Does my employer have a duty of care?

frogga

Morning Both,
He did ask them if OH would help but they poo pooed it straight away and were not interested saying it was unnecessary.  He did stick to his guns and not do the second job on Thursday but he struggled as he feels so guilty.  There was another issue on Friday!  It's been a rubbish week!  He turned into work at 5am, so was up at 4am.  The job was not ready to go as it was still stuck on the boat (not their fault granted, it happens) so he texted them straight away to say 'I'm sitting here, job will not be released until 4pm this afternoon, do you have an alternative job?' They did not reply.  He sat there on the dock waiting for 4 hours, texted twice, then finally texted saying 'it's now 9am, I'm going home, very stiff and painful legs now been sitting here waiting for 4 hours' etc.  He will not get paid for that time.  He does not get paid by the hour. He gets paid for the job he does.  No job, no pay, waiting for hours still no pay. They have agreed if his illness means he can't drive then he can just have the day off.  HE will not get paid, he doesn't get sick pay, and if he only manages 4 days a week that's ok. He texted saying he would take it that today there was no job and he went home.  At 10am they finally replied saying come and load up a different job for monday.  He had not heard from them, so went home.  He told them he understood there was no work, but they still expected him to go back down there even though he said he was in pain and going to bed, and spend several hours loading for monday.  All of that time on Friday would have been unpaid.  He didn't reply to their text as he was asleep in bed with pain in his legs due to the long sitting in the cold lorry without moving. They had texted twice during the morning while he was asleep saying 'come in and load'.  HE told them in his text he was 'clocking off' so to speak, yet still they expected him to go back in!

warby68

Why does he text rather than phone where you can be a bit more persistent. Texting does rather set everyone up to fail. When things are busy its usually whoever shouts the loudest that gets attention and text messages are much easier to ignore than calls or simply fall by the wayside if the phone keeps ringing.
Also why does he have to sit in the cold in the lorry for hours on end? Isn't there somewhere more comfortable to wait or a way of keeping warm - loads of plug in or temporary limb warmers that I know of. With health conditions it sounds as if he isn't very proactive - I know I don't know the first thing about his job but its just coming across that way from the way you write.
Its so easy with text messages for things to go wrong. The reply was probably to his first message not the last one when he said he was going home. Also if he hadn't heard anything definitive but was clocking off and going to be out of contact due to sleep, then surely he should have made more effort to get the message across, again back to phoning.
I am playing devil's advocate a bit but he does seem to set himself up for trouble a bit by what seems like an avoidance tactic.
We have a business with multiple teams on sites - they MUST actually speak to boss or his No2 before leaving etc - no texts etc acceptable for things affecting the immediate timeframe. Lesson learnt a long time ago. The ones that text are usually avoiding alternative work or instructions they don't like so don't last long. 
I get that he's your much loved hard working husband who wants a stress free work like as he has health issues to manage and you want him to be treated better than he is but sadly it doesn't work that way - you have to help yourself 95% of the time.

frogga

Thank you for your input.  I do see how it reads.  To be clear though the firm request they all communicate through text.  That's what THEY ask, not the other way round.  Yes I see it looks like avoidance tactics, there may be a bit of bloody mindedness creeping in now, but he's had enough of saying the same thing over and over.  I keep saying 'why don't you say this or that..'  and he just shouts 'I CANT KEEP SAYING IT!!!'  I think he is at the end of his tether.
There is nowhere else to wait, his 'office' is a lorry.  If you keep it running for 2.5 hours it overheats, it's like sitting in a car.  He has Rheumatoid Arthritis so sitting in a confined space for hours on end is not great.  At least driving moves your limbs. The point I was making was that they didn't reply for several hours as they are ignorant.  They read the text and knew he was waiting.  They just didn't care.

Anyway thanks all for your replies, I think I have the answer to my initial question so signing off now.

