Legal Issues

The Minister for Transport, Martin Cullen, has announced 31 extra penalty point offences with effect from the 1st April next. Mr. Cullen also said that he hoped legislation providing for random breath-testing and the rollout of privately operated speed cameras would be laid before the Dail in the current sessions.

It is timely therefore to consider the issue of employees who commit road traffic offences during their working hours and the extent to which employers might have any liability in respect of those offences and any other issues that arise from an employment law perspective.

USE OF COMPANY VEHICLES

Many employers provide a Company car in the course of employment. In most situations, the car is registered to the Company or individual employer and the employer organises the insurance and tax in relation to the vehicle. The very first thing that an employer needs to ensure is that the contract of employment clearly sets out the provisions relating to the use of the Company car by the individual employee. If tax and insurance is provided by the employer, this should be stated. It should also be stated that the employee has an obligation to ensure that he/she complies with the provisions of the insurance policy relating to the vehicle. Furthermore, the employer should state whether or not any personal use of the vehicle is permitted and, if so, an employer should consider indicating that “reasonable” personal use is permissible in this regard.

DAMAGE TO COMPANY VEHICLES

Employers should give consideration to damage to the vehicle and to whether or not the employer will make the employee liable for any damage to the vehicle that may not be covered by the insurance policy relating to the vehicle or whether the employer will take responsibility for any such damage. Some employers, for example, take responsibility for damage that occurs to the vehicle during Company working time but not for any damage that occurs outside working hours. If an employer has not clearly specified all of these details in the contract of employment, then ambiguity will arise if there is a dispute between the employer and employee about the use of the Company vehicle and this ambiguity can result in an employer being liable on the basis that the vehicle is registered to that employer.

OFFENCES DURING WORKING HOURS

With regard to the issue of offences committed by an employee using a Company vehicle during working hours, penalty point notification is issued to the registered owner of the vehicle. If the registered owner of the vehicle is not driving the car at the time of the offence, then the person who was driving at the time of the offence, must be nominated by filling out the nomination details in column 3 of the relevant notice issued by An Garda Siochana.

Therefore, employers will have to specifically nominate the employee driving the vehicle if they do not wish to take responsibility for the offence committed. Again, it should be specifically stated in the contract of employment that any road traffic offences committed by the employee whilst driving the Company vehicle, whether it is during or outside of working hours, will be the sole responsibility of the employee concerned and will not be indemnified in any way by the employer. This will also act as a deterrent to employees to commit offences while using the Company vehicle.

Employers are entitled to cross reference clauses like this with their Disciplinary Procedure and indicate that any offences committed in the Company vehicle, whether inside or outside of working hours, may become the subject of a disciplinary procedure in accordance with the employer’s Disciplinary Procedure.

DRIVING LICENCE

At the pre-employment stage, prospective employees should be asked about whether or not they hold a full clean driving licence and an obligation should also be placed on them in the contract of employment to advise employers if the status of that driving licence changes during their employment arising out of offences being committed.

LIABILITY FOR CARS ON COMPANY PREMISES

Another issue that arises in respect of employment and vehicles is the liability of employers in respect of vehicles belonging to employees in their personal capacity which are parked on the employer’s premises and are damaged on that premises. What, if any, liability do employers have in these circumstances and what kind of steps can employers take to limit their liability? All employers have a duty under Health and Safety legislation to ensure that their premises is safe. Therefore, if any argument can be made that the car park in which the vehicle was parked was unsafe for any reason, an employee may be able to sue for breach of contract arising out of the employer’s failure to ensure that the premises was safe. Otherwise, if it can be shown that the employer was negligent in some way in the manner in which the car park was set up or managed, there may be some liability from a legal perspective. However, each case in this regard would have to be examined on its own particular facts and it is not possible to be definitive in terms of the prospect of legal liability attaching to the employer in these circumstances.

All employers should ensure that they have a disclaimer clearly visible at a number of points in the car park stating that employees and other individuals who park their cars in the car park do so at entirely their own risk and that the employer organisation will take no responsibility for any damage caused while cars are parked in the car park.