IGA News

Be Aware - August 2017

Be Aware - August 2017

31 July 2017

Employment Tribunal Fees – Supreme Court Decision

In an important decision, the Supreme Court has allowed an appeal by the Trade Union, Unison. It has ruled that the Employment Tribunals and the Employment Appeal Tribunals Fees Order 2013 (which led to a 70% reduction in claims) is unlawful and will be quashed. Unison had argued that fees prevented workers getting access to justice.

In the main Judgment, the Supreme Court noted that statutory rights granted by Parliament may not be reduced by statutory instrument from a minister. The level of fees set by the minister restricted the access to justice. It was found that Tribunal cases are important for society as a whole, not just the individuals involved.

The Supreme Court’s decision throws everything up in the air somewhat and there is some uncertainty about what will happen next. However for employers the headlines would appear to be:

  • It is unlikely that the fees regime will be abolished entirely. It is probable that the Government will issue a consultation paper and then bring in a new fees regime, with fees at a lower level and/or involving a fee payable by the employer when the employer lodges its defence (response form);
  • It is likely to result in an increase in Tribunal claims over the next few years, so employers will face increased litigation.

This is a complex and developing story, so look out for our detailed updates or contact the RMI helpline for advice.

Europcar Investigations

Last week news broke of investigations by Trading Standard into Europcars billing practices. Since then we have had a number of members seek further information and guidance.

What are the allegations?

The allegations contained within media reports are that Europcar are accused of fraudulently overcharging customers for repairs by inflating the costs of windscreen replacements to consumers. The initial reports suggest that Europcar were charging customers up to 300% more than the costs to Europcar for the repairs

Should we be concerned?

It is too early to tell at this stage. Whilst deliberately overcharging customers is capable of being fraud as well as a breach of consumer protection legislation, the investigation itself is not yet verified, and as such until we receive any conclusions, any advice is speculation. Below are some of the questions that members have been raising.

I charge some customers less than others for the same work, am I at risk?

It is possible. There is always a risk when the same work is undertaken for different prices. However, this is unlikely. The allegations appear to be substantially more than simply charging different prices. The reports suggest that the main issue here is charging customers more than it cost Europcar for the work, particularly if that increase is 300%.

As a bodyshop, I sometimes pay commission back to work providers. Does this mean I am inflating my invoice by this amount?

It is possible but again the reports suggest the issue is much more than that. We should remember that Europcar are ostensibly recovering the costs that they have incurred in repairing the damage caused by the customer. In the usual course of business, a bodyshop is repairing a customer’s vehicle and the charges that can be levied are those for the work undertaken. It is right and proper to factor in all business costs for work when producing an invoice. Provided such costs have been incurred and are not excessive then it is unlikely that there will be an issue. Again, it is unlikely that you will be paying back 300% of the costs of the work itself.

This is particularly the case where you are using independent resources to calculate the costs of any work, such as Autodata. Where you are billing an independently calculated and assessed amount for any work and any commission reduces your profit (rather than being factored into an increased bill) then you are even less likely to be affected at this time.

Conclusion

It must be remembered that we are only at the start of the process. Whilst these are only press reports, Trading Standards have confirmed that an investigation is ongoing. We are yet to receive any detail as to their status or what is being investigated. Until the investigation is completed, we will not know whether the allegations are correct.

If these turn out to be correct, Europcar face potential fines and criminal prosecution; depending on the wrong doing found. On a positive note, scrutiny of poor business practices within our industry can only be a good thing.

Resignation or dismissal where long term sickness absence?

“We have an employee who is on long term sickness absence. We have tried to accommodate their return with reasonable adjustments, but the employee is simply refusing to return to the existing role and wants us to create a new position for them. We have no need for the position they wish to take on and therefore we are somewhat in a stalemate because the employee is adamant they are not resigning, but at the same time, is refusing to return to work unless we create this new role. How can we proceed?”

When an employee is on long term sickness absence, the company needs to be mindful of termination to avoid unfair dismissal (if they have more than two years’ continuous service) and potential disability discrimination. In the circumstances therefore, employers should follow a fair procedure when assessing an employee’s return to work and consider what, if any, reasonable adjustments are needed. Ordinarily most employers would obtain medical advice through the use of a medical report from either a GP or Occupational Health provider.

If the medical report provides that the employee can return subject to reasonable adjustments, and those reasonable adjustments can be facilitated, however the employee still refuses to return, then arguably the company is in a position whereby they are looking at a capability dismissal or a dismissal for “Some Other Substantial Reason” (SOSR).

As the employee is adamant they are not resigning, then legally they cannot be treated as having resigned so that option would be disregarded. In the circumstances therefore, a further meeting should be held to discuss the contents of the medical report and assess whether, in light of their refusal to return, a dismissal is necessary. You would therefore be looking to give them the option as remaining an employee and returning to work with the adjustments that are put in place, or if the employee can’t see themselves returning now, or in the near future, and they don’t believe the adjustments / alternatives could get them back into work, then you would be looking to dismiss on the grounds of capability / SOSR.

