IGA News

Be Aware - November 2019

Be Aware - November 2019

31 October 2019

Improper Behaviour under Section 111A of the Employment Rights Act 1996

RMIF members may be aware of this section of the Employment Rights Act 1996. It was introduced several years ago and in essence the section allows certain conversations between employer and employee to be inadmissible in any future Tribunal litigation. The idea was for employer and employee to be able to have open and honest conversations about issues that could lead to dismissal or resignation and to settle those matters out of the Tribunal, without having any such honest discussions used against them in litigation.

Since Section 111A was introduced however, it has just been clarified that there are certain important limitations on that non-admissibility of evidence. Where any allegation of discrimination is asserted in a Tribunal claim, then such discussions can still be admitted. A further area where discussions can still be admitted in litigation, is where there is “improper behaviour” on behalf of either party (but usually alleged to be on behalf of the employer).

The Employment Appeal Tribunal in Harrison v Aryman Limited has just given employers some degree of protection, as it is recently held that where a Claimant simply asserts that there was improper behaviour by an employer when negotiating a settlement that should be excluded from litigation. It is, instead, necessary for the Tribunal to decide that there was actually improper behaviour, by making findings of fact on that issue, before admitting it into the litigation evidence, so an assertion of improper behaviour is not enough.

By contrast, employers still have to be aware that where the circumstances of any dismissal are alleged to be automatically unfair (often because of discriminatory allegations), then it is sufficient for the Claimant to put their case in that way to the Tribunal for that evidence to be admissible (i.e. an allegation is enough).

If RMIF members find themselves in such conversations, they are advised to call the RMIF Legal Helpline who can assist with bespoke advice.

Lay-off and short-time working

“We have reserved the right in our contract of employment to lay-off an employee or put them on short-time working.

How much notice are we required to give the employee before we implement the lay-off or short-time working arrangement?”

There is no statutory right to lay-off employees or keep them on short-time working. An employer can impose a lay-off or short-time working arrangement generally only if there is a contractual right to do so or the employee has consented to it.

When it comes to what notice an employer is required to give to implement a contractual right to lay-off an employee or put them on short-time working, there is no legal requirement for there to be notice of any specific length. However, any contractual right to implement a lay-off or short-time working should be exercised in accordance with the implied term of trust and confidence. A serious breach of the term of trust and confidence where, in the manner it implements the lay-off or short-time working, the employer behaves in a way ‘which is calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee’, may give rise to a claim of constructive dismissal.

What would be considered reasonable behaviour on the part of the employer in this context is likely to depend on the specific circumstances. In the normal course, it may be reasonable, for example, to:-

  • meet with the affected employee(s) to explain the circumstances, and the proposal to implement a lay-off or period of short time working
  • provide information about when it will take effect, and for how long it is expected to last
  • give the employee(s) an opportunity to ask questions, raise concerns or make alternative proposals
  • explain what arrangements are proposed in relation to pay (bearing in mind any contractual entitlements in this regard), and if relevant, the process for claiming a guarantee payment
  • give the employee(s) as much notice of the arrangement as possible
  • follow up in writing, confirming the outcome of the meeting

In Conclusion

Any conduct on the part of the employer to implement a lay-off or period of short-time working without warning or consultation will be scrutinised by an Employment Tribunal in the context of its overriding obligation to behave reasonably and sensibly, notwithstanding the existence of any express contractual right.

Distance Selling

As the online sale of vehicles becomes more prevalent, more and more consumers are looking to buy a vehicle further from home. As more sales are started at a distance it is important to know what the legal obligations are on businesses as well as the risks and costs of doing business at a distance.

Selling at a Distance

The current regulations governing distance sales are the Consumer Contracts Regulations 2013 (Consumer Contracts Regulations) which came into force 13 June 2014. If you have not amended your terms and conditions recently you need to make sure that they represent the current legal protections as a number of things changed.

What types of contract

One very important difference between these and the previous distance selling regulations is that they incorporate both distance contracts as well as those contracts previously covered by the doorstep selling regulations.

The Consumer Contracts Regulations therefore define 3 different types of contract between a Trader and a Consumer. These are important because they define what your duties as a trader are in each situation:

  • Distance contract
  • Off-premises Contract
  • On-premises contract

Distance Contract

A distance contract is a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer. A distance contract must be concluded exclusively through one or more means of distance communication.

Any face to face contact will prevent a contract being a distance contract. It is not a distance contract to take a deposit over the phone provided the consumer can change their mind and get their money back in full upon attending your premises.

Off-premises Contract

An off-premises contract is a contract between a trader and a consumer which is :-

(a) concluded in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader;

(b) where an offer was made by the consumer in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader;

(c) concluded on the business premises of the trader or through any means of distance communication immediately after the consumer was personally and individually addressed in a place which is not the business premises of the trader in the simultaneous physical presence of the trader and the consumer;

(d) concluded during an excursion organised by the trader with the aim or effect of promoting and selling goods or services to the consumer;

On-premises Contract

An on-premises contract is a contract between a trader and a consumer which is neither a distance contract nor an off-premises contract. Whilst many consumer protections still apply, there is no automatic right of cancellation under the Consumer Contracts Regulations.