Diamandis

Honestly I think the best thing would be to put things down in writing, rather than both of you talking to them/text messages etc. It would probably also be helpful to get something in writing from his specialists with recommendations. He could also submit a flexible working request. 

nicechap

frogga said:

Morning Both,
He did ask them if OH would help but they poo pooed it straight away and were not interested saying it was unnecessary.  He did stick to his guns and not do the second job on Thursday but he struggled as he feels so guilty.  There was another issue on Friday!  It's been a rubbish week!  He turned into work at 5am, so was up at 4am.  The job was not ready to go as it was still stuck on the boat (not their fault granted, it happens) so he texted them straight away to say 'I'm sitting here, job will not be released until 4pm this afternoon, do you have an alternative job?' They did not reply.  He sat there on the dock waiting for 4 hours, texted twice, then finally texted saying 'it's now 9am, I'm going home, very stiff and painful legs now been sitting here waiting for 4 hours' etc.  He will not get paid for that time.  He does not get paid by the hour. He gets paid for the job he does.  No job, no pay, waiting for hours still no pay. They have agreed if his illness means he can't drive then he can just have the day off.  HE will not get paid, he doesn't get sick pay, and if he only manages 4 days a week that's ok. He texted saying he would take it that today there was no job and he went home.  At 10am they finally replied saying come and load up a different job for monday.  He had not heard from them, so went home.  He told them he understood there was no work, but they still expected him to go back down there even though he said he was in pain and going to bed, and spend several hours loading for monday.  All of that time on Friday would have been unpaid.  He didn't reply to their text as he was asleep in bed with pain in his legs due to the long sitting in the cold lorry without moving. They had texted twice during the morning while he was asleep saying 'come in and load'.  HE told them in his text he was 'clocking off' so to speak, yet still they expected him to go back in!

This bit struck me as very odd - legally he must get paid at least minimum wage?  
Or is he self employed and not an employee? In which case all the advice is not relevant.

I'd second getting whatever has been agreed in writing - even if its just a letter from him to them saying this is what we've agreed.

frogga

No he isn't self employed, he is PAYE.  HE doesn't get sick pay, millions don't.  He has to take a day of holiday if he is ever ill and as he get's the minimum legal amount a few days off for hospital appointments through the year and your holiday is gone.
They work out the wages in a very odd way.  They pay the drivers 10% of what the lorry earns.  So if the job was worth £500, the driver would get £50.  If they are all done and dusted in quick time, no hold ups or traffic jams etc, then all is good.  If they are held up, or it is a long tip, then they lose out.  Over the year, looking at the hours he works on average, and the money he takes, it will be just more than minimum wage I'm sure. Some days it will be a lot more, some days, if you get held up, or things go wrong, it will be a lot less. It is a RUBBISH way of being paid, you never know what yo're going to get, and if it is even 'true' that you got the correct percentage.  This is why all the extra 'can you just...' jobs are so unfair as he does not get paid for them. Also if someone else is in the lorry overnight Mr Frog is often asked/told to load up ready for the night job, which he doesn't benefit from, but obviously helps saves the night driver time as THEY DO get paid by the hour as they are agency drivers. 

nicechap

frogga said:

No he isn't self employed, he is PAYE.  HE doesn't get sick pay, millions don't.  He has to take a day of holiday if he is ever ill and as he get's the minimum legal amount a few days off for hospital appointments through the year and your holiday is gone.
They work out the wages in a very odd way.  They pay the drivers 10% of what the lorry earns.  So if the job was worth £500, the driver would get £50.  If they are all done and dusted in quick time, no hold ups or traffic jams etc, then all is good.  If they are held up, or it is a long tip, then they lose out.  Over the year, looking at the hours he works on average, and the money he takes, it will be just more than minimum wage I'm sure. Some days it will be a lot more, some days, if you get held up, or things go wrong, it will be a lot less. It is a RUBBISH way of being paid, you never know what yo're going to get, and if it is even 'true' that you got the correct percentage.  This is why all the extra 'can you just...' jobs are so unfair as he does not get paid for them. Also if someone else is in the lorry overnight Mr Frog is often asked/told to load up ready for the night job, which he doesn't benefit from, but obviously helps saves the night driver time as THEY DO get paid by the hour as they are agency drivers. 

If things are as you describe, I would suggest he takes his contract & wage slips to an employment lawyer to discuss options. If he is an employer he is entitled to sick pay, which as a minimum is SSP. Total hours must not be paid less than minimum wage including all those waiting around times and extra unpaid bits of loading/ unloading. 

