Possible contructive dismissal.....any advice

[wjames]

Right, i'll breifly explain my situation

 

been with a small ( 10 workers) comapny for 15 months now. i drive a HGV for them. I have yet to sign any kind of contract.

 

there is no procedure for reporting defects with the HGV's, so every time i have a problem i tell someone in the workshop.

 

2 weeks ago, i told them my lorry had a problem with its brakes, i told the workshop, and they did nothing. a week ago, i reminded them, and the guy laughed back " aye, i'll get round to it along with the other things wrong with that truck" i had been waiting for a windscreen for a month ( it was very badly cracked)

 

On friday, i braked hard to avoid a deer, and the truck veered hard to the NS, and struck a soild wall at around 30mph. ambulance attended, hospital, xrays, CT scan - moderate whiplash, and some siatica.

 

No doubt WHAT SO EVER that the crash was a direct result of the lack of maintainance of the HGV.

 

they called me today to " see what i wanted to do about the days off" i was asked if i just wanted them as holidays. without thinking, i said " whatever"

 

 

Now, in the past, i've been told to " go fix it yourself" when the truck had problems. im not a qualified mechanic.

 

I plan to go back to work on friday ( 2 days) - but i know in the back of my mind they will expect me to repair the truck. or failing that, i won't be able to do my work, as they don't have a replacement truck.

 

 

If, i refuse, and they sack me. OR, if i decide i have no option but to leave based on this matter - do you think i would have grounds for unfair, or constructive dismissal ?

 

I have made no decicion about whether to make a personal injury claim against their insurer. i know they will not have informed them of the accident.

 

 

any advice is welcome, and thanks in advance.

[SarEl]

Yes I have some advice. Don't resign unless you are prepared to walk away with nothing. Because you do not have any evidence of what you have said, and you will have no case. You "told the workshop", you "reminded tem" - all verbal, so you have no proof that they knew about any faults. On the other hand, if there is evidence of faults, and they deny that you told them - well the person who is at fault then would appear to be the driver! You have to let them play this one out and see what happens - then come back for advice when you know. Just to be clear - if you resign you will stand absolutely no chance of constructive unfair dismissal. Don't do it!

[wjames]

did i neglect to mention, that after i told them the second time, i began recording my conversations.....

 

 

and have a clear audio recording of the workshop forman saying that he would get round to doing the brakes when he did the gearbox....hence they KNEW they needed attention.

 

i also have a photograph of the defective brake disk.....

[SarEl]

Yes, you did neglect to mention that you have breached the law by recording covertly conversations to this effect. You also forgot to mention that, in having such evidence, you knowingly took a defective vehicle on the road, which could put you in peril of prosecution as well. I think that you are digging yourself a hole that you may not want to find yourself in. Whilst I know that people do the former, and can sometimes use this as evidence (but not always - it is still tecnically unlawful and there are rare but real risks to doing this), the latter is as much a serious offence for you as for the employer here. You said in the first post and you reported "a problem with the brakes" (which I agree they should have checked, but equally you drove it away knowing this) - that is a bit different from having a photo of a defective brake disk and driving it away! So my advice would be to stop digging now, before the hole gets deeper.

[elpulpo]

Which law prevents one from making an audio recording of ones conversation with another, SarEl?

'Bugging', where one records a conversation one isn't party to, yes. But I thought it was legitimate to record conversations one is party to.

I know you legal professionals are averse to it, but I didn't realise it was unlawful.

[Mash It Up Harry]

I can't add anything else to the advice already given other than to state that I find it almost unbelievable that as a supposedly professional driver you had no hesitation in taking a vehicle out on to the public road in a periously dangerous condition! The fact that you didn't kill anyone is a miracle. As someone who relies on your licence for your livelihood you should be more than aware that you leave yourself wide open to prosecution if you were stopped by VOSA &/or the police if you were found driving a vehicle in an unroadworthy condition.

[postggj]

now does this company have an o licence ref the truck (legal requirment)

does the truck have a vehicle log book, recording milage/mot/ maintance etc(legal requirement)

 

the vehicle should have been put off the road with any defect that would fail its mot

its the drivers responsability for reporting defects by a PMT1 for instance, one copy goes in the log book, the second to the garage/mechanic

[SarEl]

Which law prevents one from making an audio recording of ones conversation with another, SarEl?

'Bugging', where one records a conversation one isn't party to, yes. But I thought it was legitimate to record conversations one is party to.

I know you legal professionals are averse to it, but I didn't realise it was unlawful.