It is very important to know which of the 3 above contract types you have entered into as many traders have entered into an off-premises contract believing that as there is face to face contact these regulations do not apply.

Now that you know the type of contract entered into, what are the requirements of the Consumer Contracts Regulation.

Pre-Contract Information

Where you entered into a Distance or Off-premises contract you must prior to entering into the contract provide the consumer with certain information in a ‘durable format’ and confirm this information at the time of delivery of the goods. This information includes:-

• the main characteristics of the goods or services being sold;

• your business details including any trading name, your address, your telephone number, fax number and e-mail address;

• if you are acting on behalf of another trader, their details as above;

• you need to state that you are under a legal duty to supply goods that are as described;

• full financial information including:-

o the total cost of the goods or services inclusive of taxes;

o all additional delivery charges and any other costs;

o if it is an ongoing contract or subscription service, the total costs per billing period or the total monthly costs;

o if there are charges that are not incurred in a face to face contract, e.g. handling charges, you have to highlight these additional costs.

• if applicable, how long will the contract last, and the conditions for terminating the contract;

• how the goods or services are to be paid for;

• the terms and conditions relating to any deposits or guarantees paid by the consumer;

• delivery details and process, including :-

o how and when they are to be delivered;

o by whom.

• confirmation of either :-

o the right to cancel, including the conditions, time limit and procedures (see example terms and conditions); or

o if your goods are bespoke or customized, you need to clearly state that there is no right of cancellation.

• that a charge will be made in the event of cancellation for any reduction in value of any goods (see example terms and conditions);

• whether the consumer will have to bear the cost of returning the goods in case of cancellation;

• any details of after-sale customer assistance, after-sales services and commercial guarantees, e.g. warranties;

• where applicable, any complaint handling policy.

You can provide this by email when the order is placed and through a hard copy on delivery.

Cancellation rights

Where you entered into a Distance or Off-premises contract, the Consumer Contracts Regulations provide a consumer with 14 days to change their mind. The cancellation period starts when the consumer has received both the goods and written confirmation of their rights.

If the consumer is not provided with a written confirmation of their cancellation rights, then this is extended by 12 months. Furthermore, if you have not notified the consumer of the charges that will apply on cancellation, such as delivery and usage charges, they are not enforceable.

Get this wrong and you will be required to reimburse a consumer 100% of the monies paid for any goods up to 12 months and 14 days from delivery without any ability to deduct an amount for use.

Cancellation charges and procedures

The consumer is entitled to a refund within 14 days of cancellation. They have a further 14 days from any cancellation to return the goods.

Upon cancellation a consumer is entitled:

  • to 100% of the amount paid for any goods, less any amount for the reduction in value of the goods over and above that necessary to test them;
  • to 100% of the costs paid for delivery at the least expensive common and generally acceptable kind of delivery offered by the trader.

No ‘restocking fee’ of any kind can be charged.

Where you have entered into a distance contract you can require the consumer to return the goods without undue delay to any address specified within the contract.

Where you have an Off-premises contract and deliver the goods to the consumers home you must collect them at your own cost.

Notable exceptions

There are some exemptions to the regulations.

These regulations will not apply where the sale is truly a one-off made in response to a customer request. This will be a question of fact for a judge to decide on a case by case basis.

These regulations will not apply where the goods are made to the consumer’s specifications or are clearly personalised. This is intended to cover goods that would be difficult to sell to anyone else, e.g. a bespoke tailored suit. It is unclear how far a vehicle must be tailored to come under this exemption. Guidance from Trading Standards is clear that selecting from pre-arrange options will not be sufficient. The more extreme the bespoke nature of the goods the more likely this will apply.

These regulations will not apply to goods sold at Public Auction. For this exemption to apply the auction must be a transparent and competitive bidding process, to which the consumers have the option of attending in person and the successful bidder must be bound to purchase the goods.

Whilst the consumer does not have to attend the auction they must have been able to should they wish. This is expressly designed to exclude eBay type auctions.

Conclusions

This is a general guide to the Consumer Contracts Regulations and main aspects of how they affect the sale of goods at a distance. This advice is general in nature and will need to be tailored to any one particular situation. Should you regularly enter into contracts at a distance or off-premises you should consider tailored legal advice to ensure you fully understand the risks to your particular business practices.

Remember, where you are member of an industry body you may have access to legal advice and assistance.

Motoring offences, PCNs and Parking fines etc….

