Be Aware - February 2019
As many RMI members will be aware, there have been some recent high-profile cases around employment status in the “gig economy”.
The Employment Appeal Tribunal previously held that Uber drivers would properly be regarded as “workers”, not self-employed contractors as Uber had claimed. This was appealed to the Court of Appeal.
In a decision on the 19th December (Uber B.V. and ors v Aslam and ors) the Court of Appeal upheld the Employment Appeal Tribunal’s decision and held by a majority (not unanimous) that the drivers are indeed workers.
The central question, as far as the Court of Appeal was concerned as regard workers status, was whether (as the drivers argued) Uber contracts directly with the passengers to provide driving services which the drivers perform with it or (in the alternative) whether as (Uber argued) it acts only as intermediary, providing a booking and payment service and the drivers drive the passengers as independent contractors.
Although the written contractual terms state the latter, i.e. Uber’s position, the majority of the Court of Appeal held the written terms did not reflect the practical reality of the relationship and therefore held them to be workers (thereby entitled to a range of statutory rights, payments and protections not available to the self-employed).
Due to the importance of the case, the Court of Appeal has however given permission to appeal to the Supreme Court, so this may not yet be the end of the story.
Many of the statutory protections that apply to employees do not apply to the category of ‘workers’ with the self-employed being the least protected of all. It is therefore often very important to be able to decide to which category a person belongs when considered their legal status.
The provision of personal service (that the individual himself or herself is providing the work) is one of the key elements in being an employee rather than being self-employed and in business on one’s own account. It has traditionally been the case that the right to use a substitute can therefore be inconsistent with employee status but the Employment Appeal Tribunal (EAT) has held in Chatfeild-Roberts v Phillips and Universal Aunts Limited (picking up on previous case law) that even if the terms of the contract include a right to use a substitute, that can still be consistent with employee status.
In the case the Claimant was a live-in carer. She worked for the First Respondent looking after his uncle who was described as “an irascible old man”! The Second Respondent to the claim was the agency who introduced the Claimant to the family.
The Claimant worked for the First Respondent for 3 years and she was paid gross and took care of her own tax and national insurance affairs. Following the end of the arrangement she brought a number of claims against the Respondents and one of the issues was whether or not the Claimant was an employee or self-employed?
The Employment Tribunal held she was self-employed notwithstanding the fact that there was a substitution clause. On the facts the Tribunal found there were sufficient mutuality of obligation between the parties and sufficient control for there to be an employment relationship. The Claimant had approached the Second Respondent (the agency) to arrange a substitute for herself when she was not available rather than providing a substitute directly for herself. The Respondent appealed the Tribunal decision.
The EAT considered the question of substitution, amongst other matters. The substitution had only occurred on her days off each week for a period of jury service and for periods of annual leave. Following the principle in the recently reported Pimlico Plumbers case the EAT held the right of substitution only when a contractor is unable to work can still be consistent with personal performance and so with employee status.
“I have received a complaint from a customer asking me about ADR. I don’t know what they are talking about, but do I have to do anything”
Alternative Dispute Resolution (ADR) is a way of solving disputes between dealers and consumers that does not involve the Court process. ADR has been gaining ground as a way to resolve disputes since around 2000. This culminated with The Alternative Dispute Resolution Regulations 2015 which puts a requirement on businesses to offer and consider ADR (but not necessarily to agree to it)
There are 2 main forms of ADR:
1. Mediation, where an independent mediator sits between the parties to try and reach a resolution; or
2. Arbitration, where an independent third party considers evidence from both sides and then gives a binding decision on the parties.
It has become noticeable that there has been an increased utilisation of ADR, particularly through organisations such as the RMI’s own ADR provider, the National Conciliation Service (NCS). This can be a cost effective and a timely route to solve disputes.
ADR can be a cost effective and a timely route to solve disputes. The Courts will look favourably on parties that engage in ADR as indeed this is built into their Court process. This can be seen in Small Claims actions as the parties are requested to consider Small Claims mediation before a Small Claims trial hearing takes place.
Indeed, the RMI code of conduct itself has ADR built into it and details of the National Conciliation Service can be found on the RMI’s website. If you are a Bosche dealer or sign up to The Motoring Ombudsman these also include ADR.
If you sign up to a code of conduct which includes ADR you are required to :-
1. Include details of the ADR process on your website, and within your terms and conditions.
2. Include details of the ADR process in any letter to a consumer where you have exhausted your internal complaints process.
Whilst you are required to refer a member to an ADR scheme, you are not required to reach an agreement, unless you have signed up in advance to a form of arbitration.
“I have a vehicle abandoned on my premises. What can I do?”
Generally speaking when a vehicle is abandoned you have 3 options:
- Taking the owner to court
- Selling the vehicle to settle the debt
- Reporting the vehicle to the local council as abandoned
If you are owed money for a repair or diagnosis but the owner doesn’t agree then you will have to take the matter to a Judge in order to get a definitive answer. The first step is to write to the owner of the vehicle setting out your case asking for payment, or asking him to set out his position in writing as to why he is refusing to pay or collect his vehicle. If there is no agreement after this, and there is a significant amount due, a court is capable of deciding who is right and how much is owed. Once this is decided then the court will be able to seize the vehicle and sell it to settle any debts. However, you have to be warned that a court Order only states that money is due, not that the owner has the money to pay. As you will incur court fees on top of any Judgment, this should be considered.
First off, you cannot just sell someone’s property because it is on your premises or because you are owed money. DO NOT apply to the DVLA to become the registered keeper. You are not the legal owner and will become liable for any TAX.
If you have carried out work that increases the value of the vehicle and the owner is in agreement that the money is owed but cannot, or will not come to pay for it, then you have the ability to require the owner to collect the vehicle and pay within 14 days, and if this doesn’t happen you can then sell the vehicle to settle the debt provided you give him 3 months’ notice. There are a number of requirements to get this right so we would strongly advise you discuss this with us so that we can take you through the steps required.
All Councils have the power to seize and destroy abandoned vehicles. Different Councils have different approaches and we are starting to see more reluctance from councils. Some will only remove from the public highway and some will only remove from private land for a fee. As such, if this is an option you want to pursue you should contact your local Council and discuss their requirements before going any further. When reported, the Council will be able to remove and, where there is no response from the owner, destroy the vehicle. This option is therefore generally best if the vehicle has been on your premises for some time or if you are not owed any money or you are willing to forego any debt
Either way you will need to write to the owner in order to try and resolve the matter amicably. Any letter should clearly establish what it is you want them to do and why it is you believe they are liable. You should include a copy of any invoice as well as a deadline by which to respond. This should be at least 14 days but can be more.
Where you do not have the customer’s address, then you should contact the DVLA. You can establish a reasonable cause for requesting this information, but if you have a contract that requires enforcement, or a vehicle abandoned on your premises, this should be sufficient. You can contact the DVLA for further information. However, at the time of writing, you will need to use the DVLA’s form V888/2.
Don’t forget to carefully document all conversations and to evidence all telephone calls, emails and letters for future reference.
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 the IGA direct member helpline or 0845 305 4230 at any stage for advice and assistance as appropriate.