Correctly worded employment contracts key to recharging fines to staff
‘If employers give staff a contract of employment with the right flexibility then they should not have a problem in identifying the driver responsible for the Penalty Charge/Parking Charge and enforcing their payment of the fine, which would normally be deducted from their pay, either in one lump sum or perhaps over time if the payment is large,’ Lynch told the recent ACFO “Another Fine Mess?” seminar on parking charges.
Highlighting that it was a “red herring” that the identity of employees committing offences could not be provided to the authorities under the Data Protection Act, Lynch said: ‘It is a straight-forward process if companies have the right documentation in place and can prove that employees received it. If a driver has committed an offence, employers are obliged to pass on their details.’
Additionally, Philip Somarakis, partner and specialist road traffic and regulatory lawyer at Gordon Dadds and ACFO company secretary, urged fleet managers to: ‘Identify the driver and get the fine off your desk. Don’t take any flack about a driver’s rights.’
Ms Lynch advised that employers communicated directly with drivers about any fines incurred and outlined two potential courses of action – the recouping of the cost of a fine plus any administration fee levied by the organisation or its leasing company and any further disciplinary action.
Written consent for the costs to be charged and deducted from wages/salary must either be contained within the signed employment contract or directly communicated separately by letter to employees which they have counter signed, advised Ms Lynch. Similarly, if further disciplinary action is to be taken the parameters and process must be communicated clearly and directly to employees.
When considering disciplinary action, perhaps if motoring fines have been incurred following a road crash or in the event of driving dangerously, Ms Lynch said careful handling of the case was required particularly if staff had unfair dismissal rights on completion of two years of service.
‘Employers should act reasonably throughout, ensure parity among all staff to avoid discrimination and should not apply policies inconsistently. Employers must ensure consistency and fair treatment of employees,’ she said.
Lynch concluded: ‘If you have the contract of employment right you have a lot of options. The law is on your side and you can get your money back from employees. However, if allowing staff to repay costs over a period of time be aware of the implications if an employee leaves. Ideally employers should have in writing the fact that the whole balance is deductible on departure.’
Somarakis also warned fleet managers if receiving a Notice of Intended Prosecution in the event of a motoring offence having been committed by an employee not to give the form to the driver and ask them to respond.
‘Companies quite often give drivers the Notice of Intended Prosecution and ask them to respond. That is a cardinal sin. Companies should complete and return the form to the authorities by recorded delivery.’
Finally, Somarakis said that if fleet managers were unable to instantly identify a driver that had incurred a fine – perhaps if they were at the wheel of a pool vehicle – then they must “turn detective”.
‘Fleet managers must exercise reasonable diligence in identifying drivers through checking records – phone calls, emails and receipts, for example,’ he said. ‘Ultimately if you cannot identify a driver then a fleet manager must be able to satisfy a court that it was reasonable not to have a record of who was driving a vehicle at a specific time.’