IGA News

Legal Update - August 2015

Legal Update - August 2015

30 July 2015

The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015

Recent European directives have concentrated on promoting Alternative Dispute Resolution, throughout Europe. The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015 passed into UK law in July 2015, so what do you need to do?

Traders Obligations

These are contained at regulation 19. From 09 July 2015 all members should include within their website, and their terms and conditions details of any ADR process to which they are subject. These should also be included in any letter to a consumer where you have exhausted your internal complaints process.

As all members are subject to at least the RMI Code of Conduct, you should look to making the amendments over the next few days. Details of the RMI’s National Conciliation Service should be included and can be found here. If you are subject to other ADR processes either through Motorcodes, Bosch or manufactures own processes these should also be included

As always this advice is general in nature. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Please contact us at any stage for advice and assistance as appropriate.

Paul Carroll

Solicitor

Motor Industry Legal Services

Right to be Accompanied

“I want to discuss a number of issues with one of my employees. His conduct has been poor and I also wonder whether I need his position at all? He is insisting however, that he won’t meet me unless his union is present, but we don’t even recognise a union? Can I ignore his request and hold the meeting?”

All workers have a right to be accompanied to a disciplinary or grievance hearing if he or she so requests it. The statutory right (which your contracts cannot give less than), is the right to be accompanied by a fellow worker or a trade union representative.

Many employers think that if they don’t recognise a union, then a union representative has no right to attend. That is wrong.

Whether or not the right to be accompanied applies depends on the purpose of the hearing. The right applies to all disciplinary hearings which could result in the worker either receiving a formal warning or the employer taking “some other action” with regard to the worker. It also applies to disciplinary appeal hearings. The right also applies to grievance and grievance appeal meetings.

In the scenario above however, note that the right does not apply to an informal meeting unless it falls within the categories outlined above. It also does not apply to a formal meeting which may result in dismissal on other grounds, for example on the grounds of redundancy or because of a business re-organisation.

Don’t forget that you are entitled, if the employee is a member of a union and wants to bring his union rep, to ask for certification from the Trade Union official to prove who they are.

Should the right ever be extended?

In some professions and particularly in the public sector there can be a right to bring a legal representative to a disciplinary hearing. Where the outcome of the hearing might result in a substantial or decisive effect on the worker’s civil rights or affect their ability to continue working in a chosen career or profession, then arguably it can be extended. In the motor industry, however, this is unlikely to apply in most circumstances.

Note, however, that if an employee suffers from a disability which adversely affects them at the hearing, then it may be a reasonable adjustment however to extend the statutory right if the employee requests the same.

What can they say at the hearing?

When conducting the meeting remember that the person accompanying the meeting doesn’t just have to be a silent witness, and can talk and make representations. They should not, however, become unduly disruptive or answer direct questions put to the employee themselves.

Remember, however, that as this is a statutory right there can be claims if you deny the worker the right to be accompanied or subject the worker or the accompanying person to any form of detriment. Dismissal on these grounds can also be automatically unfair.

Don’t forget that sometimes the trade union can be helpful. Much would depend on the character of the person accompanying. If the employee has been afforded the right to be accompanied by a trade union official, it can also be harder for the employee to later raise that matters were unfair, as they had advice of the union at the relevant time.

Lastly, 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 at any stage for advice and assistance as appropriate.

Andrew Macmillan

Solicitor

Motor Industry Legal Services

Giving References

“I have received a reference request from a new employer for one of my ex-employees. To be honest they weren’t very good and I was pleased when they left.

On the one hand, I don’t want to stop my ex-employee moving on, but I don’t want to mislead the new employer either. What shall I do?”

Generally speaking as an employer you are not (with limited exceptions below) under a duty to provide any reference for a current or former employee. If you do decide to give a reference there are a few basic rules to remember:

1. The employer must use reasonable skill and care to make sure the facts contained in the reference are true and accurate. An employer must also avoid giving an unfair impression, for example by focusing on only negative and omitting positive aspects.

2. Generally speaking, references do not have to be full and comprehensive. The obligation is as above; to provide a true, accurate and fair reference that does not mislead.

3. Take care with personal information and always mark the reference “private and confidential, for the addressee only”.

Liabilities

If you give a misleading reference to a new employer then that employer can claim damages against you if they rely on the reference and suffer loss. Likewise it is possible for an ex-employee to claim damages if they suffer financial loss as a result of a misleading or inaccurate reference.

As a result of these risks many employers these days give what is known as a ‘factual’ or ‘standard company reference’ for all employees, which simply sets out the basic facts such as the employee’s name, dates of employment and job title on leaving. These basic neutral references are bland and can be unhelpful but are also increasingly used within the motor industry and elsewhere. It is often the ‘safe’ option for an employer, worried about the risks.

When do I absolutely have to give a reference?

Rarely, an express or implied term in the employee’s contract can oblige an employer to give a reference. If someone has been assured of a reference by the employer and if that has been relied upon, then that can cause liability if subsequently withdrawn. Occasionally, regulatory requirements oblige an employer to give a reference, but that is not common.

Although there is no general duty to give a reference, remember also that if an ex-employee has brought or is threatening to bring a discrimination claim or whistleblowing claim, then a refusal to give a reference in those circumstances can give rise to a claim in employment law for ‘victimisation’ and that is a claim that can be brought in the Employment Tribunal.

In the above question at the start of this article for example, if the employee had been complaining about health and safety or that he had been subject to discrimination (and that is the real reason why the employer considered him not very good) then a refusal to give a reference in those circumstances could land the employer in a Tribunal claim.

Remember also there are some good practice guides available to help you. See for example the Information Commissioner’s website or the ACAS website.

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 at any stage for advice and assistance as appropriate.

Andrew Macmillan

Solicitor

Motor Industry Legal Services

Motor Industry Legal Services (MILS Solicitors) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.