IGA News

Be Aware - May 2021

Be Aware - May 2021

30 April 2021

Motoring offences, PCNs and Parking fines etc….

As a motoring business if you lend out courtesy cars there will be times when those cars incur fines parking charges, Penalty Charge Notices (PCN’s) or even criminal motoring offences such as speeding. It is important that members are familiar with issues raised by each of the above, and the different duties that are required when responding to each one. The information below is intended as a guide to the issues surrounding each area. It does not replace legal advice. As such we would always advise ember to seek independent advice at the earliest opportunity. As members you have access to the RMI’s own telephone legal advice line included in your membership fees.

Criminal Motoring offences

This is the most serious possible situation. There are a number of possible offences that can be committed in your vehicle. The most likely offences that a garage as the registered keeper will encounter are camera enforced offences such as speeding offences or failing to stop at a red-light. In these instances, as the registered keeper you should receive a ‘Notice of Intended Prosecution’ or NIP, within 14 days of the offence. In this case you have a duty to identify the driver of the vehicle and return the NIP within 28 days even if you do not know who was driving. Failure to return the NIP, or a failure to identify the driver are separate offences which can lead to a fixed penalty or a current maximum sentence of £1000 and 6 points.

In the event of receiving notice of a criminal offence, do not ignore. Contact the RMI legal advice line immediately on 01788 225 908.

Council Enforced Offences

The Road Traffic Act 1991 (c. 40) provided for the decriminalization of parking-related contraventions. This was updated by the Traffic Management Act 2004 and subsequent regulations. In short, councils have taken the place of the police for a number of minor motoring offences relating to traffic management.

Garages should be very vigilant as a number of private landlords produce notices deliberately similar to those produced by local councils in order to obtain payment. Any council enforced PCN should have clear details on how to appeal both to the council concerned as well as to the independent tribunals PATAS and NPAS. If this is not clearly stated, then you have likely received a demand for payment from a private landlord.

When the vehicle is a council enforced offence, in the majority of cases at the time of any ‘offence’ a Penalty Charge Notice or PCN will be attached to the vehicle (there are some cases enforceable by camera). If payment is not made within 28 days the council concerned will have between 28 days and 6 months to serve a Notice to Owner (NTO). This is to allow the owner to make representations regarding the PCN to the council concerned. This is important as it is the owner who is liable to pay any PCN not the driver. The owner can make any representations to the council regarding the PCN as to whether it was validly issued. However, as you were not the driver at the time your evidence will be severely limited. The owner can only avoid liability if

  1. The PCN was incurred by a person who was in control of the vehicle without the consent of the owner; or
  2. The vehicle is hired under a vehicle hire agreement and the agreement contains a statement signed by the hirer acknowledging their liability for an PCN issued during their hire period

These are very limited situations and depend on the agreements in place when a courtesy car is provided. It would therefore be beneficial for garage to review the agreements in place when providing a courtesy car to ensure that the driver has accepted liability for PCN’s. The RMI legal advice line can assist on 0845 8399205 with further advice.

Do not ignore a PCN. When a PCN is received, it should be assumed that you will be liable unless proven otherwise. If you should be required to settle any PCN it is likely that this amount can be recovered from the driver of the vehicle.

In the event of receiving a PCN:

  1. Make sure that this is a council enforced PCN, many private car parks use formats deliberately similar in order to obtain payment
  2. Review the contents of any hire/courtesy car agreement to see if the driver has accepted liability for the PCN
  3. Contact the driver and investigate the facts of the case
  4. Contact the RMI legal advice line for legal advice as required on 0845 8399205
  5. Either admit the PCN or challenge informally with the council and then through either PATAS or NPAS as appropriate

Private car parks

These are likely to be the most common type of fines received. Generally parking on private land is governed by contract law principles. Provided there are clear terms and conditions displayed in the car park upon entry a driver agrees to be bound by these by parking and leaving their car there. You should note from the outset that such tickets are very different from those issued by local authorities. Parking tickets on private land cannot lead in any way to any criminal proceedings and they are not a ‘ticket’ as such but a notice saying that they intend to take you to the civil court for trespass, in effect, breach of contract.

A parking operator has no legal right to recover a parking fine without first taking court action against you for breach of contract. What is also important here is that it is the driver not the owner of the vehicle that agrees to park on the property and so any legal liability to argue the case or settle any amount lies with the driver. However, if you do not provide the drivers details when requested where the driver cannot be identified that the registered keeper is liable for any such fines.

In the event of receiving notice of a fine from a private car park, contact the private landowner informing them that whilst you are the registered keeper you were not the driver at the time, and provide the driver’s details immediately.

