Comments by Alan Blacker

Alan Blacker
Member - 31 posts

Dear Friends, In summation of my earier advice, for the purposes of the NMW and WTR's 'on-call' is the same as 'at work' and this is the basis for all calculations concerning accrued working time. Your friendly lawyer.

Alan Blacker
Member - 31 posts

Hi Graham, I outline the rules towards the top of this thread and discuss them in various forms throughout, hope this helps. Kind regards. Alan.

Alan Blacker
Member - 31 posts

The law is as stated above folks, being on call is accumulated time towards both NMW and WTD working time. Kind regards, Your friendly lawyer.

Alan Blacker
Member - 31 posts

I am afraid I disagree, being on call is woked time for the purposes of the legislation, the mere fact that a call is not received is not relevant. The law on this is straightforward, on call means at work.

Alan Blacker
Member - 31 posts

Thanks Jenny, you have elaborated on my advice for which I am grateful. If your employer asks you to convey passengers for work purposes and you have smoked in the vehicle you MUST say NO.

Alan Blacker
Member - 31 posts

The premis of all the regulations is not concerned with the workplace. It was made clear in parliament from whence the legislation floed that the basic tenant of the law was to protect third part (emploees) from being subjectd to the active and passive elements of smoke. The courts understand that a car which has been used by a smoker will be contaminated with pollutants after te smoker has stopped smoking in it. The premis that the act of smoking an the attendance have to be at the same time to commit an offence isnot correct. If the car is used for work and another person (an employee) enters that vehicle they wll be contaminated. It is on that basis and not the act of smoking that thelaw was drafted. The Parliamentary Counsel made this quite clear in the advice note and guidance papers. Your friendly lawyer.

Alan Blacker
Member - 31 posts

I agree there is a sense of injustice here but let us stand back a moment, we buy a ticket on a flight and thrugh no faultof our own find ourselves being dissed on facebook. That is what has happened(according to the linked article above(see top of page)) so how would you expect a firm to react? If I think you are a berk, is it right for me to make identifiable comments on a website about you or should I just keep my 'rant' private? I may be wrong but I think the firm probably acted in proportion to the offence, otherwise a verbal or non-official warning could have been given. What i would liketo know from you good people is whee should we draw the line?

Alan Blacker
Member - 31 posts

I was referring (quite clearly) to the poor advice mentioned on the site quoted. I do not work for anyone, I am a private client lawyer. As to your comment, again it is not correct, it is possible to receive three points on your licence relating to unlawful parking. There are four instances.

Alan Blacker
Member - 31 posts

I have visited the site and have to say that there are some rather glaring irregularities with the advice being given, for instance the maximum fine for failure to provide information is not three points but six and the fine is £1000 not £300. Taking advice from websites which have disclaimers carries huge risks. Take independent legal advice, either from the site moderator here or myself or from a solicitor on the high street. Additionally you are always free to complain.

Alan Blacker
Member - 31 posts

Sorry Craig that is not true. The law is new and as yet very raw but it is clear from recent Magistrates Court (and Divisional appeals) rulings that the car is still a workplace for the purposes of the law outside working hours.

Alan Blacker
Member - 31 posts

I think she means 'bay' not 'pay'. I would say yes, as it would constitute a breach of the express terms of the use of the car park. It is a contractual term, usually displayed on the site by means f a notice. If the term is not an express term laid out on such a notice, the employer could rely on it being impliedly a term of the use of the car park. Your friendly lawyer.

Alan Blacker
Member - 31 posts

Free speech like any freedom has t be exercised with care and dutiful respect for others, even employers. In my view as a lawyer, I would find it impossible to justify inappropriate face book comments when my client was challenged about them. Our conduct, as human beings, craving rights and freedoms must be beyond reasonable reproach; otherwise we would have to dissolve the democracy in which we enjoy the concept of freedom in the first place. Just because I have the freedom to swear in this chat room, the managers of the chat room enjoy the privilege of excluding me for improper behaviour, accordingly and as a mark of self and peer respect, I don't swear. If an employee writes rude or defamatory material on a website, they should understand their freedom to say such tings is restricted by their mutual duty of trust and respect, a legal doctrine, a human right and a practical restraint of such freedom. Your friendly lawyer.

