IGA News

Be Aware – December 2021

Be Aware – December 2021

29 November 2021

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. 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.

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. Also, sometimes 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, please 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 be 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.

Although it is different from the scenario in this article, employers also need to be aware of the Rehabilitation of Offenders Act, under which in some circumstances it can be automatically unfair to dismiss an employee if they have a ‘spent’ conviction. Under the Act convictions are ‘spent’ after certain periods of time after the offence (and these periods differ depending on the offence).

Indirect Associative Discrimination

Employers may not have heard of a recent case in the Employment Tribunal ‘Follows vs Nationwide Building Society’ in which an Employment Tribunal unusually upheld a claim of indirect associative discrimination on the grounds of disability. It is important that this case is on the radar for employers albeit, as we cover at the end of this article, the decision may yet be over-ruled.

Facts

Mrs Follows was made redundant from Nationwide Building Society. She had a ‘homeworker’s contract’, so her work was mainly at home, although she also attended the office. She needed this because she cared for her disabled mother. Nationwide began a restructuring and redundancy process which required for all such employees to work from the office and following this process Mrs Follows was made redundant. Mrs Follows brought claims for direct and indirect associative discrimination on the grounds of disability.

‘Associative Discrimination’ is when a person is subjected to less favourable treatment because someone they know or are associated with possess a protected characteristic under the Equality Act, 2010. To give an example, an employee being passed over for a pay rise because they have a friend who is Asian would be associative discrimination on the grounds of race.

This avenue has always been difficult to pursue for employees because under the Equality Act, the person who is subjected to the less-favourable treatment must possess the protective characteristic. It was generally thought therefore that associative discrimination cases were limited to cases of direct discrimination only. The Employment Tribunal however in this case, reasoned that Section 19 of the Equality Act (which deals with indirect discrimination) should be read in a way that is consistent with EU Law, which would mean that the protection should be extended to employees who are associated with someone who possesses a protected characteristic, even if they themselves did not have that protected characteristic.

Implications

This is a first instance decision of an Employment Tribunal, so it is not binding, but is a reminder that presently Tribunals are still required to interpret legislation in line with EU Law and accordingly such claims can succeed. As employers return employees from furlough into different working patterns or back into the office, employers should be aware of this case.

Employers should keep an eye on future developments, to see whether the Judge’s reasoning in Follows is followed (no pun intended) or whether a subsequent decision of a higher court leaves it as a legal footnote.

Is when an employer is informed about any disability important?

Yes, according to the EAT in the case of Stott v Ralli Ltd.

The Claimant was dismissed during her probationary period for poor performance. After dismissal she raised a grievance, claiming that she had been dismissed because of disability and that her employer was aware of her mental health issues, the grievance was rejected, as was a grievance appeal. The employee then brought a claim alleging that her dismissal was discriminatory (she did not have the 2 years qualifying service to claim unfair dismissal) but did not challenge the grievance process. The tribunal held that the Respondent did not know and could not reasonably have been expected to have known about disability when dismissing.

On appeal The EAT held that, on the facts, the case was about the Claimant’s dismissal (and not the grievance). As she had not raised any issues regarding what went on afterwards in the case, the tribunal was entitled to consider if the dismissal only was discriminatory. The tribunal found that the employer is required to have knowledge (i.e., it either knew or ought to have known that the employee had a disability) of a disability prior to dismissal such that the claim should fail on these facts.

This is another victory for common sense and reinforces the position that you cannot discriminate against someone for something you are not aware of. However, the employer was lucky that the Claimant didn’t include any allegations about the grievance process etc as this may have had a different outcome, as the employer was aware of the disability throughout the grievance process. The EAT distinguished between issues to be considered by a tribunal in an unfair dismissal claim compared to a discrimination claim. For the purposes of an unfair dismissal claim, dismissal is regarded as a process encompassing the appeal stage and outcome. By contrast, where the claim is one of discrimination a tribunal must consider separately the allegations of a discriminatory dismissal and a discriminatory appeal (if raised).

General Note

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 01788 225 908 at any stage for advice and assistance as appropriate.