It would be important at all stages of meetings to discuss the medical report and the situation thereafter, that you have minutes of all the meetings to show your paper trail. In addition, a reasonable adjustment in itself would be extending the right to be accompanied to having a family or friend member present in all meetings to discuss their return/dismissal.

In any event, if the above situation or similar arises, we would always recommend that you take advice as each case will always be fact specific.

Are you ready for the General Data Protection Regulation?

The GDPR has effectively rewritten the Data Protection Directive, the mainstay of current data protection regime. From May 2018, the GDPR will have a significant effect on your responsibilities when storing data and the uses you can put data to. All businesses are affected, particularly where they use customer details for marketing purposes or exchange them with other businesses in any way. Failure to get this right can result in fines, or worse.

In this series covering this significant change to the law, we look at the requirement for Privacy Notices.

Privacy Notices

Firstly, what are privacy notices, and do you have them?

A Privacy Notice is a standard statement informing data subjects what to expect when you collect and process their personal information. Under current legislation you are required to provide your identity and the uses to which you will put their information and can generally be found in standard terms or on standalone documents. You probably have one already and they can generally be found on the company website or in standard terms and conditions.

These are particularly important if you are using personal data for marketing purposes and will become much more important under the GDPR as the focus increasingly turns to informed consent for processing.

What will be required under the GDPR?

In some respects, we are still unsure as the UK is yet to produce a draft version of the legislation. Consultation closed on this in April. What we do know is that the Information Commissioner (ICO) is not expecting a one size fits all approach. The requirements of a motor trader collecting data for payroll or for billing purposes will be significantly different to those collecting data for marketing purposes.

Fortunately, the European regulations do provide significant detail within articles 12, 13 and 14 and it is likely that these will be very closely followed.

Whilst this is not an exhaustive list, the privacy notice must contain

  • The identify and contact details of the controller (i.e. the business) and where applicable any data protection officer
  • The ‘purpose’ of the processing and the ‘legal basis’ of any processing (more on this later)
  • The ‘legitimate interests’ for processing the data where appropriate (i.e. internal administration fraud protection etc…see articles 47-50 more on this later)
  • Recipients of the personal data
  • Details of any transfers to third countries
  • Retention period or criteria used to determine retention
  • Existence of the data subject’s rights
  • The right to withdraw consent at any time, where relevant
  • The right to lodge a complaint with a regulator (including contact details)
  • The existence of automated decision making including profiling (more on this later)

Any communications under the GDPR with data subjects must be concise, transparent, and easily accessible. The information required in articles 12-14 must be provided in writing and must be provided free of charge and must be provided at the time the data is obtained or within 1 month if the data is not obtained from the data subject.

The ICO has provided guidance that is available both online and as a downloadable PDF. This can be found here.

Conclusion

The above is a very broad overview of one aspect of the GDPR. The legislation and guidance is still developing in the weeks and months in the run up to their implementation. This advice is general in nature and we will endeavour to keep you informed through regular articles and case studies. For further information please visit the Information Commissioner’s Office website here.

Remember, as an RMI member you have access to the RMI legal advice line, as well as a number of industry experts for your assistance. Should you require further information in respect of the article above, contact the legal advice line at any stage for advice and assistance as appropriate.

Changes to maternity leave, start and end dates

“We have two pregnant employees. One of them has asked to bring forward the start date of her maternity leave, and the other has said that after the birth, she may want to bring forward her return to work date. What notice should the employees give us?”

After an employee has given notice of her intention to take statutory maternity leave, if she wants to bring forward the start date, then she has to provide 28 days’ notice of the new date. If this is not reasonably practicable then it will be down to the company’s discretion whether to permit the change or not. Please note however that if an employee is on sickness absence during the four week period prior to the start of her maternity leave and that sickness is pregnancy related, it means that her statutory maternity leave automatically starts early at the fourth week period.

Turning to the other employee, once an employee has given notice of their statutory maternity leave request, it is good practice to write to the employee and set out the dates so that everyone knows what the return to work date will be. Ordinarily the fall-back position is an employee takes the full 52 weeks leave unless they specify an earlier date. Regardless of whether they are taking the full 52 weeks leave or just 39 weeks leave (which is the statutory maternity pay period), once on maternity leave, if an employee wants to return earlier they must give 8 weeks’ written notice. If they fail to do so, then legally you can delay their start date by the 8 week period unless you are happy to exercise your discretion and let them return to work earlier.

Conclusions

This advice is general in nature and it will need to be tailored to any one particular situation. As an RMI member you have access to the RMI legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us on 0845 305 4230 at any stage for advice and assistance as appropriate.