Be Aware - October 2019
As with any motoring business, where you provide courtesy cars or test drives there will come a time when the driver has broken the law and you receive a request from the Police for the Drivers Details. What can you expect and how should you respond?
The first notice that you are likely to receive of any issues is Notice of Intended Prosecution.
The purpose of a NIP is to inform a potential defendant that they may be prosecuted for an offence. A NIP must be served on the Driver or registered keeper within 14 days. This can either be done through the post or at the roadside where the vehicle is stopped by a police officer.
A prosecution cannot proceed if the NIP is not provided within 14 days. However, a notice shall be deemed to be valid if it was posted to the last known address, notwithstanding that the notice was returned as undelivered.
Also, small mistakes on the notice will only render it ineffective if it would mislead the potential defendant.
Most, if not all, NIPS will be accompanied by a request for the driver’s details. If you are the registered keeper of the vehicle there is a legal requirement to provide the driver’s details. Failure to provide the driver’s details is itself an offence under section 172 of the Road Traffic Act 1988 and this also carries points and a fine. In fact, in most cases the penalty for not providing the Driver’s details are more than the original offence and for most speeding offences is double.
It is strongly advised that the driver’ s details are provided.
No. Where the information is necessary for compliance with a legal obligation, such as responding to the police, then this will be lawful processing even if the data subject objects.
Then all you can do is respond honestly. There is a limited defence to not providing the details where you did not know who the driver was and could not have found out with reasonable diligence.
However, this is not an excuse to not keep a record of driver details or “forget” who it was. The courts will as part of any case test such a defence. If the evidence to support your defence is insufficient then this can be taken into consideration when a court sentences you.
This is also less likely to apply if you are a company as the court will require a relatively robust system of control to be in place and that any failure to keep a record was reasonable. This can be quite a high bar.
It is very important that any NIP or request for information is dealt with promptly. It is important to provide the driver’s details promptly and accurately, or if you were not the registered keeper at the time to provide the true keepers details. Failure to do so is likely to result in a larger fine and more points and can result in personal and company liability.
Yes, but only if the term is in the contract and reasonable.
In a recent case of Crash Services Limited v AXA Insurance Ltd  in Northern Ireland, Crash Services argued that AXA’s standard consumer insurance policy terms requiring repairs to be undertaken by an approved repairer were unfair and too uncertain to be enforceable.
The facts of the case are that H took out a standard comprehensive car insurance policy with AXA. They had a minor accident and made a claim. When she requested that the repairs be undertaken by her local garage, AXA wrote to her to say it was not an approved garage and it would only pay what its engineers calculated was due for repair costs. As she didn’t agree, Crash Services was engaged by her garage to inspect her car and make the insurance claim.
Crash Services advanced two arguments against the contractual requirement of an approved repairer:
- The term was not a “core term” of the contract and so should be assessed for fairness under the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR); and
- Was unenforceable as it was too uncertain.
After consideration, the Judge decided that the approved repairer clause was not a core term and so could be considered for fairness. However, after considering whether this disputed term was fair or not, the Judge ruled that that the “impugned term is not unfair since in my view it provides for a procedure that allows for the fulfilment of the obligation to cover the reasonable costs of repair”.
The Judge then went on to consider and dismiss the challenge to the approved repairer clause on the basis that it was void for uncertainty.
In some respects, the decision that this particular term was fair is not the point. By ruling that the term itself is capable of being considered under the UTCCR the court has opened the possibility that such clauses can be challenged where:
- A term is so weighted in favour of the supplier as to tilt the parties’ rights and obligations under the contract significantly in his favour’;
- A term is not expressed fully, clearly and legibly, containing no concealed pitfalls or traps’;
- The term appears on the list contained at schedule II of the Act presumed to be as unfair
The court will always have to consider the nature of the goods or services, all the circumstances attending the conclusion of the contract and all the other terms of the contract or of another contract on which it is dependent. In this case the fact that the insurer did not outright refuse the insured body shop but in the alternative agreed to assess the damage and contribute the costs payable to an approved repairer appears to have been key.
To bring a claim for Disability Discrimination under the Equality Act 2010, a Claimant has to satisfy the Tribunal that they are suffering from a physical or mental impairment that has a substantial adverse impact on normal day to day activities and is “long term” meaning lasted or expected to last more than 12 months in total. In a recent Employment Appeal Tribunal (EAT) case Parnaby v Leicester City Council the EAT held that the Tribunal had erred in Law in not considering all limbs of that test properly.
