Health and safety – the HSE
The Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999, provide the legal framework for Health and Safety in the workplace
The legislation is designed to ensure both the safety of the workforce and the public; it places the duty on employers, particularly directors, to take responsibility for the health and safety of their employees but only “as far as is practicable.”
Employees have to ensure their own health and safety and must not interfere in the health and safety of others or operate equipment in an unsafe manner. They have an obligation to cooperate with their employers.
All businesses should have an accident book, where injuries are recorded and in the case of serious injury, they are duty bound to report the incident(s) to the HSE.
Businesses have to conduct a health and safety risk assessment and prepare a policy document relative to the risks identified within the assessment. The policy document should set out the business’s general approach to health and safety and explains the purpose/intent of the policy; in particular, it should directly relate to the risk assessment.
Sadly, not all businesses, even main dealerships, have health and safety policies, let alone a policy document. Take for example, an adequate risk assessment for driver training – a blanket documentary tick box, yes or no assessment will not suffice; the risk assessment should take into account the areas where the driver will visit, his experience, the vehicle size and complexities, the vehicle loads and his/her knowledge of road safety and the highway code. In reality, driver training can occur in the classroom and does not need to be road based.
The proliferation of the Covid-19 virus has introduced new consideration to health and safety policy; businesses should now conduct a root and branch review, particularly as serious failings can attract substantial fines, based on a business’s turnover .
Directors or CEO’s who operate businesses without a substantial health and safety policy remain the first in line for prosecution. HSE prosecution policy is to pursue the higher ranking directors, even CEO’s, if the incident, subject of the prosecution is particularly serious.
With certain exceptions, HSE legislation is not set in stone and enforcement is based on a “common sense” approach to events. However, if an accident or serious event occurs, it is essential the scene is preserved and an HSE expert is engaged to coordinate contact with the HSE and apply the appropriate response to any investigation, particularly if the police have liaised with the HSE, (It is common for enforcement agencies, including the police, to combine their resources and become involved in joint operations).
Occasionally, HSE will conduct routine inspections
The Health and Safety Executive provides management risk and risk assessment guidance for businesses large and small, which can be found at https://www.hse.gov.uk/simple-health-safety/risk/index.htm
Contact AAL to see how we may be able to assist.
Bribery Act 2010
The Bribery Act 2010 was designed to create a level field in which businesses operate; there are four main criminal offences under the Act
The first three offences relate to individuals, the fourth a new strict liability offence for companies and partnerships for failing to prevent bribery.
Bribery can be viewed an invitation or inducement to act improperly for financial or like reward but it does not have to be demonstrated by an actual invitation and can be construed by behaviour.
• The first two offences relate to the bribery of another person – an offer or promise to provide financial or other advantage or alternatively, requesting, agreeing or receiving financial or other advantage
• The bribery of a foreign public official
Section 7 of the Act details the offence of a failure by a commercial organisation to prevent bribery being paid, on its behalf, to obtain or retain business or a business advantage. If the offence is committed by an employee, allegedly on behalf of a business, the business will have a statutory defence if it has adequate procedures in place to prevent bribery.
Likewise, a conspiracy count occurs if a business or an employee of a business accepts a bribe to obtain or retain business or obtain a business advantage. Conspiracy is an agreement to act unlawfully or an agreement to complete a lawful act unlawfully.
“Adequate procedures” is not defined within the legislation but “adequate” could be construed to be in line with the size of the business or the risk the business faces in relation to potential cases of bribery.
As far as relates to the motor trade, a simplistic example would be a manufacturer’s employee paying a sales director money or providing payment in kind to agree to a certain number of pre-registrations.
Another simplistic example would be a used car salesman, within a business, receiving payment from a trader to encourage the trader to purchase future vehicles from the dealership (and of course, at the same time, line his pocket).
An example of behaviour resulting in potential bribery would be a manufacturers’ warranty auditor presenting his car to a dealership prior to an audit and having it serviced and parts provided both free of charge, in the expectation by the dealership, the charge-back fees will be reduced. If the full offence could not be substantiated, most certainly, there would be an invitation to consider attempted bribery on behalf of the dealership.
