IGA News

Be Aware - March 2020

Be Aware - March 2020

02 March 2020

Lone Working

“I run a small body repair MOT workshop. I sometimes have to leave my technician working on his own when I am out of the business, is that okay? Is there any law in this area?”

Employers who have employees who are likely to be working on their own need to carry out a risk assessment. The Health and Safety at Work Act 1974 ensures a duty of care on employers to ensure the health, safety and welfare of their employees. The Management of Health and Safety at Work Regulations also require employers to carry out a risk assessment.

In the above situation a bodyshop or MOT testing area is likely to be a relatively hazardous environment. The employer is required to consider the risks posed to a lone worker in such an environment. Where a risk assessment shows it is not possible for the work to be done safely by a lone worker, arrangements for providing help or backup should be put in place. A risk assessment might include that it is not safe for one person to work alone, examples include working in confined space or work involving electrics or other dangers where two people might be required to be present.

Precautions should be planned for foreseeable emergencies e.g. fire, equipment failure, illness and accidents etc.

The following questions should be asked by the employer:

  • Does the workplace present a special risk to the lone worker?
  • Is there a safe way in and a way out for one person? Can any temporary access equipment which is necessary, such as portable ladders or trestles, be safely handled by one person?
  • Can all the plant, substances and goods involved in the work be safely handled by one person? Consider whether the work involves lifting objects too large for one person or whether more than one person is needed to operate essential controls for the safe running of equipment.
  • Is there a risk of violence?
  • Are women especially at risk if they work alone?
  • Are young workers especially at risk if they work alone?
  • Is the person medically fit and suitable to work alone?
  • What happens if the person becomes ill, has an accident or there is an emergency?

Stolen Vehicles

“I took a car in part exchange, now the police have contacted me and told me the car was stolen and have seized the vehicle. What can I do?”

You first need to know more about the allegations, particularly, was the vehicle taken without the permission of the owner or did the owner intend to sell the vehicle but were mistaken or mislead as to who the purchaser was.

Is the vehicle stolen?

Where a vehicle is taken without the permission of the owner then the thief will have no legal title to the vehicle despite having possession of it. With a few exceptions you cannot receive a better title than the person selling you the vehicle. Therefore, you have no title to the vehicle and will lose it. If you have already sold the vehicle you will have to reimburse the buyer any funds paid and you will be liable to compensation for any losses.

Did the previous owner intend to sell the vehicle?

Fraud is something different. Where the owner of a car intends to sell a vehicle and pass legal title but the payment details used are fraudulent then title to the vehicle will pass to the ‘fraudster’ unless and until the true owner takes steps to cancel the contract, e.g. by reporting it to the police etc… If you buy the vehicle during this period for a fair price and without knowledge of any fraud, then you will gain legal title to the vehicle even after the fraud is discovered. You will not have to return the car. You will also pass title to any subsequent owner should you have sold it.

The best option remains to avoid the situation where possible. If the vehicle has recently changed owners you should satisfy yourself why it is now being sold. Sufficient identification details should be kept so that you can satisfy yourself of the identity of the person selling the car, their address and that this corresponds to the banking details and the registered owner’s details.

Disciplinary proceedings

“Can an employer continue with disciplinary proceedings even after the employee has resigned with immediate effect?”

Historically it has always been understood that it was an employer’s choice whether or not to pursue disciplinary proceedings. The remedy available to an employee for disciplinary proceedings that were wrongly or unfairly pursued lay after the event (i.e. dismissal) with claims for unfair and wrongful dismissal and, if appropriate, for discrimination.

However, the Supreme Court in Chhabra v West London Mental Health NHS Trust [2014] IRLR 227) upheld the High Court decision to grant an injunction preventing the NHS Trust from pursuing gross misconduct proceedings and, indeed, preventing the pursuit of any disciplinary proceedings until a freshly-constituted investigation had been conducted. This was on the basis of the High Court’s assessment that Dr Chhabra’s conduct, even if proven, was not sufficiently serious to warrant summary dismissal, given various significant procedural breaches.

Save for a possible Court injunction there is nothing to prevent an employer from pursuing disciplinary proceedings event if an employee has decided to resign with immediate effect. Disciplinary proceedings are entirely under the control of the employer (save that an employee or former employee can decide whether or not to participate in them).

There is no financial difference, from an employer’s perspective, between an employee resigning with immediate effect and them being summarily dismissed for gross misconduct. In neither case would the employee be entitled to notice pay.

An employer would also need to consider that there is no legal basis on which an employer can compel a former employee, who has already resigned with immediate effect, to participate in disciplinary proceedings or to attend a disciplinary hearing. Indeed, it is highly unlikely that a former employee would do so. The avoidance of disciplinary proceedings may well be the reason for the resignation.

Finally, an employer cannot dismiss or terminate the employee who has already resigned with immediate effect.

Why would an employer want to pursue disciplinary proceedings against a former employee who has already resigned with immediate effect? Two possible reasons for this:

  • To potentially provide evidence on which to rely in the event that the former employee brings a claim against the employer (for example, for unfair dismissal or discrimination).
  • In order that the employer can state more definitively that the employee would have been dismissed if they had not resigned.

However, it is hard to envisage the practical benefit of either. The employer can adduce evidence of the employee’s misconduct at the Court/Tribunal hearing in any event. The employer would also need to consider its duty to be fair, truthful and accurate when it comes to providing a reference for the former employee. Any conclusion reached in disciplinary proceedings that were not attended by the employee are unlikely to carry much weight when an employer is defending a negligent misstatement case based on a reference provided about the employee.

Criminal Allegations and Unfair Dismissal

Under the Employment Rights Act 1996 there are several fair reasons to dismiss an employee. The most common are capability, conduct, redundancy and ‘some other substantial reason’ (SOSR) a catch-all category for a substantial reason that does not fit within the other fair reasons. Criminal matters outside of work can sometimes constitute some other substantial reason (SOSR) and render a dismissal on those grounds fair.

In the recent case of Lafferty v Nuffield Health, the Employment Appeal Tribunal (EAT) has confirmed that an employer can fairly dismiss an employee on the basis of concern for its reputation when an employee is charged with (but not yet convicted of) a criminal offence.

The Claimant was a hospital porter with a long, unblemished service record at the Respondent charity. His duties included transporting anaesthetised patients. He was charged with a serious sexual offence unconnected with work, which he denied. He and the police both informed the Respondent of the charge, for which no trial date had been set. The Respondent dismissed the Claimant on the basis that there was a risk to its reputation from continuing to employ the Claimant when he had access to vulnerable patients, should he be convicted.

The EAT made clear that each case will turn on its own facts. It held that employers should not simply take allegations of criminal contact at face value but should make some enquiry of their own. It is also relevant in this case that the Claimant’s job meant that he had the opportunity to commit the kind of act he was charged with, hence there was a clear link between the charges and the job. The employer here was also a charity and had a genuine fear of reputational damage (exacerbated due to recent highly publicised concerns in the charity sector).

If you find yourself in a similar situation with an employee facing criminal charges then, because of the fact-sensitive nature of these matters (as confirmed by the EAT in the Lafferty case above) you should seek advice via the RMIF helpline.

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 a situation above, contact us via the direct member helpline or 0845 305 4230 at any stage for advice and assistance as appropriate.