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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45349
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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as a voluntary driver i was paid waiting time and out of hours

Resolved Question:

as a voluntary driver i was paid waiting time and out of hours time,
can i claim i was employed and be paid the national minimum wage
Regards

XXXXX XXXXXhouse
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. can you tell me whom you were volunteering for

Customer:

Hi Ben, yes I was a Voluntary Driver for Swindon Borough Council, for 8 years, travelling several thousands of miles each year , either taking children to school, foster placements etc and in that period of time < I was paid waiting time, out of hours, usually Saturdays & Sundays Weekdays between 11.00pm and 7.00am.

Customer:

Hi Ben Are you There ?

Ben Jones :

Apologies for the slight delay, I experienced some temporary connection issues earlier on. All seems to be resolved now so I can continue with my advice. Before I proceed it may be best if you can please follow this link and after answering the questions there, let me know what you believe your status was:

http://www.hmrc.gov.uk/employment-status/index.htm#1

Customer:

Hi Ben, Employment Status per the index A) I could only do the work myself B) Several people could tell me what to do C) yes I could work a set amount of hours D) Several people could move me from task to task E) I was paid by the mile F) yes i would be paid overtime ( out of hours rates and waiting time . Hopefully this answers the question. Regards Peter

Customer:

Sorry should say " answer your question " Regards Peter

Ben Jones :

Were you not being paid the NMW for the hours you worked?

Customer:

No I was only being paid Milage. Regards Peter

Ben Jones :

Thanks for that, you do have arguments that you were an employee, however only a court or tribunal can state with certainty what your employment status was and no matter how much a lawyer looks into this for you, they will just be stating an opinion which would not matter if the court disagrees.


 


So even if you raise this issue with the employer and they disagree, all you can do to take the matter further would be to challenge this the legal way and hope a court agrees that you were an employee.


 


On top of that you must be able to show that the time you are claiming for was ‘working time’ as you will only be paid for that, not any other time. Of course if you were driving for a job and following instructions, being under the control of the employer you were likely doing ‘working time’.

Customer:

That is what I was thinking, I have Specific Time Sheets which Cover A) Dates of Journeys B) Name and Address of Client C) Route Taken D) Purpose of Journey E) Miles Travelled F) Time Departed from Home G) Time Arrived back home H) Hours Worked. The records I have kept go back till 2006, how far back would I be able to claim, by going to court ? Regards Peter

Ben Jones :

Are you still employed there?

Customer:

Yes

Ben Jones :

ok, as long as there were continuous underpayments then you can claim this was a whole series and claim as far back as necessary, provided you were never paid what you were due.

Customer:

Sorry wrong answer, was told today no longer needed. Regards Peter

Ben Jones :

ok it makes no difference, you have 3 months from last payment due to claim anyway

Customer:

The last time payment was made , was in November 2013, would that make any difference? Regards Peter.

Ben Jones :

But you have more due to you now that you have finished?

Customer:

Sorry don't understand that answer.

Ben Jones :

More payments? Is nothing due to you since Nov?

Customer:

No nothing at all.

Ben Jones :

ok then it means you can't go to the tribunal but the county court is still an option and then you can claim back up to 6 years back

Ben Jones :

Did you get my last response above?

Customer:

Hi Ben. That's what I had in mind. Is it six tax years plus the current tax year ending 5/04/2014 . Regards Peter

Ben Jones :

No, calendar years

Customer:

So that is Jan to December and not April to March.

Ben Jones :

Well sort of, it is 6 years going back from when you make the claim, so if you claim in June, you can go back to June 6 years ago

Customer:

Brilliant you have answered my questions. Sorry it has taken a long time, I will bid you a good evening. I may come back to you another time. Regards Peter

Ben Jones :

You are most welcome. Please take a second to leave a positive rating for the advice I have provided as that is an important part of our process. Thank you and feel free to bookmark my profile for future help:



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Ben Jones, UK Lawyer
Category: Law
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Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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