Be Aware - October 2016
The Consumer Contracts Regulations (Information, Cancellation and Additional Charges) 2013 (hereinafter the ‘CCR’), have been in place for over 2 years. However, there are a number of basic problems that Motor Traders are still being caught by. We therefore take this opportunity to highlight the most common issues.
- Distance contracts - Just because a deposit is taken over the phone does not mean that the contract is a distance contract. Provided the consumer meets you face to face at your business premises prior to becoming legally bound to purchase either the vehicle or the service being provided then this will not be a distance contract. Consumers will not have the cancellation or information rights of a distance sale.
- Face to face contact - Is not enough to avoid the CCR requirements. Some members are trying to get around the CCR by either delivering vehicles to customers at their home or business to inspect, or by collecting vehicles for which services are being provided. This will not work. Whilst any face to face contact will prevent there from being a distance contract, this will be an off premises contract.
- Off premises contract - Any contract entered into away from the motor trader’s permanent place of business will benefit from identical information and cancellation rights as a distance contract. Moreover, if you are not careful you will not have informed the consumers of their rights.
If you have not notified the consumer of their rights they can cancel up to 12 months from the date of the contract. Further, you may not be able to make any deduction for the use of the vehicle during that time.
Carry over Holiday Pay when Sick
“I have an employee who has been off sick for three years. We are presently dismissing on the grounds of long-term ill health and he has questioned whether he is entitled for his full holiday for the last three years. What is he entitled to?”
The present legal position (as more recently confirmed by the Employment Appeal Tribunal) is that employees on long term sickness absence, who are unable to take their holiday during the annual leave year, accrue 20 days’ leave in each year. This is originally derived from case law a couple of years ago. However, further case law has confirmed that employees do not simply accrue 20 days year after year that they are absent. It is not the case that your employee would be entitled to 60 days due to being absent for 3 years. The courts have ruled therefore that leave cannot be carried forward indefinitely and there is a limit to 18 months’ carried forward from the end of the leave year. Therefore, the Working Time Regulations (specific to our laws) should be read to allow workers/employees to take annual leave within 18 months of the end of the leave year in which it was accrued.
Can the duty to make reasonable adjustments for a disabled employee extend to continuing to pay a higher salary when an employee is moved to a lesser role?
Yes, holds the EAT in G4S Cash Solutions (UK) Ltd v Powell. The EAT found no reason in principle why the duty to make reasonable adjustments would not extend to protecting an employee’s pay (along with other measures) to counter a disabled employee’s disadvantage. The objectives of the legislation plainly envisage an element of cost to the employer, and ‘pay protection’ was but one form of cost to an employer. The question will always be whether it is reasonable for an employer to have to take that step to avert a disabled employee’s disadvantage.
However, the EAT did not expect that requiring employers to make up pay would be an ‘everyday event’.
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 at any stage for advice and assistance as appropriate.