Be Aware - August 2018
“I have had a customer use a dash camera to record my work on their vehicle. I am concerned that this might record sensitive information. Is there anything I can do to stop it?”
Dashboard cameras, or ‘dash cams’ are becoming more common on our roads. Which means they are becoming more common in our garages. Garages needs to be aware of the issues raised and consider what policies to put in place in advance in order to ensure you remain on top of the issue. But what is the legal position?
The use of CCTV is covered by a number of Acts of Parliament. However, most of these are designed to regulate the use of CCTV by the Government and public bodies. The main act to cover private use of CCTV is the Data Protection Act 1998 (DPA). This provides general principles that govern the collection and use of data, including CCTV Footage.
All personal data must be collected and processed in line with the DPA and the principles established under it. The collection must be:
- Fair and lawful;
- For a legitimate and define purpose; and
- Retained only as long as reasonably required.
As the controller of any system would have to comply with DPA, the Information Commissioners Office has produced a .
Consent is needed before any person can be recorded. Where this recording is carried out in a public place then such consent can be implied. This will not apply where any filming is carried out in an area where privacy can be expected, such as a workshop with no viewing area open to the public. For any recording to fully comply with the law then the car owner would have to post clear signs on the vehicle.
In a public area, no. However, any recording on private property can be restricted by the property owner. As such, even with clear signage on the vehicle, any motor trader can limit or prohibit dash cam use on their premises.
A basic precaution would be to inspect all vehicles for dash cams. These devices only create problems where they record information that, for whatever reason, the garage does not want to be made public.
Whilst we are yet to see any significant security problems due to dash cams, we have had several instances where staff behaviour has cause problems. This has ranged from harmless but unflattering comments about the owner to speeding during the test drive.
Where a camera is present, staff should at least be on their best behaviour!
As both the property owner and employee can withdraw such consent, businesses can put clear policies in place to prohibit and/or limit dash camera use. However, do you want to.
There are many legitimate reasons for prohibiting video recordings on your premises. These can include protecting customers’ privacy and property from damage or to protect sensitive data/security. However, customers may want to know why this was necessary and what is the business hiding.
Yes. However, we would advise that customers are clearly advised this will happen. You also need to be careful. You will be liable for any damage to the dash cam if you are negligent. It is also important to ensure that dash cams are turned back on after the work is done. We have had incidents where accident that would have bene recorded have not been. Whilst this will not automatically result in a liability for the motor trader, it is possible, and it will at least damage your reputation.
There is no right answer in this area. Dash cams can establish good practice and reputation, but they can also result in damage to your reputation or worse. For example, dash cam footage could mean that the layout/ contents of your Worksop could be put online or that alarm and security codes are recorded. There has been a case where a workshop was caught by the customer’s dash cam racing the customer’s car at speeds up to 118mph. You will need to assess the risks of cameras to your business.
“I have been trading with another company for some time, but I am now having difficulty contacting them and they are not paying the debts. I’ve been told that they have failed and what do I do.”
It’s a sad fact of business life, but from time to time companies with which members trade will fail. Often such failures leave large debts to creditors, so what do you need to know if you become a creditor to a failed company?
When a company is failing it will have a number of options. If the company is capable of being rescued, or there is a tangible benefit to creditors, then it may enter Administration. Here all debts are frozen, and an independent expert appointed to run the company as a going concern, or to achieve the best possible outcome from creditors if this is not possible.
If it is not possible to save the company it will enter Liquidation. Here it is not possible to rescue the company and an independent expert will be appointed to wind it up.
Yes. Any debts due will still be owed to the company. They will continue in a non-trading state in order to collect debts. If the company is in administration, when it is restructured it will be sold and start again and any debts will be dealt with. If not, then once the liquidation has been finalised the company will cease to exist.
This will depend on your status. If the company enters Administration, then payment is possible once it is returned to a going concern. If the company enters into Liquidation, the company will collect in all debts as part of the insolvency process. Once all debts are collected, the amount recovered will be distributed between the creditors. Any secured creditors will be paid first, and in full, in line with their securities. Once these are settled, any remaining creditors will be paid a percentage of their debt.
Rarely do unsecured creditors get paid if the company enters Liquidation. Even if a payment is made, it is highly unlikely that a significant percentage of the debt will be recovered.
