Be Aware – July 2022
This month, the IGA Legal Team provide advice on employees who refuse to attend work over concerns about catching Covid-19, foreign employees who have been called to national service, and vehicles abandoned on business premises.
Was it automatically unfair to dismiss an employee who refused to attend work over concerns about the risk of Covid-19 to his vulnerable children?
With increasing inflation ahead of us business could be forgiven for wanting to put Covid-19 behind them. However, businesses face a significant backlog of cases regarding Covid-19, and for those businesses effected the recent EAT case of and the recent case of Rodgers v Leeds Laser Cutting Ltd. should give members hope that the court is willing to take a pragmatic response.
At the start of the pandemic and during the first national lockdown, Leeds Laser Cutting (LLC) carried out a risk assessment and put in place various safety measures to enable it to continue operating. These included providing masks and putting in place social distancing measures, as well as staggering start and finish times in order to reduce contact between employees. However, Mr Rodgers told his manager that he’d be staying away from work ‘until the lockdown has eased’ because of his concerns about infecting his vulnerable children. There was no further contact between the parties and Mr Rodgers was dismissed a month later.
As he didn’t have the necessary two years’ service to bring an ordinary unfair dismissal claim, he brought a claim of automatic unfair dismissal under ERA, s 100(1)(d) and (e), which state
“(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or
(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.”
Whilst the Tribunal accepted Mr Rodgers had significant concerns regarding Covid-19 generally, it was found that this was not sufficient in itself to succeed in a claim.
The Court found that whilst Covid-19 had the potential to rise to a serious and imminent danger for the purposes of the legislation, the intention of the legislation as not to provide employees the right to refuse to attend work simply by virtue of the pandemic. Any risk of serious and imminent danger must be directly attributable to the workplace. As Mr Rodgers had not referred to any dangers particular to his workplace was refusing to return to work, and in fact could not establish such a danger. He had failed to take any steps to avert the alleged danger or raised concerns with his manager prior to leaving the workplace then his claim was dismissed.
On appeal the case the EAT agreed with the ET, suggesting that employees leaving or refusing to return to the workplace due to Covid-19 fell within 100 (d) only.
Whilst, in principle, an employee could reasonably believe that there were serious and imminent circumstances of danger arising outside the workplace that prevented him from returning to the workplace. Leeds Laser Cutting Ltd. had taken considerable steps to avert the danger and employees could have been expected to take reasonable steps to avoid such danger, such as wearing a mask, observing social distancing, and sanitising his hands. The appeal was dismissed.
In Conclusion
This appears to be the first appeal case of its type and it is reassuring for employers who did take steps to reduce the risk of infection in the workplace. that they will be well placed to defend claims presented under s. 100 based on an employee’s belief that COVID-19 presented a serious and imminent danger in the workplace. However there is a note of caution. In this case it was found that Mr Rodgers had breached self-isolation rules on at least 2 occasions subsequent to his dismissal. The court found that Mr Rodgers did not in fact reasonably believe that there were circumstances of danger which were serious and imminent, either at work or at large.
Military reservists
“We have a foreign national employee who has been mobilised for military action due to national service by the country of which they are a citizen. As an employer do we have a legal obligation to protect their service?”
Individuals who are members of the reserve forces have, subject to certain conditions, the right to be reinstated by their former employer following a period of whole-time military service (e.g. after mobilisation) under Section 217 Employment Rights Act 1996. These employees also have protection from dismissal if the reason for dismissal is, or is connected with, the employee’s membership of a reserve force. There is no minimum qualifying period of employment to bring a claim for unfair dismissal in these circumstances.
Section 217 ERA 1996 applies to a person who is entitled to apply to their former employer under the Reserve Forces (Safeguard of Employment) Act 1985 for reinstatement. That entitlement applies to a person who is in permanent service under specific provisions of the Reserve Forces Act 1996.
