EMPLOYMENT
In a recent case – Williams-Henry v Associated British Ports Holdings Ltd – the claimant was found to be fundamentally dishonest. In previous similar cases, the claimant may have recovered damages for the legitimate aspect of the claim due to a “substantial injustice” however the judge in this case, considering all factors, found there was no substantial injustice and the claimant was awarded nothing.
The claimant, in this case, would have been awarded £596,704 for injuries sustained following an accident, however the judge considered all the factors and found her ‘fundamentally dishonest’ within the meaning of the Criminal Justice and Courts Act 2015 section 57.
He considered, in applying the guidelines in determining the case, that she would not suffer a substantial injustice and awarded her nothing for damages.
This was in an effort to stamp out dishonesty but further this particular claimant was unrepentant and also sought to defraud the DWP.
CASE RESOLUTION
In February 2023, fines imposed by Border Force for clandestine entrants being discovered on board an operator’s vehicle increased to £10,000 per clandestine found. Under these changes, both the company and the driver can be fined £10,000 per clandestine increasing the maximum penalty to £20,000 (See our previous article in the May issue of Transport Engineer.)
Following an incident of clandestine being discovered – and a penalty notice being issued – operators have the option to file a notice of objection opposing the fine. This includes demonstrating both the company and the driver have taken measures to secure the vehicle to prevent clandestine entrants gaining access in line with the Carriers Liability Regulations 2002 and the Carriers Liability 2023. Within this notice, operators are also able to submit financial information for consideration in order to reduce any penalty upheld. This is pursuant to the Immigration and Asylum Act 1999 Level of Penalty Code of Practice.
Financial means testing applies to SMEs, whose turnover totals less than €50 million a year. Various factors such as the company turnover and the total number of employees are considered when determining whether the level of penalty imposed is fair. Border Force is also able to consider a reduction in the driver’s penalty for such a notice. This takes into consideration the driver’s income, including any overtime, for three months prior to the incident and the secretary of state can also extend this to include the driver’s own personal circumstances.
Having received instructions on various matters since the introduction of these new penalties, the Backhouse Jones dispute resolution team, led by Libby Pritchard, has since received numerous reductions in operator fines for clandestine entrants. In one particular example, the fine imposed on the operator and its driver totalled a sum in the region of £48,000. The determination of notice received reduced the operator’s fine by 63% and further decreased the driver’s fine by 93% after application of the means assessment.
The team also has a number of appeals ongoing where it is considered that the operator complied with the majority/all of the regulations so the fine should be extinguished. The appeals are due to be heard in June.
BOX: FACT FILE
The traffic commissioners, with the support of trade associations and others, have recently updated the guidance in relation to local bus services registering and operating in England and Wales. Changes in legislation have resulted in an increase in the number of bodies responsible for the registration of local bus services. If you operate in a franchised area – which are covered by enhanced partnership schemes – you will now be subject to different procedures. A full copy of the guidance is available at: www.tinyurl.com/mrxwa5ny.
Over the past 12 months, the traffic commissioners have also updated other guidance documents including the Goods Vehicle Operator Licensing Guide and the Public Service Vehicle Operator Licensing Guide.
All key documents and resources required to ensure business compliancy can be found by searching on the gov.uk website.
