drive the 7,500kg vehicle you need a category Cl licence and this entitles you to drive the vehicle when towing a trailer not over 750kg.

To tow a trailer over 750kg permissible maximum weight the driver will require a category C1+E licence with that entitlement granted after January 1,1997. A Category C1+E licence granted before that date is subject to a combination weight limit of 8,250kg.

A person who holds a category C+E licence (heavy artics and drawbar outfits) can also drive vehicles in category C1+E of any weight.

As a goods vehicle for hire or reward Olin connection with a business the vehicle will be subject to operator licensing laws. Without knowing all its uses we cannot say whether it would come within any exemption.

• We employed a driver for about 18 months until he left three weeks ago. We supplied him with a mobile phone for use in connection with his work. Before he left we found that his mobile phone bill was excessive due to his private calls.

He said if we showed him the itemised bill, we could then deduct the cost, about £250, from his wages. He also owed £150 which the firm had lent him towards an overloading fine. To recover our money we deducted £400 from his last two weeks' wages. He now says the £150 was our contribution towards the fine and the phone was supplied for business and personal use, and is threatening us with an industrial tribunal. If we take him to county court I am sure we will succeed but enforcing the judgment may be impossible. How do we stand ?

• Your main problem is that there does not appear to have been anything in writing between you and the driver relating to his responsibility for the use of the mobile phone, the payment of private phone calls and the loan to pay the fine. Neither is there any mention of any term in the driver's contract of employment dealin with deductions from wages.

Consequently, on the information given, it appears you have fallen foul of Section 13 of the Employment Rights Ac 1996 which prohibits deduction from wages. Section 13(1) states that an employer shall not make a deduction from the wages of a worker employed P him unless (a) the deduction is required or authorised by law 01(b) the worker has previously signified in writing hi: agreement or consent to the making of the deduction.

The £400 you have retained from his wages for the phone bill and the loan is clearly a deduction from the wages he should have received. Unless you had it in writing, signed by the driver, that you could make deductions from his wages for these reasons you are in breach of Section 13.

The driver can make a complaint to an industrial tribunal and, if it finds the complaint is well founded, it car order that you pay this money back to the driver.

Your only legal remedy is to sue the driver in county court for the money you say is due to you. But without anything in writing as to his liability to pay for private calls or proving that the £150 was a loan and not a girt, obtaining a judgment against the driver might not be as easy as you think. The court has to be satisfied, on the balance of probabilities, that you are right. The driver may gc to court and claim that you had agreed to pay for his private calls as well as claiming your loan was a gift. It is your word against his and the court may not find the case proved.

Even if you do obtain judgment the driver may not be able to pay. If that is the case and he has no assets for bailiffs to distrain, you might consider whether the expense of going to court is justified.

Whenever payment or receipt of money is involved between an employer and an employee it is always safest, for both parties, to set out the terms of it in writing. In many cases deductions may be the Only means of recovering money from an employee—but you need agreement in writing first.

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Organisations: European Court

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