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Its WAR
My son (not a professional driver, but working two or three times a week when required, on a self employed basis)for an engineering firm delivering/ collects heavy machinery in a white van, probably weighing over 3.5 tonnes when loaded. I think he is being taken advantage of as he often has to drive for well over ten hours a day. Often starting at 5 am and getting home at 9pm. He is so hurried to get to his destinations that he does not have time to take a break until at the destination. His trips are around 750 miles a day to do two or three drops. Sometimes he has to speed to get there in time. Sometimes he is overloaded. Sometimes he has arrived too late and has to sleep in the van. He also has to tie down his load, and that eats up some time.

We are worrried about him getting prosecuted. He just wants to get the hours done and earn £8 an hour and is happy to do a 15 hour day. It takes him 40 minutes to drive to work

I have many questions that I cant find answers too.

What hours should he be behind the wheel? Should he earn £8 an hour for his breaks or sleep overs? Should he be paid time and a half? Can he insist on taking breaks? Who gets prosecuted if he is breaking any laws? What other concerns should he address apart from these obvious ones?
roythebus
the answer is HERE:
http://www.vosa.gov.uk/vosacorp/newsandeve...shoursrules.htm

or vosa.gov.uk

Follow the links and you'll find the full regs on the VOSA website. Your son need to be VERY careful as the rules for exceeding the drivers gours can include a jail sentence. The mags don't take kindly to employers breaking the rules either, so they too could be jailed. Over 3.5 tonnes needs a tacho and speed limiter to be fitted too.

His work MUST be scheduled so that he does not break the speed limit and so that he can comply with drivers hours regs. If he's also overloaded, VOSA can impose an immediate prohibition preventinfg further movement of the vehhcile until the defect, in this case the overload, is rectified.

IMHO, his employers need reporting, they are causing a danger to other road users. 9.5 hours is the maximum driving time in a day.
quickboy
QUOTE (Its WAR @ Sun, 8 Feb 2009 - 20:45) *
My son (not a professional driver, but working two or three times a week when required, on a self employed basis)for an engineering firm delivering/ collects heavy machinery in a white van, probably weighing over 3.5 tonnes when loaded. I think he is being taken advantage of as he often has to drive for well over ten hours a day. Often starting at 5 am and getting home at 9pm. He is so hurried to get to his destinations that he does not have time to take a break until at the destination. His trips are around 750 miles a day to do two or three drops. Sometimes he has to speed to get there in time. Sometimes he is overloaded. Sometimes he has arrived too late and has to sleep in the van. He also has to tie down his load, and that eats up some time.

We are worrried about him getting prosecuted. He just wants to get the hours done and earn £8 an hour and is happy to do a 15 hour day. It takes him 40 minutes to drive to work

I have many questions that I cant find answers too.

What hours should he be behind the wheel? Should he earn £8 an hour for his breaks or sleep overs? Should he be paid time and a half? Can he insist on taking breaks? Who gets prosecuted if he is breaking any laws? What other concerns should he address apart from these obvious ones?


Although not driving an HGV your son should come under the Working Time Directive. Basically he should be taking at least a 30 minute break after 6 hours of work. In fact he can insist on it. Driving to work is not currently covered under the WTD. There are no legal driving limits for vans up to 3.5T so 10 hours driving is allowed, if not ideal. As for being over-loaded it is the driver who will be held responsible. Your son should insist on getting the van weighed before setting off. If it looks dodgy, then it probably is! You say he has to speed sometimes to get there in time. That wont be accepted as an excuse by any policeman or court. Regarding having to tie down his load, that is normally expected of the driver. In fact the driver is legally responsible for the load at all times whilst the vehicle is in his possession.

As for the amount he should be paid for working, that is a matter between him and the employer. So long as he is earning at least the National Minimum Wage (and £8 is well above the limit) he is ok. He should not have to sleep in the van, as it has not been fitted with a sleeper cab or night heater.