Anti-bribery policy and training is essential in all businesses, where there is the potential for bribery but the level of training has to be commensurate with the potential risk. At any level, it will be quite insufficient to address the problem by the simple expedient of a memorandum to staff; to take advantage of the statutory defence, a business has to demonstrate a policy to prevent bribery. In itself, a policy document will be insufficient, unless staff have had some rudimentary training and understand the concept of bribery and the purpose of the legislation.
On-line, modular annual assessments and/or a policy document, devoid of clarification and explanation, cannot be deemed to be an effective anti-bribery policy and would offer very little in defence of a serious allegation. However, if a prima facie offence of bribery exists and comprehensive anti-bribery training had occurred, it would be enough to put forward a defence, consistent with “adequate training,” in accordance with the terms of the legislation.
AAL provide anti-bribery training , so staff can understand the concept of bribery and understand the difference between accepting a bribe or accepting social invitations or minor gifts, which oil the machinery of business dealings.
If you think AAL can be of assistance contact us now.
Trading Standards
The motor industry is littered with Trading Standards prosecutions, some justified and some, which occur because trading standards have warned dealerships in the past and its advice has been ignored.
Generally speaking, Trading Standards are the, “good guys” of statutory enforcement and would prefer to proceed by conciliation and usually with stay a prosecution if remedial action is taken However, its investigators occasionally stray beyond the norms and will pursue an investigation without cautioning the dealership representative anything they say may be used in potential proceedings. Likewise, they will request documentation but have no entitlement to it without evidence they have a genuine suspicion offences has been committed – they are not entitled to engage in a fishing expedition and if a dealership refuses to co-operate, they will have to resort to the Courts to obtain an order for production of the documentation.
If a dealership receives a Trading Standards’ visit, the policy should be one of “resistive cooperation,” in that there should be no immediate cooperation but a polite offer of cooperation, if they would put the allegations in writing and return at a later date, after the dealership has had the opportunity to obtain the appropriate advice.
Contact AAL for advice
Freedom of Information Act 2000
The Freedom of Information Act 2000 is often confused with the Data Protection Act 2018, which deals with the manner data is processed in relation to individuals.
The Freedom of Information Act only applies to tiers of Government; the Government itself, local authorities, the NHS, the Police and the like are subjected to the legislation not private individuals or organisations. With notable exceptions, an application (a FOI) under the Act, is designed to allow members of the public to gain information from public bodies. It is a useful research tool for organisation investigating business potential and most certainly its application is under-utilised.
As you would expect, all public authorities have in-house “gurus,” whose sole purpose appears to be to thwart disclosure. Applications for information are far from straightforward and there are many exemptions within the Act, which are adopted by public authorities to prevent disclosure. On the basis the general public are none the wiser, the exemptions are often improperly applied.
AAL have an FOI strategy, based on years of experience and now adopt a “funnel technique,” to disguise the ulterior motive of the research.
If you are contemplating making an FOI application, you should contact AAL before submitting your request – it may save you an inordinate amount of time and aggravation.
Whistle Blowing in the workplace, Whistleblowing policy and the Public Interest Disclosure Act 1998
Whistle Blowing by members of staff and the general public can have a devastating impact on the credibility of a businesses, no matter how large or small but it can also provide commercial advantages. Staff should be encouraged to notify management of illicit acts or actions, which if not identified, would have the potential to cause financial harm, employment difficulties, litigation or bring the business into disrepute.
In relation to employment law, if a member of staff feels he/she has suffered detriment as a result of whistleblowing and the whistleblowing was in the public interest, then he/she has recourse to an Employment Tribunal, where the circumstances are aired in public. Irrespective of the reasons, washing the linen in public, is not to be advised.
Staff are reluctant to identify wrong doing in the work place, simply because they fear retribution, even if an organisation has a whistleblowing policy or hotline; no matter the promise of anonymity staff will always have an inherent fear of being identified.