Alan Blacker
Member - 31 posts

Hi Mal, Essentially 'non-stat' workers could quite effectively optimise their individual rights by instructing a Law Centre to negotiate a non threatening agreement with the service, they could then fomalise their rights and have the added protection of a contract. If they do not wish to unionise this would provide the right level of protection without causing 'trouble' Additionally it would be provided under a LSC employment law Legal Assistance contract so would be funded by legal aid. (eligibility assumed). Law Centre solicitors are trained to the highest standards and provide an excellent foundation for negotiations without the perception of aggression. Your friendly lawyer.

Alan Blacker
Member - 31 posts

For an exclusion clause to be effective it must comply with some rigorous tests and the clause is further subjected to rather aggressive mitigation by the courts, especially where the damage is great or onerous. It is always best to speak to the landowner first about provisions for damage before using the land, it is after all a licence or contract term and must be fully researched like any other agreement. Your friendly lawyer.

Alan Blacker
Member - 31 posts

Issuing legal proceedings to 'see what happens' is both dangerous and unprofessional. A wasted costs order for a foolish claim will run into thousands of pounds and a case based on an urge to wreak revenge will have little chance of success. It is far better to establish a good sound claim in negligence against either the land owner for fialing in thier dty to povide a safe car park or the proposed defendant driver for causing damage by negligence. If neither is sustainable, drop the whole idea and choose to park elsewhere. It is one thing to suspect and quite another to prove.

Alan Blacker
Member - 31 posts

You have little ground foraction unless th car park owners were negligent in the managemet of the car park or breached a term of the contract to provide adequate protection. You are entitled however to seek the landowners assitance by way of records and suchlike in order to make reasonable enquries over the vehicle which may have caused the damage. The police can assist in some instances as section 35 of the Data Protection Act compliments the data retrival entitlement under the Police and Criminal Evidence Act but they will only get involved if criminal damage is alleged.

Alan Blacker
Member - 31 posts

Hello folks, it is a breach of the common law duties of obedience and mutual trust and respect for an employee to be under the influence of unlawful drugs whilst at work; prescription drugs are not provided for unless they significantly impair performance. If the use of prescription drugs have been disclosed (it is disclosure which invokes the protection) to an employer then section 6 of the Disability Discrimination Act compells an employer to make reasonable adjustments to the workplace. (including rest breaks to take medication and to regain composure following taking drugs). The unlawful possession of drugs is always an offence and is reasonable grounds for disciplinary procedures to be invoked. Reasonable suspicion which is backed up by a reasonable investigation would permit the employer to dismiss if a properly instituted investigation was followed and an appeal was independently scrutinised (say with a fellow worker). stage one, interview with a fellow worker present, stae two search your premises and stage three hold further interviews following your findings. Stage four, allow your employer to seek advice and representation froma union and conduct an appeal if necessary. Hope this helps. Your friendly lawyer. Alan.

Alan Blacker
Member - 31 posts

As to the matter of public place, the courts have interpreted the meaning in the same manner as they have with regard to public order offences and they carry the 'normal natural' meaning, if the public can gain entry by paying a fee they are essentially a public place. The company car park where visitors can enter by invitation are not public unless there is no special reason for needing entry, by which the caselaw attempts to look at the necessary entry requirements. Accordingly a truly private company car park is a private place. I feel however we have generally strayed off the script. The main issue was the duty of care and the liability position of car park owners and my original advice has not really been discussed further so unless I can be of further assistance I will not contribute to this particular discussion board again as it adds length unnecessarily. I remain available if people have further questions however. I hope this helps. Safe driving everyone. Your friendly lawyer.

Alan Blacker
Member - 31 posts

For the sake of clarity, the fact that you are present or absent at a designated place of work DOES NOT Change The basic rule, it merely provides evidence for the applicant in a tribunal action.