Sounds like IMO he is working for a cowboy firm who care little for their employers. Could be a good idea to start looking elsewhere for a more reputable employer who should look after their staff better.

QUOTE (roythebus @ Sun, 8 Feb 2009 - 20:59) *
9.5 hours is the maximum driving time in a day.


For vehicles over 3.5T the driving hours are 9 hours per day, but this can be extended to 10 hours twice in one week. Van driving without a tacho fitted remains unlimited.
roythebus
Everyone comes under the WTD unless they are "responsible for their own destiny" I think the wording is, i.e. genuinely self-employed. teh drivers hours regs overrule the WTD when it comes to driving.

A van with an authorised mass must have a tacho and speed limiter fitted. See the VOSA links above.

VOSA are currently taking a very keen interest in "white van man" and their white vans. i know of some who, although their vans are legal, have been done for things like not having a waste carrying licence! Be very ware!

What quickboy says above is true as to the excuse that he "has" to speed won't wash with anyone, nor will overloading etc. Remember too the speed limit for vans is less than that of cars as has been mentioned elsewhere on these boards. your son could end up, unlike Norway, with "ten points"!
Its WAR
What is the speed limit for a van on the mway? The vosa website appears to only regulate 3.5 tonnes and heavier. Because he is self employed, who enforces his driving hours- himself or the firm he is driving for? Yes, it seems obvious that he will be the one prosecuted for speeding and accepting an overloaded vehicle. But he is under pressure to get the jobs done and that is not fair. He seems happy enough not to rock the boat and insist on being given a day that can actually be achieved, but the firm just say his day is not regulated by 10 hours with 45 minute rests. I think it is only a matter of time before I get back to this site trying to get him off something other than just parking. The van belongs to the firm and is usually loaded but not tied down when he arrives to drive it away. Sorry, its not a white van, but a flat bed truck.
hugh_jars
QUOTE (roythebus @ Sun, 8 Feb 2009 - 20:59) *
 9.5 hours is the maximum driving time in a day.

Nope, it's 9 hours and can be extended to 10 twice a week.


Also, IIRC if the vehicle is over 3.5 tons it needs a tacho and loading/strapping down etc. counts as "other work" and is included in the working day total of 9/10 hours.

And then the rest periods; quoted from the VOSA website...

"A rest is an uninterrupted period where a driver may freely dispose of his time. Time spent working in other employment or under obligation or instruction, regardless of the occupation type, cannot be counted as rest, including work where you are self-employed."

Echoing what someone else said, the employer is breaking the law from at least 4 angles; overloading, driver's hours, inadequate breaks, speeding (condoning it) and then possibly failure to record hours.

If your son gets caught he will probably lose his licence.



Anorak
Your son seems to cause you no end of concern with his driving/parking shenanigans....not seen you post about your own problem yet. The advice above is good and from those in the know.
Its WAR
Good point Anorak. The thing is, I have two sons who are still young drivers. I learnt to keep the speed limits and dont get parking tickets anymore (the hours spent fighting the law are excessive when all you have to do is slow down a bit instead. The purpose of a great site like this is to make you learn sense, not break the law and then try to wheedle out of it. So I want to protect my son, rather than fight a battle in the coming months. And I hate injustice.
quickboy
QUOTE (Its WAR @ Sun, 8 Feb 2009 - 21:26) *
What is the speed limit for a van on the mway? Sorry, its not a white van, but a flat bed truck.


70 MPH if under 3.5T. You say a flat bed truck. Do you mean a transit type or similar? If that is the case then the driving hours limits do NOT apply. I assume from what you have said so far the truck does not have a tachograph or speed limiter fitted?

QUOTE (Anorak @ Sun, 8 Feb 2009 - 21:40) *
shenanigans...


