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This week's answers have been supplied by a team of lawyers from Barker Gotelee of Ipswich, Suffolk.

8th July 2004, Page 38
8th July 2004
Page 38
Page 38, 8th July 2004 — This week's answers have been supplied by a team of lawyers from Barker Gotelee of Ipswich, Suffolk.
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Which of the following most accurately describes the problem?

Must I call dme?

I have been working for the past couple of years as a self-employed relief driver and for an agency when my work is quiet. When the Working Time Directive comes into force will I be exempt in the same way as an ownerdriver if I can find enough self-employed work? My work for the agency is on PAYE but, as an ex owner-driver, I am still a sole trader and VAT-registered.

Robert Fairbrother Self-employed relief driver

This issue will affecting many drivers. If you can fulfil the definition of 'self-employed driver under the working time rules which come into force on 23 March 2035 then the directive will not apply to you. Otherwise you will be subject to its benefits and obligations.

To qualify as a sell-employed driveryou will have to a) be entitled to work for yourself and not be tied to an employer by an employment contract or any other similar type of relationship; b) be free to organise your own working activities; c) have an income dependant on profit after deduction of your overheads; and d) be free to work for several customers.

The important thing is that drivers are not selfemployed simply because they call themselves such The more a driver is tied to one 'customer' who dictates how and when work will be carried out, the more that customer may become an employer. In order to avoid any suggestion that in reality you are an employee, not self-employed, you should strive to work for several customers, decide how you are going to work, run your own profit and loss business accounts and avoid situations where you are tied to one customer.

In your question you mention owner/drivers. Even workers in that category will have to be careful if they are tied to one business for whom they work; some arrangements' between owner/ drivers and businesses for whom they work

exclusively or almost exclusively can amount to a sham to avoid 'employed' status and, in reality, they may be regarded as employed, not selfemployed, for tax and working time purposes.

Penalty charge I drove into Lymm Truckstop in Cheshire recently, but could not find any parking so I spent the night in a nearby layby, which is not part of the truckstop's property In the morning, I drove into the truckstop to use the facilities and when I was leaving I was charged £7 for overnight parking. I protested, pointing out that I had not stayed in the truckstop overnight, but at an adjacent layby. The company offers the first two hours free and I had not been inside for anything like that time. How do I recover my money?

South Wales driver Name and address supplied

It is unclear why you were charged, or indeed why you made the payment. You can think of parking as a type of contract for a service provided. You have paid fora service you have not received.

The truckstop needs to be asked on what basis it says you were parking overnight in an area subject to the £7 charge. Unfortunately, as payment has been made and the sum is so small, it is not worth pursuing court action.

If you have not already written to the truckstop then do so. It may be that the adverse publicity of featuring in the press is more likely to lead to results!

Now payment has been made it will be hard to recover it otherwise.

Matters of status

What is the status of owner-drivers working for a quarry company in which all the vehicles are run in the employer's livery? I am representing owner-drivers working for a company which instructs the drivers on what to do and when to do it, but will not give them a written contract. Are they, in fact, employees rather than owner-drivers?

When loads are planned, the company will not work out mileages or how long the job will take. Yet if a driver complains that the work cannot be done legally he is told someone else will be found to do it if he won't, and he ends up with no work for a couple of days.

Name and address supplied Just because you describe the quarry company as an employer does not of itself mean they are employers and the owner/operators are employees. The owner-drivers presumably have their own 0-licences and the vehicle discs are in their cabs. It sounds as though they are providing both drivers and vehicles to the quarry company— if this is the case then the quarry company is subcontracting in haulage services, because each owner-driver is providing driver plus vehicle. Each owner-driver must therefore avoid performing any act compromising their own 0-licence.

The law says the user of the vehicle is the driver where the vehicle is owned by him or is possessed by him under a hire agreement. Otherwise the driver's employee is the user of the vehicle. In either case the user needs an operator's licence. It sounds as though your "owner/drivers" are in fact operators and not employees in any way.


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