Be Aware - April 2021
“We are recruiting for a new technician. I have been through the applicants and there are two strong candidates. The most qualified candidate however has said in his application form that he suffered from depression in the past but claimed it doesn’t affect his work at the moment. I don’t want to take the risk if he proves to be unreliable, so I was going to choose the other candidate. I presume that is okay?”
The simple answer is no. The employer in this situation should be aware that discrimination law is very different from unfair dismissal law. The right protection from discrimination applies to job applicants, so the employer can be liable before they have even met the candidate, essentially from when the application arrives through the employer’s door.
The risk in the situation above is that the job applicant could prove that the depression was a “disability” under the Equality Act 2010. To prove this, they have to show that the condition has a substantial long term adverse effect on day-to-day activities. The effect of any medical condition on work is not the essential ingredient in determining the issue.
A further problem for employers is that, as a general rule, whether or not someone is disabled for the purposes of the Equality Act is assessed as if they were not taking medication for the condition. With someone with serious depression it follows that a Tribunal does not ask whether or not, when taking any medication or treatment, there is a substantial adverse effect on day-to-day activities, but rather how they would be coping with their medical condition if they were not taking such medication? The result is that a far greater proportion of the population in the UK can argue they are technically disabled in employment law than might be expected.
If the employer rejects the candidate above, then the candidate can submit a claim to an Employment Tribunal. To defend such a claim the employer essentially has to show that the decision not to offer the job was not influenced by the disability (provided always the employee can prove they are disabled within the meaning of the Act).
Employers when recruiting should make job offers “blind” to medical information, albeit offers should be made subject to the satisfactory completion of a medical questionnaire. If it later transpires on further investigation that a medical condition is particularly serious and reasonable adjustments cannot be made to the terms of the job to accommodate that condition, then the employer can subsequently withdraw the offer and can raise a potential defence in the Tribunal.
In the situation above the claim may be difficult to defend if there is one very clear strong candidate then the job applicant may be able to prove to a Tribunal that the depression was the real reason the employer acted as it did. Of course, in many situations it is more arguable and the fact that someone has a disability should not unduly scare an employer into offering the job if there are more able candidates. Treating all candidates fairly and openly is therefore important, as is laying a good paper trail in recruitment to demonstrate the relative candidate’s strengths and weaknesses, so that the employer can prove that the reason they didn’t offer a job to someone who has a disability has nothing to do with the disability. Although not common, beware that this area of the law is sometimes abused and vexatious litigants can try to bring claims to force employers to pay out, simply by making applications.
During the pandemic, the motor industry has increasingly sold vehicles online and at a distance. Despite this and the fact that the Regulations have been in place since 2013 there are still a number of members with questions regarding how they work and what they are required to do. With society starting to open up again it is more important than even that members understand the Regulations and how they apply.
The current protections for sales at a distance are the Consumer Contracts (Information Cancellation and Miscellaneous Charges) Regulations 2013 (the Regulations). These can be found at:
The Regulations apply to any distance and off-premises contracts (see below) between a ‘Consumer’ and a ‘Trader’.
To be a consumer a person must be ‘an individual’ acting ‘wholly or mainly outside (their) trade, business, craft or profession’. As such any corporate entities such as Limited Companies or Partnerships would never be able to be a consumer.
It should be noted that the Regulations acknowledge that some transactions that are obliquely related to a business may still be covered.
The Regulations deal with more than just distance selling. They divide transactions into 3 categories.
Distance Contract: A contract concluded without the simultaneous physical presence of the trader and the consumer. Distance sales were not common prior to the pandemic but are automatic during any lockdown period.
On-premises Contract: A contract entered into on business premises where customers are able to view the vehicle at a showroom prior to buying it. This is the vast majority of sales pre-lockdown.
Off-premises Contract: An off-premises contract, is a contract which is either, concluded in a place which is not the business premises of the trader, where an offer was made by the consumer in a place which is not the business premises of the trader, or concluded on the business premises of the trader immediately after the consumer was personally and individually addressed in a place which is not the business premises of the trader, such as during an excursion organised by the trader with the aim or effect of promoting and selling goods or services to the consumer. These contracts are rare in the motor industry generally but can be found where it is common to attend trade events and shows.