Now there is a word I haven't seen for a while! Very apt. But seen daily on roads around the South West!
Its WAR
Yes, its a long wheel base transit type. A mercedes. There is no speed limiter or tacho and I was angry when he spent two hours doing 90 just to get to his destination before they closed. I think the rules do not apply apart from the WTD, And thats the point. What protection can he rely upon when he is asked to make unreliable runs. Tomorrow its 40 minutes to get to the factory in Somerset drive to Leicester to drop off. Back to Somerset to reload and to Truro to drop off before 5pm. Then back to Somerset to drop off the truck. Then 40 minutes to get home.
hugh_jars
OK, so it's a Sprinter without a tacho, and therefore "probably" overloaded. Once again if your son DOES get pulled for whatever reason and taken to a weighbridge HE will be prosecuted.

Why doesn't your son just fail a few drops (no tacho = no record of speeds travelled) and then do an overnight and claim his hours?

If the company were to pay an agency for a stand-in driver he/she would get overtime after an amount of hours (8-10) and a 'night out' payment.
quickboy
QUOTE (Its WAR @ Sun, 8 Feb 2009 - 21:54) *
I think the rules do not apply apart from the WTD, And thats the point. What protection can he rely upon when he is asked to make unreliable runs. Tomorrow its 40 minutes to get to the factory in Somerset drive to Leicester to drop off. Back to Somerset to reload and to Truro to drop off before 5pm. Then back to Somerset to drop off the truck. Then 40 minutes to get home.


Regards the WTD it is up to him to ensure he takes a 30 minute break after 6 hours. Not sure how he can record that officially without a tacho apart from using a manual paper log of his work. From what you have said it is unlikely his employer will provide one of those!

That journey sounds unreasonable considering the distance involved. No account has been taken of weather conditions (snow forecast etc) or even just normal heavy traffic, accidents etc. Leicester and back should be far enough IMO. He could just refuse to do more than he thinks he can manage. I understand about being loyal and wanting to get the job done but there are limitations. I would personally just say no.
glasgow_bhoy
Unfortunatly with the recession n all that crap I reckon more and more employers will start cutting corners and breaking rules like this. At the same time more employees will be desperate to keep their jobs and will keep quiet.
hugh_jars
And just to add to his troubles....

He could be violating IR35 rules if HMRC were to reckon that he was effectively an employee and not really self-employed



Its WAR
He only ever seems to get two drops a time , but they are always hundreds of miles apart. The firm used to use agency drivers, but i think my son is much cheaper, they use him to excess. Maybe the agency drivers refused the hours. Because its only twice or three time a week, my son says at least it adds up to a weeks work of hours. it just seems too risky to me and I want to be sure of his rights and liabilities.

Also, its not the mercedes anymore. its a Maxus extended frame dropside. Listed as 3.5 tonnes with a 1.5 tonne load. Max weight loaded is 5.5 tonnes. So i guess the 3.5 tonne limit is not exceeded to be governed by the vosa regs.
hugh_jars
Agencies would charge a LOT more than £8 per hour, especially if it was time and a half after 8 hours.

If he is effectively acting as an employee then the firm (and he) could be in trouble and have to pay tax & NI.
davepoth
Like Mr. Jars said there is a whole can of worms about to be opened.

The Government has some advice on the matter here.

http://www.direct.gov.uk/en/MoneyTaxAndBen...gTax/DG_4015975

QUOTE
You are probably self-employed if you:

* run your own business and take responsibility for its success or failure
* have several customers at the same time
* can decide how, when and where you do your work
* are free to hire other people to do the work for you or help you at your own expense
* provide the main items of equipment to do your work


So, working down the list, I would say your son would say no to every single one of those questions. That means that the company he's working for is probably breaking the law in several respects, including the WTD, and the national insurance contributions, as well as health and safety (if the drops are so far apart as to need the speed limit to be broken)

However, if he brings this to the attention of the company, it's quite likely they will just stop giving him work.
roythebus
I'd recommend your son find work elsewhere. any employer who openly encourages such recklessness deserves to be put out of business.