Those provisions of the Reserve Forces Act 1996 apply in respect of service in the ‘reserve forces’, which means:
- the Royal Fleet Reserve, the Royal Naval Reserve and the Royal Marines Reserve (the reserve naval and marine forces)
- the Regular Reserve and the Army Reserve (the reserve land forces), and
- the Air Force Reserve and the Royal Auxiliary Air Force (the reserve air forces)
Section 217 ERA 1996 therefore does not apply in respect of mobilisation to serve in the armed forces of another country such that the employee would not have the right to be reinstated in this situation. Notwithstanding this, it is open to an employer if it wishes to agree that the employee is allowed to take a sabbatical/career break for an agreed period of time.
If an employer takes this approach, then it is important that it sets out in writing the terms of the sabbatical/career break e.g. whether employee has continuity of service during the sabbatical/career break and therefore accrues employment rights such as holiday and potentially unfair dismissal protection.
An employer may wish to state that there is no guarantee at the end of the career break, the company will be able to offer employment in a role which is the same as, or similar to, the employee’s old role, or indeed that it will be able to offer employment at all, to manage expectations.
The Information Commissioner; Registration and the Data Protection Fee
“I have recently received a number of letters from the ‘Information Commissioner/ICO’ telling me I need to pay a ’Data Protection Fee’. I have never heard of them before. Is this a scam?”
We cannot say whether the letter you have received is or is not real. If you are at all concerned, we would strongly advise caution. That said, the Information Commissioner or ICO is a legitimate organisation, and it is likely that a fee is due.
Who are the ICO?
The ICO is the UK’s independent body responsible for upholding information rights and data protection. Their main responsibility is the Data Protection Act 2018, but they are also responsible for the Freedom of Information Act 2000, the Network and Information Systems Regulations 2018, the Electronic Identification and Trust Services Regulations, and Investigatory Powers Act 2016.
They have become more well known in the last few years as a result of the GDPR and the overhaul of data protection legislation in the UK.
Do I have to pay a fee, and if so, why?
The ICO is funded, at least in part, by a levy placed on data processors. Under the Data Protection Act 2018, organisations processing personal data must pay a data protection fee, unless they are exempt. As personal data includes people’s names, addresses or telephone numbers, where you hold customer data for billing purposes etc… it is likely that you will be required to pay a fee.
The ICO have provided a handy tool on their website in order to help businesses asses whether they are required to register with the ICO as a data processor and if so whether they are liable to pay a fee. This can be found at
https://ico.org.uk/for-organisations/data-protection-fee/self-assessment/
Conclusion
In conclusion it is highly likely that this is a genuine letter and that you are required to be both registered and that you are liable for a fee. In fact it’s likely that you have bene for some time. Whether you have received a letter or not, we would advise all members to go to the ICO website address above and take 45 minutes to go through the assessment. If you are required to register and pay a fee you will then be referred to the appropriate next steps.
Abandoned Vehicles
“ I have had a vehicle on site for some time. I have done some diagnostic work and quoted for a repair. The owner was going to get back to me but they haven’t and now I cannot contact them What should I do?”
There are many reasons a vehicle may be abandoned on your premises. When this occurs that are generally speaking, 3 options :-
- Taking the owner to court
- Selling the vehicle to settle the debt
- Reporting the vehicle to the local council as abandoned
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. The first step is to write to the owner of the vehicle setting out your case asking for payment or asking him to set out his position in writing as to why he is refusing to pay or collect his vehicle. If there is no agreement after this, and there is a significant amount due, 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 to settle the debt
First off, 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, and 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.
Reporting the vehicle to the local council as abandoned
All Councils have the power to seize and destroy abandoned vehicles. Different Councils have different approaches and we are starting to see more reluctance from councils. Some will only remove from the public highway and some will only remove from private land for a fee. As such, if this is an option you want to pursue you should contact your local Council and discuss their requirements before going any further. When reported, the Council will be able to remove and, where there is no response from the owner, destroy the vehicle. This option is therefore generally best if the vehicle has been on your premises for some time or if you are not owed any money or you are willing to forego any debt
Next steps
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.
Where you do not have the customer’s address, then you should contact the DVLA. You can establish a reasonable cause for requesting this information, but if you have a contract that requires enforcement, or a vehicle abandoned on your premises, this should be sufficient. You can contact the DVLA for further information. However, at the time of writing, you will need to use the DVLA’s form V888/2A or B.
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.