The Regulations will give the consumer 2 main rights:
- The right to certain information in writing at or before the date of the contract,
- A cooling off period, or a right to change their mind.
The Regulations require the trader to give or make available to the consumer in writing the following information: -
- The main characteristics of the goods or services;
- The identity of the trader (such as the trader’s trading name);
- The geographical address at which the trader is established and, where available, the trader’s telephone number, fax number and e-mail address, to enable the consumer to contact the trader quickly and communicate efficiently;
- Where the trader is acting on behalf of another trader, the geographical address and identity of that other trader;
- The total price of the goods or services inclusive of taxes, or where the nature of the goods or services is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated;
- All additional delivery charges and any other costs or, where those charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable;
- In the case of a contract of indeterminate duration or a contract containing a subscription, the total costs per billing period or (where such contracts are charged at a fixed rate) the total monthly costs;
- The cost of using the means of distance communication for the conclusion of the contract where that cost is calculated other than at the basic rate;
- The arrangements for payment, delivery, performance, and the time by which the trader undertakes to deliver the goods or to perform the services;
- Where applicable, the trader’s complaint handling policy;
- Where a right to cancel exists, the conditions, time limit and procedures for exercising that right;
- Where applicable, that the consumer will have to bear the cost of returning the goods in case of cancellation and, for distance contracts, if the goods, by their nature, cannot normally be returned by post, the cost of returning the goods;
- That, if the consumer exercises the right to cancel, the consumer is to be liable to pay the trader reasonable costs;
- Where under regulations 28, 36 or 37 there is no right to cancel or the right to cancel may be lost, the information that the consumer will not benefit from a right to cancel, or the circumstances under which the consumer loses the right to cancel;
- In the case of a sales contract, a reminder that the trader is under a legal duty to supply goods that are in conformity with the contract;
- Where applicable, the existence and the conditions of after-sale customer assistance, after-sales services and commercial guarantees;
- The existence of relevant codes of conduct, as defined in regulation 5(3)(b) of the Consumer Protection from Unfair Trading Regulations 2008, and how copies of them can be obtained, where applicable;
- The duration of the contract, where applicable, or, if the contract is of indeterminate duration or is to be extended automatically, the conditions for terminating the contract;
- Where applicable, the minimum duration of the consumer’s obligations under the contract;
- Where applicable, the existence and the conditions of deposits or other financial guarantees to be paid or provided by the consumer at the request of the trader;
- Where applicable, the functionality, including applicable technical protection measures, of digital content;
- Where applicable, any relevant compatibility of digital content with hardware and software that the trader is aware of or can reasonably be expected to have been aware of;
- Where applicable, the possibility of having recourse to an out-of-court complaint and redress mechanism, to which the trader is subject, and the methods for having access to it.
Under the Regulations consumers have the right to 14 days from the date of delivery of the goods (or from ordering the services) to change their minds. A trader is entitled to charge a fee for any use of the goods during this period but only if the correct information is provided at the time of delivery.
If Consumers are not provided the correct information then:
- The contract is not binding.
- Where consumers are not told of the rights of cooling off/cancellation then they can cancel the contract up to 12 months and 14 days later.
- Where consumers are not told in writing that there will be a deduction for the use, then the Consumers are entitled to the full price paid with no deductions.
It is criminal offence not to provide the correct information or tell consumers of the cooling off rights. It is vital that members have the right terms and conditions. The RMI can provide example terms and conditions on request.
Under the Regulations, provided the consumer has been notified in writing that a deduction will be made in the event of cancellation, then you can make a deduction for
… the value of the goods is diminished … as a result of handling of the goods by the consumer beyond what is necessary to establish the nature, characteristics and functioning of the goods,
The Regulations are not specific to the motor industry, but you will be able to make a deduction for:
- Any mileage covered beyond that necessary to establish the nature and characteristics of the goods.