Has the employer got a goods vehicle operators' licence? For that size of vehicle he should have. It must also be fitted with a tacho and a speed limiter, the rules on limiters and vehicle size changed recently. Drivers hours MUST be complied with. the gross vehcile weight is 5 tonnes. Remember too it has a lower maximum speed limit on most roads than cars, so to "have" to do 90 to keep time would mean at least 40 over the lim,it on a standard road and 34 over on a motorway, jail bait.

If your son were to get caught, and VOSA are getting very hot on pulling smaller goods vehicles and vans, he is likely to be not driving for a while. Your son AND his employer must obey the drivers hours; VOSA and the police enforce the regulations.

You ought to contact your local VOSA testing station manager for help and advice before your son's driving at such speeds in a goods vehicle kills someone or himself.

As others have said, as the driver HE is responsible for keeping within the law; if his employer encourages or rosters it, then he is aiding and abetting and is likley to need soap on a rope for a while as he becomes BigBubba's plaything.
Its WAR
Thanks for the support guys. I think we are getting through. Today, my son took his 45 minutes rest and told the company he could not get back in time to do the Truro run as the roads were also bad. I still dont think the van exceeds the 3.5 tonne limit to fall into the stricter requirements, as it is 3.5 tonnes, not exceeding 3.5 tonnes. Therefore the softer WTD are the rules. He should never feel pressured into breaking the law.

As far as the employment is concerned. From the above post it looks like he is not self employed, but simply a casual worker for the company. But he has no deductions from his pay for tax & NI . He gives the company an invoice for all work done, so I guess he is liable for his own tax affairs etc as iuf he were self employed. He doesnt have any other customers and cant choose his work, he does everything the firm ask of him, when they want him.
glasgow_bhoy
Just read your post bout your sons parking ticket as well and youve said hes going to OZ (alright for some.. the jammy git:() so does it really matter if his company take a disliking to him seeing as hes going away in a few weeks?? He could report them for what they are doing seeing as hes leaving...
quickboy
QUOTE (Its WAR @ Sun, 8 Feb 2009 - 22:37) *
Also, its not the mercedes anymore. its a Maxus extended frame dropside. Listed as 3.5 tonnes with a 1.5 tonne load. Max weight loaded is 5.5 tonnes. So i guess the 3.5 tonne limit is not exceeded to be governed by the vosa regs.


QUOTE (Its WAR)
I still dont think the van exceeds the 3.5 tonne limit to fall into the stricter requirements, as it is 3.5 tonnes, not exceeding 3.5 tonnes


Hello again. I hate to sound pedantic but it would really help if we could find out exactly what the Maximum Authorised Mass (MAM) or laden weight of the truck is. If it is 5.5 tonnes then the driver needs to hold a C1 licence to drive it. C1 is for vehicles between 3.5 and 7.5 tonnes MAM. Anyone who passed their driving test after 1st January 1997 does not automatically get C1, it is a separate test. However if the car test was passed prior to 1997 the licence holder will already have the category (old 7.5 ton licence)

If the MAM is only 3.5 tonnes then the unladen weight could be around the 2 tonne mark, adding 1.5 tonnes of load would bring it up to the 3.5, therefore can be driven on a car licence (Cat B). Hope this helps.
roythebus
Correct there quickboy.

Remember too the speed limit differentials for vans is still lower than car-derived vans, lots of threads elsewhere about this. We really do need to know what he's driving and does the operator have an operators' licence. It makes a lot of difference.

The son may give an invoice, but his earnings could be below the tax and NI threshold. His employer is still under the same legal obligation not to expect or order him to exceed speed limits etc.
bama
Found this:
Vehicle Inspectorate -v- Nuttall [1999] 1 WLR 629; [1999] UKHL 14; [1999] 3 All ER 833
An operator accused of permitting contraventions of the drivers hours need only be shown to have failed to take reasonable steps to prevent contraventions by his drivers. A willful failure to inspect tachograph charts can amount to prima facie evidence.
andy_foster
AIUI, if he is self employed, the WTD do not apply. I suspect that this is part of the reason why the cowboys that he's working for insisted on him being self employed.