As a motoring business if you lend out courtesy cars there will be times when those cars incur fines, parking charges, Penalty Charge Notices (PCN’s) or even criminal motoring offences such as speeding. It is important that members are familiar with issues raised by each of the above, and the different duties that are required when responding to each one. The information below is intended as a guide to the issues surrounding each area. It does not replace legal advice. As such we would always advise members to seek independent advice at the earliest opportunity. As members you have access to the RMI’s own telephone legal advice line included in your membership fees.

Criminal Motoring Offences

This is the most serious possible situation. There are a number of possible offences that can be committed in your vehicle. The most likely offences that a garage as the registered keeper will encounter are camera enforced offences such as speeding offences or failing to stop at a red-light. In these instances, as the registered keeper you should receive a ‘Notice of Intended Prosecution’ or NIP, within 14 days of the offence. In this case you have a duty to identify the driver of the vehicle and return the NIP within 28 days even if you do not know who was driving. Failure to return the NIP, or a failure to identify the driver are separate offences which can lead to a fixed penalty or a current maximum sentence of £1000 and 6 points.

In the event of receiving notice of a criminal offence:

1. Do not ignore. Contact the RMI legal advice line immediately on 0845 8399205

Council Enforced Offences

The Road Traffic Act 1991 (c. 40) provided for the decriminalization of parking-related contraventions. This was updated by the Traffic Management Act 2004 and subsequent regulations. In short, councils have taken the place of the police for a number of minor motoring offences relating to traffic management.

Garages should be very vigilant as a number of private landlords produce notices deliberately similar to those produced by local councils in order to obtain payment. Any council enforced PCN should have clear details on how to appeal both to the council concerned as well as to the independent tribunals PATAS and NPAS. If this is not clearly stated, then you have likely received a demand for payment from a private landlord.

When the vehicle is a council enforced offence, in the majority of cases at the time of any ‘offence’ a Penalty Charge Notice or PCN will be attached to the vehicle (there are some cases enforceable by camera). If payment is not made within 28 days the council concerned will have between 28 days and 6 months to serve a Notice to Owner (NTO). This is to allow the owner to make representations regarding the PCN to the council concerned. This is important as it is the owner who is liable to pay any PCN not the driver. The owner can make any representations to the council regarding the PCN as to whether it was validly issued. However, as you were not the driver at the time your evidence will be severely limited. The owner can only avoid liability if :-

1. the PCN was incurred by a person who was in control of the vehicle without the consent of the owner; or

2. the vehicle is hired under a vehicle hire agreement and the agreement contains a statement signed by the hirer acknowledging their liability for an PCN issued during their hire period

These are very limited situations and depend on the agreements in place when a courtesy car is provided. It would therefore be beneficial for garage to review the agreements in place when providing a courtesy car to ensure that the driver has accepted liability for PCN’s. The RMI legal advice line can assist on 0845 8399205 with further advice.

Do not ignore a PCN. When a PCN is received, it should be assumed that you will be liable unless proven otherwise. If you should be required to settle any PCN it is likely that this amount can be recovered from the driver of the vehicle.

In the event of receiving a PCN :-

1. make sure that this is a council enforced PCN, many private car parks use formats deliberately similar in order to obtain payment

2. review the contents of any hire/courtesy car agreement to see if the driver has accepted liability for the PCN

3. contact the driver and investigate the facts of the case

4. contact the RMI legal advice line for legal advice as required on 0845 8399205

5. either admit the PCN or challenge informally with the council and then through either PATAS or NPAS as appropriate

Private car parks

These are likely to be the most common type of fines received. Generally parking on private land is governed by contract law principles. Provided there are clear terms and conditions displayed in the car park upon entry a driver agrees to be bound by these by parking and leaving their car there. You should note from the outset that such tickets are very different from those issued by local authorities. Parking tickets on private land cannot lead in any way to any criminal proceedings and they are not a ‘ticket’ as such but a notice saying that they intend to take you to the civil court for trespass, in effect, breach of contract.

A parking operator has no legal right to recover a parking fine without first taking court action against you for breach of contract. What is also important here is that it is the driver not the owner of the vehicle that agrees to park on the property and so any legal liability to argue the case or settle any amount lies with the driver. However, if you do not provide the drivers details when requested where the driver cannot be identified that the registered keeper is liable for any such fines.


In the event of receiving notice of a fine from a private car park :-

1. contact the private landowner informing them that whilst you are the registered keeper you were not the driver at the time.

2. provide the driver’s details immediately, and

3. pass details of the fine to the Driver

In Conclusion

Where garages lend vehicles that they own they will have little control over the use by their customer. As such there will always be times where the garage, as the registered keeper, is left to pick up the pieces from any number of motoring matters. The biggest problems for garages occur not from the events themselves, but from ignoring them once notified. This will never solve the problem and as can be seen above can increase a garages liability.

General Note

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, contact us via the IGA Direct Member Helpline or 0845 305 4230 at any stage for advice and assistance as appropriate.