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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 47612
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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Supermarket HGV driver disciplinary information request. In

Customer Question

Supermarket HGV driver disciplinary information request. In anticipation of possible disciplinary/grievance my employer holds nearly all the information with which I could utilise to defend myself or to bring a successful grievance against a manager for abuse of power in making a reasonable management request. i.e. manager saying that I have enough time to complete a run in 2 hours, when from previous experience and knowledge from colleagues it would likely take 4 or 5 hours or more if that run would leave later than scheduled where other loads would then be in front on arrival. This could run into possible problems concerning working time breaks, tacho breaks and maximum duty time, including drivers should not be allocated work for more than 13 hours in a shift. The other drivers would not make witness statements because of possible reprisals.
Other drivers manage to turn down certain runs, but I am having trouble doing the same. I am quite willing to work over my hours to a certain time but these requests will take be beyond what I and many other drivers would say is reasonable.
In order to justify a refusal to take a particular job or to defend myself in a disciplinary. I would need access to the records of the actual times of previous similar runs and to see if other loads can be foreseen to be in front etc. We drivers all know and anticipate the the likely return times. The line managers look at the schedule on the computer screens and try to enforce those times which are not achievable even in the most ideal conditions. I happen to work during the most unideal time of the day.
During a disciplinary, would it be reasonable to ask for this data so that I can scrutinise it and verify things like average trip times over weeks or months. I know that if I get access to this information that it will take a some time to collate the run times etc and I will have to be assisted to some degree with the employers computer systems. I as a driver, have very little evidence that I could produce with which to make an informed defence. My employer could give me any numbers they like to justify themselves but I would need to verify them.
If I ask for this information from my employer of 16 years and it is refused, could I ask for an adjournment until the information is produced, and if it dose not appear say that this disciplinary is not being conducted fairly, and then seek further advice ie ACAS.
Submitted: 1 year ago.
Category: Law
Expert:  Jo C. replied 1 year ago.
Thank you for your question. My name is ***** ***** I will try to help with this.
You want information relating to other employees?
Customer: replied 1 year ago.
Hi Jo C.
I am enquiring that should I be called for a disciplinary that the only source of information to defend myself will have to come from my employers records. I keep records of what I do but it may be weeks or months since I am asked to do the same run again. In order to establish that if I took a particular job I would finish very late I would need information about the times other colleagues have taken in recent times. If the last few runs have all taken a certain time to complete then the chances for the run I am being offered is likely to be the similar. On any day it is typical that runs are scheduled to leave at the same time ie a load to a particular store leaving at 2200 today, there is a load to the same store leaving at 2200 the day before and indeed possibly every day of the year. The traffic conditions will be much the same as they were on the same day last week. Some days are less busy than others but fairly predictable. We are normally expected to do 2 runs per day , but as before, the times the company use are usually unachievable so we are often late back from the first run which has a knock on effect on the following runs which will be late leaving and then lorry's are not where they are supposed to be and out of sequence. All this is known to the company but not me. When this sort of thing happens the managers start to lie about everything, including run times and expected delays. Even road closures that they know about . All this reflects on me as my finishing time. In my view if the company used its own runtime data, loads could be planned more accurately so everyone finishes at a reasonable and predictable time and most drivers will be happy. I don't think that I am being unreasonable on my finishing time I am more than willing to start earlier in the day.As for the possible disciplinary information requirement if I can demonstrate that any request by management would be or would have been unreasonable, especially when there are alternative runs that could be done this can be done by using realistic times. As such analysing the data would predict these reasonable times.So if the data is supplied for me to verify it will not be necessary for me to know other drivers names to do so. Although as the drivers largely know each other I could if I wanted to work out who did what run, but in a disciplinary situation this should be kept confidential.
So yes I would be seeking information of other employees activities
Expert:  Ben Jones replied 1 year ago.
Hello, i have been asked to look at this. whilst I understand the nature and purpose of the data you are intending to obtain, doing that may not necessarily be easy. You are not asking for data relating to you, this is data relating to other employees and as such will be subject to certain data protection rules. As such, the employer could refuse to provide it in order to ensure that they meet their legal obligations in that respect. Saying that, you could try and push them by asking them to blank out any personal data which may identify others.