I cannot say. You can gain a security over company assets in a number of ways.
The most likely will be a specific charge over an asset, similar to a mortgage. Most asset specific securities require a legal agreement between the parties. If you believe you hold such a security, you should review any written agreements as a matter of priority.
If there is no specific agreement, the most likely security held by a motor trader is a ‘Lien’ on the vehicle or goods held. Where you have carried out work that is more than maintenance, you may hold a ‘Lien’ on any vehicle or goods. If you are normally paid before you release the vehicle or goods to the owner and the company fails before you are paid but while you have the vehicle or goods, you may be able to withhold the vehicle or goods from the owner until you are paid. Furthermore, you may be able to sell any vehicle or goods to settle your debt. This is complicated, so it is essential that advice is taken as soon as possible.
Where you have supplied a product to the failed company, check your terms to see if legal ownership has transferred at the time of failure. If the goods remain your property, then it is essential that the rights of ownership are exercised immediately. Any goods may be recovered to you and their value used to reduce the money owed.
If you bought and sold products and services to each other, and any goods and services have already passed to the failed company, you may have ‘a history of mutual credits and debits’. In this case you can offset that money owed to the failed company against that money owed to you by them.
For example, where the motor trader owes the failed company £1,000, and the failed company owes the motor trader £500 then the motor trader can withhold their £500 in order to reduce the amount they owe.
This right cannot be excluded under the contract. If there is the potential for such a relationship, it is essential that advice is taken as soon as possible.
This is a trickier question and will depend on the nature of the contract and services provided.
Where the failed company is a parts supplier, then you will remain liable to your customer for the quality of any work, including the parts supplied. Where a parts supplier would normally arrange for a repair or replacement, this will no longer be an option and will result in a greater risk to you.
The same applies where the failed company is a supplier of work. You will have a liability to the failed company in the event they are sued for a fault on your work. However, this is unlikely if they are in liquidation. A much more difficult question is whether the ultimate customer can overreach your supplier and hold you responsible. Again, statutory protections apply, but this is arguable where your contract with the failed company excluded the Contract (Rights of the Third Party Act) 1999. It is essential that advice is taken as soon as possible on this point.
The effects of a company failure will depend on how much money you are owed, and prevention is much better than cure. Often the first sign of a problem will be difficulty in obtaining payment and an increase in the length of time taken to pay. You should maintain accurate records of the payment terms between you and your suppliers/customers and monitor these regularly. As this is a general guide only, any motor trader who is looking for more advice on this matter, or even assistance should us for more detailed position.
Unfair Dismissal: Qualifying Period
It has long been established that an employee needs 2 years’ service to claim normal unfair dismissal under the Employment rights Act 1996.
That protection in fact applies a statutory week below the 2 years in most cases because the Courts have held that in effect the statutory minimum notice of termination should be taken off the 2-year qualification requirement.
In a recent case Lancaster and Duke v Wileman the Employment Appeal Tribunal has confirmed that this reduction of the 2-year period by the statutory notice does not apply when an employee is dismissed for gross misconduct just short of the qualifying period for unfair dismissal.
In this case the Claimant had been dismissed 2 days before her 2-year anniversary. She claimed unfair dismissal by applying the above rule that the statutory minimum notice of 1 week would have taken her “over the line” of the 2-year rule.
The Respondent employer argued that by virtue of Section 86(6) of the Employment Rights Act 1996 the employer was still entitled to dismiss without the statutory notice being added where the Claimant employee was guilty of (alleged) gross misconduct.
The EAT has reconfirmed in a case to be welcomed by employers that if the Respondent had been entitled to dismiss without notice (i.e. for gross misconduct) then no statutory notice could be added and therefore the employee could not claim normal unfair dismissal.
The case was remitted back to the Tribunal to consider whether in fact the employee had committed an act of gross misconduct. If they had then there would be no unfair dismissal, if they hadn’t then the statutory one week reduction would apply so the Claimant would be able to claim unfair dismissal.
Employers in the motor industry are advised to take particular care where dismissals are approaching the 2-year rule and you can seek advice from the RMIF legal helpline in such situations.
Don’t forget, this advice is general in nature and 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, call 0845 305 4230 at any stage for advice and assistance as appropriate.