In the case, the Claimant was off work with depression caused by work related stress. The Claimant was able to show that he had a mental impairment and that it had a substantial adverse impact on his normal day to day activities. At the time however of his dismissal (which was the claimed discrimination), the impairment has not lasted for 12 months. The Tribunal therefore ruled that the Claimant was not disabled, because the impairment was not long term. The Claimant appealed to the EAT.
The EAT ruled that the Tribunal had fallen into error by assuming that the likely future duration of the impairment (at the time of dismissal) would be time limited by the Claimant’s dismissal, which would then remove the source of the impairment (i.e. the stress of work that caused the depression). That was the wrong analysis. The Tribunal should instead have considered whether the impairment was likely to last 12 months or whether it might reoccur in the future. The EAT said the Tribunal had made an assumption that removing the stress would remove the impairment. However, following earlier Case Law, the proper test to assess whether or not an impairment was likely to reoccur in the future was a predictive one. Tribunals have to consider whether it “could well happen” in the future. “Could well happen” means “more probable than not”. The Tribunal had not considered this in reaching its decision and therefore the EAT overturned the Judgment and remitted the case back to the Tribunal to properly apply the tests.
The case is a reminder of the increasingly broad protection for employees under the Equality Act.
“I have an employee who has been absent from work since last July and has exhausted her statutory sick pay. This looks to be long term as she has had a tumor and operations. We have asked for her consent for a Consultant’s report but she has refused and now her family is saying she is too ill to sign and give consent for the report.
Based on the information we have to hand, can we terminate her employment? We wanted to get a view on her health to see whether we continue or terminate her contract. We are very sympathetic to the situation but we do have a business to run and her absence is causing strain on her department“.
Following the decision in O’Brien v Bolton St Catherine’s Academy, employers have to take care when considering a dismissal on the grounds of long term ill health. In the O’Brien case, Ms O’Brien was off sick with stress for over a year and, following a medical incapacity meeting, was dismissed on the grounds of long term sickness absence. She was successful in her discrimination claim at the tribunal; however, the Employment Appeal Tribunal overturned that decision finding that the tribunal had gone too far in expecting the employer to cope with Miss O’Brien’s absence any longer. Unfortunately, it then went up to the Court of Appeal who restored the original decision finding that there had been discrimination. Although the outcome does not assist employers, what does is the fact the Court provided valuable guidance for employers when considering long term sickness dismissals, so we can consider the same.
There are three important points provided by the Court of Appeal to consider:
- It is not necessarily unfair to decide to dismiss an employee who is absent for more than twelve months if there is no certainty as to when the employee will be able to return;
- The impact and severity of the same of the employee’s continued absence must be a significant element when determining at which point dismissal becomes justified*; (*The courts are saying that tribunals will expect to see evidence of the disruption to the business.)
- Where an updated medical report is provided, the decision to dismiss must be fair based on the information available to the employer at the time.
The reason Bolton St Catherine’s Academy lost at the Court of Appeal was because Ms O’Brien at her appeal hearing produced a medical report which said she was fit to return imminently. They failed, therefore, in taking that into account and overturning their original decision to dismiss. Had it not been the case that she had presented such a report then it is more likely than not the Court of Appeal could have upheld the EAT’s ruling.
In short, therefore, this case means that employers are not expected to wait forever for employees to recover from illness and, therefore, dismissal is feasible and should not necessarily be unlawful.
Turning to your situation with Jane, therefore, clearly you don’t even have a medical report because she is refusing consent to provide the same. In the circumstances the company would have grounds to argue that the decision they are seeking to make is based on all the evidence available to them at the time; due to the refusal. It would be different, for example, if she gave consent and the report favourably said she would be returning shortly.
Given, therefore, that you are in somewhat of a hiatus, the fundamental question to ask is whether “her continued absence is having a severe impact on the business”. If so and therefore there is too much strain to wait any longer for an improvement in her health, then that should assist to justify your decision for proceeding with a dismissal. If you can provide evidence to show the impact to the business, then the company would be in a stronger position to take action. If, however, it is not an inconvenience to the business with her being off then arguably, therefore, applying the decision from O’Brien, the company may unfortunately have to wait further for her health to improve or, proceed on a commercial basis and take on board the risks.
It should be noted that this case is not only a County Court Judgment and therefore not binding on any other court, but also that this case was heard in Northern Ireland and considered the UTCCR which has now been superseded by the Consumer Rights Act 2015 (CRA).
That said, this case is a useful example of the issues to be considered. Whilst the concept of an approved repairer itself is unlikely to be unfair, the wording of any clauses and the extent to which it is brought to the insured’s attention and applied will have to be. It remains to be seen how this concept develops.
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 on the direct member helpline or 0845 305 4230 at any stage for advice and assistance as appropriate.