The other problem you may face is that the law does not specifically deal with what you can and can’t ask for in a disciplinary. You are entitled to get copies of the documents that will be used as evidence against you but that does not mean you can ask for anything in return and it would really depend on whether the employer considers yours to be a reasonable request.
If they fail to provide the documents as requested, you cannot force them to adjourn the meeting or get someone else, like ACAS involved. This is an internal process and outside parties cannot meddle with it. You will have to raise this as a grievance with the employer and can only pursue this further outside of work if you are either dismissed or resign. That is when you will be challenging the fairness of the dismissal through ACAS and eventually the employment tribunal.
This is your basic legal position. I have more detailed advice for you in terms of the process you need to follow should you find yourself in a position of dismissal or resignation, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
Customer: replied 1 year ago.
Thank you for your reply. If they tell me for example that I am falling short of the expected 2 runs per day( the average is about 1.6 I believe due to a few one run per day jobs, and some drivers who are contracted for shorter hours per day who often only do one run. I believe that my average is around 1.9) can I ask for some kind of proof with data to back this up so that I can check they are correct as they could otherwise say anything to put me in the wrong.They usually display a notice on the wall with all the drivers names and some agency drivers, that shows data for things such as average Miles per gallon, amount of time in cruse control, idleing time, harsh breaking etc, I am always in the best 25% for all categories.
If on occasions I decline to take a load out as I believe that it would be an unreasonable request, and any reasonable driver would say that by doing so would take me well past my normal finish time, how could I defend myself during a disciplinary if there is no data made available to me. Surly this would be an unfair disciplinary.
In my contract of employment, it dose refer to drivers, are on occasions expected to do reasonable overtime, but it has never been stated in writing what this could be. The usual reply from drivers and union officials is one hour extra past contracted time, or two hours total in a week. Many drivers say that they don't do any overtime and I know that they rarely do so. It is unfortunate that I work during the time of day where the plan (such as it is) very rarely works (due to the planning department using incorrect run times, not using actual and realistic times ) The managers then try to get me to put them back towards the plan. In my view it is the company that has put themselves behind time not myself, but use me as a means to hide the managements inability to plan.
As I am put under undue pressure to do largely unwanted overtime while other drivers (even drivers that start and supposed to finish at the same time as me) are allowed to do less work and often sit in the canteen for maybe 2 hours before going home on time, would this be discrimination or victimisation. If so how could I get the company to take this seriously and fairly if I am not allowed access to data which they hold.
Expert:  Ben Jones replied 1 year ago.
If they are making a specific allegation against you, such as that you are falling short of the required runs, then yes you can ask them to provide evidence backing that up. However, that would be data linked to you, not to others. When disciplining an employee the employer would need to conduct a reasonable investigation first so they must have some evidence or data on which to base their allegations and this is what you are entitled to se prior to any meeting. None of this is discrimination or victimisation, this only occurs if protected characteristic are involved, such as age, gender, race, religion, etc. I do not see evidence that your treatment is as a result of these so there would be no discrimination here. If your original question has been answered I would be grateful if you could please quickly rate my answer by selecting 3, 4 or 5 starts at the top of the page - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 47612
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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Customer: replied 1 year ago.
From what you are saying it seems that the whole process is very much one sided. The employer can say what they like, right it on a piece of paper and tell me that it is correct, then not have to show the workings.
The employer will have statistics of almost everything, as I will form part of that would I be able to ask for these and then ask for the stats that relate to me to see where about I would be in relation to everyone else. Generally I believe that I would be at the better end of things. If it could be shown that I perform well above average, could I then ask what they have done against the poorer performing drivers as a balance.
Expert:  Ben Jones replied 1 year ago.
Not quite, as mentioned they still need to show that they had investigated the issues and back up what they are allowing. If they are using the stats against you then you should be given a chance to see these as part of the evidence. And yes you can ask to be told what the usual way of dealing with things like that has been in the past - some degree of consistency can be expected by the employer