BooJewels

frogga said:

No he isn't self employed, he is PAYE.  HE doesn't get sick pay, millions don't.  [...]. It is a RUBBISH way of being paid, you never know what yo're going to get, and if it is even 'true' that you got the correct percentage.  This is why all the extra 'can you just...' jobs are so unfair as he does not get paid for them.

I can't help feeling, as I read your posts, that your husband's employer is of the same type as my husband's was (and many more before the latest, they're all of a type), in which case, I don't think they'll be in the slightest bit interested in your concerns or your husband's health - at least no further than it might impact on the wife's ability to buy Christian Louboutin shoes.

If their operating model is already skewed in their favour, they're not running their business with high moral ethics (does that payment model even pass legislative requirements?).  So maybe it's time to look at alternatives for the short time he still needs to work. Maybe signing with an agency himself would offer him more flexibility for a more suitable working routine and possibly better earning potential.   He might have to modify his practices in respect of not having his own vehicle, in order to protect himself, but it might still be a better arrangement for him in terms of time v. earning potential.

I would guess that the 'can you just' jobs are the more lucrative ones too - as they're likely to be last minute urgent tasks where they'll charge the client premium, short notice, rates, yet not pay the drivers at all, trousering all that nice juicy profit. How do you think they pay for private education for their children, because I bet their employees can't.

BooJewels

nicechap said:

[...]  I'd second getting whatever has been agreed in writing - even if its just a letter from him to them saying this is what we've agreed.

I'd meant to comment on this too.  I'd second that practice - it ended up being very useful to us as we prepped for a tribunal (he settled five minutes before the deadline to submit it).  My husband had a business habit after all meetings, to confirm the details of the discussion by email and his boss considered it a waste of his time, although it saved his backside several times when my husband could point to his paper trail.

He continued this practice with his own situation and after every discussion about his health, treatment etc., he confirmed it in writing.  By virtue of the fact that the boss couldn't be bothered to read them and therefore didn't dispute any of the details, made them important evidence in our case, as the content of the email stood as a paper trail - by virtue of the fact that the details were never contradicted - and he had various ways he could prove they were delivered. So even a one way trail of correspondence can be helpful.  So if there are any discussions and agreements made, confirm it in writing to the company.

Sorry @nicechap - I see you also posted about the employment model - but this new forum doesn't seem to show any new posts as you post yourself.  It simply didn't show in the thread until I left and came back.  

Undervalued

BooJewels said:

frogga said:

No he isn't self employed, he is PAYE.  HE doesn't get sick pay, millions don't.  [...]. It is a RUBBISH way of being paid, you never know what yo're going to get, and if it is even 'true' that you got the correct percentage.  This is why all the extra 'can you just...' jobs are so unfair as he does not get paid for them.

I can't help feeling, as I read your posts, that your husband's employer is of the same type as my husband's was (and many more before the latest, they're all of a type), in which case, I don't think they'll be in the slightest bit interested in your concerns or your husband's health - at least no further than it might impact on the wife's ability to buy Christian Louboutin shoes.

If their operating model is already skewed in their favour, they're not running their business with high moral ethics (does that payment model even pass legislative requirements?).  So maybe it's time to look at alternatives for the short time he still needs to work. Maybe signing with an agency himself would offer him more flexibility for a more suitable working routine and possibly better earning potential.   He might have to modify his practices in respect of not having his own vehicle, in order to protect himself, but it might still be a better arrangement for him in terms of time v. earning potential.

I would guess that the 'can you just' jobs are the more lucrative ones too - as they're likely to be last minute urgent tasks where they'll charge the client premium, short notice, rates, yet not pay the drivers at all, trousering all that nice juicy profit. How do you think they pay for private education for their children, because I bet their employees can't.

That may very well be the case but sadly they don't have to operate "with high moral ethics" they only have to operate lawfully. Providing they do that the wife can buy whatever shoes she chooses!

That said, based on what we are told, the sick pay situation doesn't sound lawful. Providing the OP's husband does enough PAYE hours to qualify he is entitled to SSP for any absences of more than three days.

Apologies if I have missed it but is he on a zero hour contract? If not then what are his minimum hours? However it is calculated does he always get more than the NMW for the hours worked?

As "nicechap" said, he needs some proper legal advice.