 

The EU laws on human rights for a start. It is not legitimate to record a conversation which one is party to unless you have informed the other party and obtained permission. In law it is also the case that recordings are permissible for one's own use, but you immediately give up immunity from prosecution if you rovide them to a third party (like a court). Some courts have accepted transcripts - but rulings wildly vary on this matter, and no court has to accept them. And you are entirely wrong - most legal professionals would actually prefer clear law on this matter, if only to make our lives simpler!

 

However, that slight diversion doesn't really answer the issue here. Under just about any legislation under health and safety (and I don't know haulage regulations, but I would lay bets that these too!) the OP knew that the vehicle he was driving for two weeks had defective brake pads, and he would like to produce evidence that he knew about it. Quite apart from the fact that at the very best, this makes him equally liable for breaking the law by driving an unsafe vehicle (and one can only be grateful that it was a wall he hit and not people) - if he produces this "evidence", just how far do you think a personal injury claim (which he is thinking about) would go? Staright into the bin, that's how far. If this evidence ever sees the light of day, both the employer and the OP will be in serious trouble.

 

And as a slight aside - I too would like some clarity on these laws. I find it perverse that covert recordings may be accepted by some courts and not others. I find it even more perverse in justice terms that employers are required to comply with strict laws about recoirdings, whether audio or CCTV, whilst employees are not. Clarifications about the right to record - on both sides - seems rather appropriately balanced.

Edited January 19, 2011 by SarEl
Addition

[wjames]

wow. lots to look at here.

 

 

I'm 90% certain its not illegal to record a conversation which you are involved in, in person. indeed, in a previous court hearing, i had a TRANSCRIPT of a recording accepted. i may well be wrong ( it has happened before)

 

For now, lets just say these recordings are for my own use, in order to remind me of exactly what was said, when and where, in case i need those details for a court case. Happy ?

 

Anyway, after speaking to a freind of friend, who works with vosa - he told me that if i informed my employer of the fault, and they told me to " drive on" then the issues stands with them. Breaking the law is not the matter here. defective brakes carry a £60 fine, and 3 points ( for the driver) at the discression of the police, who will generally not get involved. defective brakes for the operator carry huge penalties, and if im not mistaken, are often decided by the PF.

 

@ postggj

 

they are o-licence exempt ( recovery)

there is NO defect book for ANY of the lorrys. hence why me telling them about the defective brakes was verbal. and the windscreen.

my understanding is that its the owners responsability to PROVIDE the driver with a means of reporting defects. If i'm not given a defect book, how else can i report defects other than verbally ?

 

@ Mash It Up Harry.

 

Although i was aware of " a brake problem " - i wasn't aware that it would affect me to the extent it did during an emergeny stop. i took a photo of the NSF brake, and sent it to a mechanic friend to ask if it was normal. had i known that the brakes were THAT defective, i would have refused to drive it regardless of the outcome. beleive me, its opened my eyes, and i'll never risk my, or anyone elses life in that way again. all 3 999 serives attended, and all 3 agreed that if i wasn't wearing a seatbelt, it would have been a fatal accident.

 

as where i understand the points you all have made, please understand mine.

 

I've found myself working for a company who seem to have a total lack of regard for safety - indeed a complete lack of maintence AND or service on their fleet.

 

IF i refused to drive the truck, due to any defect, i know i'd be sacked on the spot. with no evidence, what leg do i have to stand on.

 

I will likely be asked to fix the brakes myself. I'll be refusing to do so, based on the fact that if i replace the brakes, and then they fail, and someone dies, i'll be directly responsable.

 

 

while i'm here, i'll thank you all for your input, positive OR negative - and i assure you that it's all taken on board.

 

 

i'm just glad it wasn't a young mother who stepped out onto a zebra crossing just infront of me, otherwise i'd be writing this from a jail cell.

 

I'm due back at work in a few days, and not looking foward to the resulting outcome.

[ForestChav]

I always thought it was the driver's responsibility to ensure the vehicle was roadworthy. Could be wrong, though.

[wjames]

its the drivers responsibility to inform of any defects. If the owner, or manager, or o-license holder tells the driver to " drive on" etc, that person is then responsible for its roadworthyness. a driver can only report the symptoms of a defect, its up to the owner or o-license holder to have a mechanic investigae the CAUSE of the problem, and the rectify it.