AAL believe whistleblowing should be encouraged and ALL reported events should be independently investigated by a third party and then a data breach has occurred and a criminal offence committed
If you do not have a whistleblowing policy in place, contact AAL for advice on its presentation. If you are serious about encouraging whistleblowing as a positive aspect to your business, speak to AAL about introducing a hotline monitored by an independent organisation.
Environmental Health
Environmental Health have overall responsibility to ensure food hygiene and to police areas relating to disability rights and will often make unannounced visits. AAL has represented dealerships, who have crossed swords with over officious Environmental Health officers.
Like Trading Standards, Environmental Health officials have limited statutory powers of entry but usually rely on goodwill and applied advice. They will not prosecute unless they have evidence of serious breaches but nevertheless are sometimes over pedantic
In recent years AAL has represented dealerships, when it was alleged entry was refused for a routine food standards inspection and on another occasion, when a safety barrier on a disabled toilet broke, causing injury and distress.
If you encounter problems with Environmental Health officers it would prove a propitious exercise to contact AAL and seek advice.
The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013
The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2023, protect consumers, who shop by phone, mail order, or the Internet or digital TV to make the purchase. The protection offered by these regulations relate to the right of the consumer to receive clear information about the goods and services, to be provided with full details of the identity of the trader, be aware of all costs, including taxes and charges, be provided with information relating to delivery charges/details of delivery before he/she purchased the product. Confirmation must be in writing.
The Regulations are particularly significant during the Covid Pandemic, when the customer may be purchasing a vehicle, online from a vehicle dealership, without attending the sales department in person. The Regulations allow for a cooling off period of 14 calendar days, during which the customer can withdraw from the contract. At the time of agreeing the purchase, the customer must be informed of the 14 day right to cancel.
If the customer is not informed of the right to cancel, they will have up to 12 months, after delivery of the vehicle, to cancel the order. Moreover, the customer is not required to provide a reason for cancelling. Clearly, “not in person purchases” have a potential to backfire at a later date. Dealerships, should be aware of the anomalies surrounding the Regulations and should seek advice before entering into a contract.
For further information contact AAL
Access to the Media
Positive stories in the media about a retailer provide free advertising but it is essential from the outset, the media event is properly managed; if properly managed, a news story can increase exposure of the dealership or garage but if left to its own devices or to the dealership to handle, the benefits of media coverage can dissipate, shortly after it is first published/broadcast.
Likewise, an adverse news story or social media post can have a devastating impact on a business. Any approach by a journalist or broadcast researcher should be rebuffed and in the first instance, no comment made.
AAL have approached a recognised press agency to assist dealerships and traders to deal with any media enquiries.
If you have a media enquiry contact AAL who will offer you immediate advice.
Negligence, Fraud, Theft and Criminal Investigations
Unless systems, processes and procedures are introduced to prevent the practice, negligence, theft and fraudulent activity can occur at all dealerships and motor vehicle related businesses, particularly in relation to parts.
During the course of audits, AAL have identified thousands of pounds worth of parts, which had not been returned to the manufacturer. The outstanding amounts were being disguised as warranty returns, when in fact they were the result of gross negligence by the parts department.
On one occasion AAL, when auditing a technician/nominated tester’s activities, identified the theft of £90,000 worth of parts. The technicians had been allowed to work late to complete outstanding urgent work. Staff were left unsupervised and found a method to gain access to the parts department. When they ceased work, they left the roller shutters unsecured, only to return later to complete the theft.
On another occasion, a forecourt attendant made regular submissions of falsified lottery wins to the accounts department, who failed to audit and reconcile the claims. In total, a £43,000 loss was calculated, the member of staff was dismissed and a private prosecution instigated. By the simple expedient of looking at shift patterns and correlating that to the lottery claims, AAL, produced evidence for the dealership to recover its losses with the option to proceed in the County Court, where the quantum of proof is ,“on the balance of probabilities” rather than “beyond reasonable doubt,” the criteria used in the criminal courts.
If you suspect gross negligence, suspect fraud or theft, you should contact AAL for advice before you engage with those you feel may be responsible.