Much as I would normally jump down the throat of anyone sounding even remotely preachy or sanctimonious in an ordinary thread seeking advice regarding a speeding ticket, for £8 an hour (with no employee benefits), they are seriously taking the p*ss, and IMHO it is not worth the risk to him, other road users, his licence, or his health in general.

If he wants to work long hours for cowboys, there are still plenty of security companies that allow their guards to work 'dodgy' hours, for not much less per hour (as employees), and the biggest risk if he falls asleep at work is simply that of getting caught.
bama
I think this one was Road Transport Act 1968 96(IIA)
roythebus
you're probably right there Bama, but I read the commercial transport press regularly and almost every week there are cases of employers/operators being prosecuted and fined substantial amounts for "turning a blind eye" call it what you will to drivers hours offences committed by their drivers.

I know of one case bubling under where the employer is up on 14 counts of fraud, inventing tacho charts of all things!
Its WAR
Two sons, this thread is not going to OZ. The parking ticket one is. Update on this sons thread. He is seeing sense and agrees not to be pushed into breaking the law. He did not do the Truro part of yesterdays drop as the time and weather did not allow. But, today he now has to do the Truro drop then a London drop before 5pm. So whats new? Still too much pressure to get the miles in. But he wont do the London drop, if he is late getting back from Truro.

Still dont know about the spec of the van whether it exceeeds 3.5 tonnes or is 3.5 tonnes. Can anyone confirm?

I dont think he is self employed. More a casual worker. I think he passed his driving test in mid 1997.
davepoth
According to the LDV website the GVW of every variant of the Maxus is 3500kg which puts it into non-tacho territory. That does change things a little, especially because your son only works part time.

The protections he has are as given here:

http://www.berr.gov.uk/whatwedo/employment...regs/index.html

*a limit of an average of 48 hours a week which a worker can be required to work (though workers can choose to work *more if they want to).
*a limit of an average of 8 hours work in 24 which nightworkers can be required to work.
*a right for night workers to receive free health assessments.
*a right to 11 hours rest a day.
*a right to a day off each week.
*a right to an in-work rest break if the working day is longer than 6 hours.
*a right to 4 weeks paid leave per year.

So of those I would think that the right to 11 hours' rest each day is the important one, it means that he cannot be told to work more than 13 hours in a day. That in itself is still a stupidly long time though.
Its WAR
Thanks Dave, I suppose he just has to be sensible. He has little protection otherwise. It seems his boss can ask him to drive for 12 hours with 30 minutes rest half way through. Its just that he often has to do more hours, and inside a timesacale so his drop off point is still open for the day. That means very early starts and risks falling asleep on the way back. Its risky.
The Rookie
I disagree, thats for employee's, as your son is not an employee, they are irrelevant.

Simon
roythebus
Still ask VOSA about the vehicle, they will have the answer about the tacho and speed limiter. Get your son to do it, it's in HIS interest, he's the one that could go to jail.
Its WAR
Thanks Roy, I have done that but still waiting for the reply. The firm werent ready today to give him the load for the London drop, so it was just Truro. Just as well. But tomorrow its the London drop, then to Leicester and then back to Somerset. At least I guess its do able without speeding.
Crewman
Get your son to join the United Road Transport Union (URTU), a union just for drivers and they have all the answers. £35 a quarter and worth every penny. Your sons nearest full time URTU officer is based in Banbury but if he phones 0800 52 66 39 that will get him through to head office, they will get the paperwork to him by first class post and as soon a they get it back sighed he's in with the full protection of the union, also tell him to look at www.urtu.com From what you have said he is heading for a big fall and his so called employer will drop him like a hot potato.
Ask your son if he thinks his employer will still pay him any money when he is in jail????? and your son also has to remember that with a driving job, unlike other people he not only loses his licence but his job as well...... is it worth it in the long run?????
The Rookie
Throwing union weight around is a sure fire way to get the company to stop using his self employed services, he could do the same by stopping working for them now!

Simon
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