[postggj]

i agree with what you are saying but the fault must be recorded on the vehicle defect form, its the only defence

 

say the employeer says he never reported the defect to me, it then falls back onto the driver

 

one page goes to the garage, one in the vehicle log book, the last carbon copy into the transport office

[SarEl]

 

I'm 90% certain its not illegal to record a conversation which you are involved in, in person. indeed, in a previous court hearing, i had a TRANSCRIPT of a recording accepted. i may well be wrong ( it has happened before)

 

For now, lets just say these recordings are for my own use, in order to remind me of exactly what was said, when and where, in case i need those details for a court case. Happy ?

 

Anyway, after speaking to a freind of friend, who works with vosa - he told me that if i informed my employer of the fault, and they told me to " drive on" then the issues stands with them. Breaking the law is not the matter here. defective brakes carry a £60 fine, and 3 points ( for the driver) at the discression of the police, who will generally not get involved. defective brakes for the operator carry huge penalties, and if im not mistaken, are often decided by the PF.

....

 

as where i understand the points you all have made, please understand mine.

 

I've found myself working for a company who seem to have a total lack of regard for safety - indeed a complete lack of maintence AND or service on their fleet.

 

IF i refused to drive the truck, due to any defect, i know i'd be sacked on the spot. with no evidence, what leg do i have to stand on.

 

I will likely be asked to fix the brakes myself. I'll be refusing to do so, based on the fact that if i replace the brakes, and then they fail, and someone dies, i'll be directly responsable.

 

 

I did not say it was illegal - I said it was unlawful, which is something different. And of that I am 110%. I opointed out that depite this SOME courts accept transcripts, but there is no legal clarity on this issue and therefore no guarantees either that such a recording is lawful, nor that legal action cannot be taken against you for making it.

 

Was the photo also "for your own records"? You knew what the fault was and you still drove it - which if nothing else certainly has an impact on any possible claim for personal injury. You seem to be under the impression that if people aren't saying something that accords with your views then the comments are "negative". That isn't the case. If a personal injury lawyer gets hold of the fact that you knew about the faulty brakes and continued to drive the vehicle despite knowing this, they will make mincemeat of any claim you try to make, regardless of what responsibility the employer may also have. In legal terms, you ALSO have responsibilities, and it is commonsense that you do not drive a vehicle with defective brakes. Your argument in terms of the penalties is not coherent - there may be a small penalty for driving a vehicel with defective brakes when you don't know about them. I would bet half (at least) of the drivers on the road wouldn't know whether their brakes were defective or not! But the issue here is not that the brakes were defective - it is your prior knowledge of that fact.

 

Nobody is supporting the employer or saying that they aren't at fault. But in legal terms, yes, you should have refused to drive the vehicle and if the employer sacked you it would have been THEIR problem to prove that dismissal fair. If you resign then you WILL NOT win a constructive dismissal case. The burden of proof in such a case lies ENTIRELY on you throughout to prove it was unfair. Not only that but you must also PROVE that you exhausted the employers internal processes (grievance and appeal) AND that you had absolutely no other choice other than to resign. You will not do this because you have not.

 

You asked for advice, and the advice given to you has been sound. What you do with that advice is your decision. But if you resign, no matter what recordings and photographs you have, you will not have meet the legal test for constructive unfair dismissal (for which less than 3% of cases win) - but in disclosing those recordings and photographs you are handing a personal injury lawyer for your employer a complete defence to any claim you make. Since personal injury claims generally far exceed tribunal claims in terms of payouts, you might just want to think about your strategy!

[wjames]

thanks for your advice - i'll take it all on board.

 

I took the photo to send to a freind of mine, who IS a hgv mechanic - unfortunatly, little did i know he was away on a last minute holiday, an as such never got to look at the photo to give me an opinion.

 

@ postggj - there IS no defect book......this is a small company, who clearly lack in some areas.

 

every other lorry i've ever driven has had a defect book in it !

[postggj]

if there is no defect/log book then vosa would have a field day if they did an inspection/audit on the company

 

ITS A LEGAL REQUIREMENT

[wjames]

its a legal requirement of having an O-Licence !

being o licence exempt means they don't HAVE to have a defect book. but they should still have a maintenance schedule etc.

[My Turn]

I did not say it was illegal - I said it was unlawful, [to record a conversation] which is something different. And of that I am 110%. I opointed out that depite this SOME courts accept transcripts, but there is no legal clarity on this issue and therefore no guarantees either that such a recording is lawful, nor that legal action cannot be taken against you for making it.

 

Although the circumstances are different, there is another thread I have been following which has aired several points of view about the rights and wrongs of recording conversations.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?256545-Audio-recording-your-consultations-with-NHS-doctors

"Audio-recording your consultations with NHS doctors"