- Any damage to the vehicle.
- Any modifications not included in the original contract.
The important part here is that any deduction can only be made for any reduction in value beyond what is necessary to establish the nature, characteristics and functioning of the goods. You will not be able to make a deduction for anything that is a basic necessity to allow the customer to assess the goods, this is likely to include:
• the fact that the vehicle is now a ‘used’ vehicle.
• any additional registered keeper(s).
• any pure depreciation.
There is no fixed calculation. The only guidance in the legislation is the quote above.
In the motor industry there are 2 general ways of calculation a pence per mile deduction and a reduction in value
Pence Per Mile Deduction
This allows for a quick calculation and can be very useful for new vehicles where the majority of any reduction in value cannot be deducted (i.e. vehicle registration, another owner, depreciation etc). That said, there is no fixed amount. Courts have used £0.10, £0.20, £0.45, £0.50. Where you are considering a pence per mile calculation, we would advise this is included in the contract so that the amount used in known in advance. Be warned, this amount must be justifiable as if is in punitive then no deduction will be allowed.
Reduction in Value Calculation
This involves using a valuation guide to calculate the value of the vehicle at the mileage at the time of sale, and then again at the mileage at the time of return and subtracting one from the other, the difference is then the amount deducted from the purchase price for use.
This allows for a more accurate reduction and can be very useful for used vehicles where the reduction in value due to another owner or depreciation has less of an impact. It can also take into consideration any general changes in condition (i.e. valuation at sale good valuation at return in poor condition etc.)
Whichever method is used, there will also be deductions for any damage or the condition of the vehicle on return that can be added to this.
None of these methods will produce an appropriate value on all occasions and should be used as the basis of a negotiation as appropriate.
If I take a deposit over the phone is that a distance contract?
It depends. To be a distance contract the entire contract has to be concluded at a distance. Normally customers will attend premises at some stage to view the vehicle and negotiate prior to sale. During the lockdown period this has not been able to happen and so ALL vehicle sales commenced and concluded during a period of lockdown will be distance sales.
If a vehicle is collected from my premises, is this still a distance sale?
It depends. The question becomes at what stage the vehicle is collected. If the contract is finalised and the customer has no option but to dive away, then this is still a distance contract. If the customer can still walk away and get their money back, then it is not.
Do the regulations apply in the same way to new and used vehicles?
Yes. The only difference is that the losses incurred in the event of a cancellation during the cooling off period are likely to be greater for new vehicles than for used.
If I sell the vehicle on eBay do the Regulations still apply?
Yes. The Regulations were designed to give protection in an eBay type auction.
If they apply to eBay, do the Regulations apply to all auctions?
No. If the customer has the opportunity to attend the auction in person then the Regulations do not apply. The customer does not have to attend and may have bid online but if the auction was held in Public then the Regulations are excluded.
I am a repairing garage but sometimes I buy and sell vehicles that have failed their MOT. As I am not a sales garage do the Regulations still apply?
It depends, but it is likely. The Regulations apply where you are acting for purposes relating to your trade, business, craft or profession. It is unclear where a mechanic becomes a salesman, and it would be up to a judge on a case. That said it is for you to prove that you do not trade in vehicles. Unless it truly is a personal vehicle, and this is made fully clear at all times then it is likely a Court will apply the Regulations if the vehicle is sold to a consumer.
Distance and off-premises sales come with obligations that make them more complex. Most businesses are concerned about the cooling off/cancellation rights, and with motor vehicles the costs of a cancellation can be high. However properly managed the risk will last for only 14 days from delivery and deduction for any use can be made. The costs of selling vehicles at a distance are higher as a proportion of the costs will not be recovered in the event of a cancellation. All else being equal, vehicles sold at a distance would have to be priced higher as a result.
This advice is general in nature and will need to be tailored to any one particular situation. This is not a definitive guide to the Regulations and how they apply to your business. Neither does this deal with all the changes. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.
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, call 01788 225 908 any stage for advice and assistance as appropriate.