IGA News

Be Aware - October 2018

Be Aware - October 2018

28 September 2018

Abandoned Vehicles

“I have repaired a vehicle and it is ready for collection but all I have is a telephone number and the owner is now not responding, what can I do”

First things first, your options are limited if you do not have an address as any of the processes will require you to write to the owner. Now is the time to review your processes and re-iterate the point to all staff that no work should be instigated without confirmation of a name and address.

Ok, so how do you get it if you don’t have it?

Stage 1 – obtaining the keepers details

The DVLA can release details of the registered keeper of a vehicle if you can satisfy them that you have a legitimate need for the information. As a company you need to contact the DVLA and request V888/2. You will be required to confirm your details and provide a quick explanation as to why the information is required. It should be sufficient to confirm brief details of the contract and the fact that you require the information in order to pursue legal proceedings. The fee for this is £2.50 per vehicle and you should receive a response within a few weeks.

More information and an electronic version of the form can be found at www.gov.uk/request-information-from-dvla.

Stage 2 - initial contact

Once you have the address you need to send a letter to the owner requesting payment. It is now time to consider whether you will pursue the matter through court or whether you can sell the vehicle under the Tort Interference With Goods Act 1977

Taking the owner to court - 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. 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.

Selling the vehicle - 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.

Stage 3 - The letter

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.

Don’t forget to carefully document all conversations and to evidence all telephone calls, emails and letters for future reference. Also, 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 at any stage for advice and assistance as appropriate.

Dismissing an Employee for Criminal Behaviour outside of Work

“My employee has been arrested and charged for assaulting a member of the public. It was outside of working hours but I don’t want to keep the employee now I know about what they did. Can I dismiss them?”

What is his or her length of service? If the employee has under 2 years’ service, then the procedure is easier, and the risks are less. If the employee is coming close to 2 years’ service then you should take advice, as the 2 years can be reduced by a week below the 2-year period. Sometimes, also, an employer’s own disciplinary processes can be contractually binding, which can give rise to a breach of contract claim. If you are in doubt, seek our advice.

Under 2 years’ service

Subject to the point above, if the employee has not been with you for 2 years, then whether you dismiss is very much at your discretion. If you investigate the incident and believe, after investigating, their conduct was not acceptable, then you can dismiss with minimal risks.

It is still advisable to lay a basic paper trail by inviting your employee to a meeting in writing, set out the charges, give your employee the right to be accompanied and holding a meeting. Best practice would be to confirm the decision in writing with the reasons and offer a right of appeal.

It would unlikely to be deemed “gross misconduct” if the criminal act was outside of work, but you could terminate employment and pay notice in lieu, if that was your decision. If the employee felt this was “unfair” due to mitigating circumstances, that would not necessarily give the employee the right to any claim in an Employment Tribunal.

It is of course possible for employees with under 2 years’ service to argue that the dismissal was for other prohibited reasons or tainted by some form of discrimination, but if you have a clear paper trail as set out above, then that is a difficult claim for an ex-employee to bring against your business.

Over 2 years’ service

With employees over 2 years’ service, then the legal situation changes dramatically. Unless the criminal act outside of work can be said to have significantly affected the employment, then it can be potentially unfair to dismiss.

Dismissals can sometimes be fair if an employer follows a fair procedure and any of the following apply:

  • Other employees won’t work with the employee in question because of the nature of the offence; and /or
  • The nature of the offence affects the job, e.g. fraud, if the employee is working in financial services, or has a responsibility for money; and / or
  • If a criminal event is well publicised in the local community and linked with the employer, that can potentially be a fair reason for dismissal if it affects the business’ reputation; and / or
  • If the nature of the offence leads to the loss of some important qualification or requirement for employment. Commonly of course in the motor industry, the loss of a driving licence can justify a fair dismissal, if driving is integral to the job.

With any employee with over 2 years’ service you would be well advised to take legal advice on the procedure and the risks in dismissing.

Constructive dismissal and affirmation of an employment contract

It is well established in employment law that if the employer commits a fundamental breach of contract, then the employee can resign in response to that breach and (subject to a length of service criteria of 2 years) claim constructive unfair dismissal. The employee loses that right however if, after an alleged breach of contract by the employer, instead of resigning they are found to have waived that breach by continuing to work, or otherwise acting to affirm the employment contract is still alive.

The High Court have recently reconfirmed that resignation on a lengthy notice period can constitute affirmation of an employment contract. In Brown and Anor v Neon Management Limited and Anor the Defendants breached the Claimant’s contracts of employment. In response, the Claimants resigned on notice (rather than with immediate effect) alleging repudiatory breach of contract. The High Court found that resignation on a lengthy period of notice (here 6 months or more) constituted an affirmation of the employment contract thus keeping it alive in the absence of further breaches of contract.

This is helpful clarification from the High Court, as there have over the years been many other decisions in which an employee works on but is said to working under protest or raising a grievance, such that the Employment Appeal Tribunal have found that working on during notice does not necessarily always constitute a waiving of the breach.

Although that was good news for the employer in this case (and for employers generally) the High Court went on to find that, subsequently, during the notice period the employer then made unwarranted findings and allegations against the employees, without proper foundation, which amounted to further fundamental breaches of contract, supporting the employee’s claims.

Establishing Disability and Knowledge for Discrimination Claims

In the Recent case of Mutombo-Mpania v Angard Staffing Solutions Ltd the EAT has had to consider in detail,

  • Whether an employee can prove disability without evidence on the impact of his impairment on normal day to day activities? And if so
  • Does an employer have constructive knowledge of disability if the employee has denied having one?

The Claimant worked for an organisation that provided staff to the Royal Mail Group. On joining he did not indicate disability on his application form and failed to disclose a disability on a health form. The employee had previously worked night shifts but when asked to work regular night shifts the employee sought to rely on a diagnosis of Essential Hypertension as a disability which required reasonable adjustments.

When this was not considered the Claimant pleaded disability discrimination. It was agreed that the employee was receiving treatment but still suffered symptoms including headaches, fatigue, breathing difficulties and lack of confidence. At the hearing the employee provided no evidence to the tribunal of how his symptoms actually impaired his ability to carry out normal day to day activities.

The court held that when pleading disability discrimination, the burden of proof is on the Claimant to demonstrate substantial adverse effect. He failed to do so and did not meet the section 6 Equality Act 2010 definition.

In any event the employer did not have any knowledge of the condition. Even if the employer was under a duty to ask questions, a vague reference to a “health condition” did not infer constructive knowledge. The employee had previously worked night shifts and had denied having a disability.

It must be remembered that this case was dependant on its facts. However, this is a useful case for Employers who may face claims of a disability from an employee as consideration must be given not only to the nature of the condition but the effect on the activities concerned. Also, whilst an employer must not be wilfully blind to a medical condition where a condition has bene denied there must be sufficient reason for an employer to question this denial.

Conclusion

Don’t forget, all of the advice above 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, the direct member helpline or 0845 305 4230 at any stage for advice and assistance as appropriate.