In Conclusion

Where garages lend vehicles that they own they will have little control over the use by their customer. As such there will always be times where the garage, as the registered keeper, is left to pick up the pieces from any number of motoring matters. The biggest problems for garages occur not from the events themselves, but from ignoring them once notified. This will never solve the problem and as can be seen above can increase a garages liability. The above is a general guide to the main points in order to familiarise yourselves with the most likely issues that you will come across.

Dismissing an Employee Due to Age

“My business has changed due to coronavirus and I now don’t have enough work going forward. I have an aging technician (Jeff) who isn’t as quick and has started to make a few mistakes. I wondered whether I should just suggest it might be time for him to retire? I wouldn’t mind offering him a small sum of money to go so I can get someone younger and quicker on the job. He has been a good employee, but I think enough is enough?”

Prior to the Age Discrimination Legislation being introduced in 2006, the above scenario provided Jeff with over 65, he simply couldn’t claim unfair dismissal. The law these days is very different, and it would be age discrimination to dismiss him simply because he is getting too old for the job, or to imply or accuse him of the same. Employers need to be particularly careful about making assumptions based on peoples age even if factually it is correct that people as they go into their 70s and 80s may slow down and be less capable (in some cases, not all) making decisions on that basis is likely to land the employer in the tribunal.

Whilst there is no national retirement age anymore, employers can set a default retirement age if the same can be objectively justified. This is a very high test in law and very risky so we would advise that most employers steer clear of this.

In the above situation, Jeff has to be treated like any other employee with capability problems. If he is not performing, then clearly that can be a matter for disciplinary/capability procedures which is likely to involve investigation and medical evidence. If it transpires after investigation and a reasonable period of procedure including potentially warnings and any adjustments that Jeff really isn’t capable of performing the job anymore, then the employer, provided he’s laid a solid paper trail to that effect, may be able to fairly dismiss Jeff or to select him for redundancy on those grounds alone.

In the motor industry of course, there are certain jobs which require a high degree of technical skill and care and often driving abilities and therefore an employer faced with the situation of employee making increasing errors and encountering capability problems it may be wise to monitor the situation more closely and if there are doubts as to health/eyesight etc., then the appropriate medical evidence should be sought to justify potential dismissal if failing health is resulting in the capability to perform the role.

Supreme Court: ‘Sleep-in’ workers not entitled to the national minimum wage for the whole period of their shift

In the much-awaited judgment of Royal Mencap Society v Tomlinson-Blake and another case, the Supreme Court has held that sleep-in workers are not entitled to receive the NMW in respect of hours spent sleeping, even though the worker may be required to sleep at or near the workplace. Mencap has said that the decision has saved employers in the care industry in the region of £400 million in potential backdated liabilities.

Background

The Claimant was a care worker who provided care to vulnerable adults at their home. She was permitted to sleep when she worked during the night but was required to remain at the workplace. She had no duties to perform except to attend to emergencies, which arose infrequently, and to “keep a listening ear out” when sleeping. She was paid an allowance for each night shift, but which amounted to less than the national minimum wage.

The Issues

The Claimant brought proceedings for arrears of wages arguing that she was entitled to be paid the NMW for each hour of her shift, since she was ‘working’ while she was at her work. Her claim succeeded in the Employment Tribunal and in the Employment Appeal Tribunal where it was held that her circumstances did not fall within the exception in section 32 of the National Minimum Wage Regulations, which states that a worker is only to be paid for hours in which they are ‘awake for the purposes of working’– since, in the Claimant’s case, it was interpreted that she was actually working throughout her shift notwithstanding the fact that she may have been entitled to sleep.

The Supreme Court agreed with the Court of Appeal in dismissing the Claimant’s argument finding that while she may have been available for work, she was not ‘working’ for the purposes of the NMW legislation – despite the fact that she may have been constantly on call and had to have a “listening ear” while asleep.

In interpreting the meaning of ‘work,’ Lady Arden stated that not all activity which restricts a worker’s ability to do as he pleases amounts to work for the purposes of the NMW:

“It is clearly not the position that, simply because at a particular time an employee is subject to the employer’s instructions, he is necessarily entitled to a wage. There are many situations when a worker has to act for the benefit of his employer which do not count for time work purposes, for example when he travels between home and work”.

In over-ruling a number of previous cases which held that a worker was entitled to the NMW even while asleep on account of being, for example, still subject to requirements of the employer, the Supreme Court dismissed the appeal and concluded that the worker must be “awake for the purposes of working”.

Comment

This decision will be welcomed by employers in the care and charitable industry given the clarity that it provides with regards to application the NMW legislation. It also comes at a time, as Mencap have said, when the sector is “already underfunded and stretched to breaking point”.

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.