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  • International Workplace
  • 12 July 2006
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Workplace Law Magazine: Park Life

This feature article first appeared in issue 18 of Workplace Law Magazine (June 2006). More information on Workplace Law Magazine can be found at http://www.workplacelaw.net/magazine/

Park Life

Car park provision can be a legal headache for employers. Get it wrong and face extremely irritated employees: not to mention claims of constructive dismissal, disability discrimination, health and safety failings, and data protection offences. Nick Jordan reports

The British Parking Association has designated 2006 the Year of the Safer Parking Scheme, and for any employer who manages a car park, it’s a timely reminder of the many issues that surround this complex, and sometimes emotive issue. If you do provide a car park for your employees, or are considering doing so, there are some important issues you’ll need to take into account, if you’re to ensure that safety and correct usage are adhered to.

Charging

With an RAC survey from December 2004 (Motoring Towards 2050: Parking in Transport Policy) suggesting that up to a quarter of employees would change their jobs if charges for parking at work were introduced and became too costly, such an option clearly presents employers with food for thought. There’s little doubt that the idea of charging for parking at work raises a great deal of controversy, so if an employer is considering introducing such a scheme, what implications should they be aware of? Jayn Bond, Workplace Law HR advisor, has some words of warning:

“If you have previously provided spaces for your employees free of charge then this could represent a change to custom and practice. If employees work every day at your office and therefore will now incur extra costs, they could consider this to be a substantial change to their situation.

“I would recommend that you consult on the issue with those staff affected before making the change. You should explain to them why this charge is being considered and what the proposed charge is likely to be. You should seek their views and suggestions. This will also enable you to test the temperature — i.e. how upset are people likely to get.

“You then need to decide if you wish to proceed and if you do then you should give the employees notice of the change. I would recommend three months as this is the longest notice that a long-serving employee would be entitled to by law. Employees are unlikely to leave and claim constructive dismissal over a car park charge (unless the charge is extortionate)”.

Thinking creatively may be one way around the problem of charging. Ray Plummer, a Personnel Manager and contributor to the Workplace Law Network Forum, says:

“At West Middlesex Hospital in West London, we offer staff a free bicycle and safety gear if they opt to cycle to work and return their car park permit.”

It’s this kind of approach the Government is keen to encourage.

Access for disabled staff

Access for disabled people when using car parks, has become an increasingly prominent issue. From the tactics employed by a number of recent TV documentaries — which set about publicly embarrassing people without disabilities, but who park in disabled only bays — to the serious responsibilities of employers to their disabled staff, there’s a range of issues to think about.

So, if an employer provides their personnel with car parking, what are the employer’s responsibilities with regard to access for disabled people? Dave Gribble, Senior Access Consultant for MPH Accessible Environments, told Workplace Law that:

“Employers have a duty to make reasonable adjustments for disabled employees and visitors where car parking is provided. This would include providing accessible parking bays for visitors and suitable provision to meet the needs of disabled staff. Any new accessible bays should be designed in accordance with Building Regulations Approved Document M ref: para 1.18. This gives guidance on the size, layout and other design features of accessible parking bays and car parks. BS8300 gives recommendations on numbers of accessible parking bays for various building types. Any devices, such as security barriers and ticket machines, should be designed and located to allow their use by disabled people.”

Of course, failing to provide the necessary measures for access, can lead to serious inconvenience, or much worse. Asked to give an example of how an employer’s failure to provide safe car parking for its disabled personnel could lead to serious consequences, Dave Gribble says:

“A hypothetical example would be where an employer had not provided adequate lighting or a safe defined pedestrian route from an accessible bay to the building entrance and a disabled person using the car park gets run over by a delivery vehicle. In this case the employer may incur a penalty or censure under health and safety legislation and the Disability Discrimination Act 1995.

“An example identified during an access audit was that a security barrier had been installed at the entrance of a car park containing accessible bays. Disabled employees were not consulted and were unable to operate the control to open and close the barrier and were unable to use the car park. In this case the employer may be liable under the Disability Discrimination Act 1995.”

Liability

One of the most important things any company that provides car parking will need to know, is where they stand on liability. If a vehicle is broken into, or an assault or theft occurs in the car park, what exactly are the company’s liabilities? Smita Jamdar from Martineau Johnson says that, in the first instance, there are two big areas that car park managers need to look at:

“Firstly, because the company is making available the car park as part of the employees’ working environment, under the health and safety legislation, it has a duty to take steps to ensure that, so far as is reasonably practicable, the car park is safe for its employees to use. Generally, that means making sure that it is structurally safe and safe to enter and exit. But in this context, it could mean that if the company knows that there have been assaults or muggings, it has a duty to consider what can be done to lessen the risk of such attacks. That might include warning staff about the risks, improving lighting, providing CCTV or security guards. How far the company needs to go will depend on how great the risk is, and whether there is anything that will in practical terms in fact reduce the risk. Under health and safety legislation, the company will have no duties in respect of its employees’ property, such as their cars or the contents of their cars.

“Secondly, if the company leads its employees to conclude that it is taking some responsibility for their cars and other property, then it will have to exercise a reasonable degree of skill and care in protecting their cars whilst in the car park. Again that might include the measures I have outlined above, as well as putting in some sort of automated barrier. However, if the company makes it clear that it is taking no responsibility, for example by putting up signs that ‘vehicles are parked at your own risk’, then it will not be expected to take additional steps to protect the vehicles. The company cannot, unfortunately, opt out of its duties in respect of your employees’ physical well being (as summarised above) in this way”.

What then are a company’s responsibilities to personnel and vehicles using its car park, with regard to potentially dangerous machinery, such as rising parking barriers, ticket machines or ramps? Smita Jamdar clarifies:

“The company has a duty to ensure that it takes reasonable steps to protect users from the consequences of any ‘dangerous’ features of the car park, e.g. rising barriers or slippery surfaces. This could be by using warning signs but if there are other steps that could reasonably be taken to prevent harm occurring, then those should also be taken.

“If a barrier or other machine is defective then the company is likely to be liable for any damage that it causes, although it may be able to seek a contribution towards or an indemnity in respect of any compensation it has to pay to a car park user from the supplier of the machinery or anyone responsible for maintaining it under a contract of maintenance. “

CCTV

If you’re thinking of using CCTV to monitor your car park, then there are some significant data protection issues to consider. Smita Jamdar says:

“One thing to consider when using CCTV would be the data protection angle. For instance, if you’re using the CCTV to passively record a car park for general security, then there may be no such issues to worry about. Simply, use signage to make it clear that the car park is monitored by CCTV. However, a data protection issue may arise if you’re using the CCTV to actively track people’s behaviour around the car park. Such an arrangement would involve having an operator manually using the CCTV to follow people, then you’ll need to make sure that the CCTV is being used for the purpose originally intended.”

Jamdar quotes an example where police brought obscenity charges against a couple caught in a compromising position on camera, only to have the charges dismissed on the grounds that the CCTV in question just happened to film an event that had not actually offended a member of the public, and was therefore not an offence.

For a small business not to be covered by the Data Protection Act, the following should apply:

  • There should only be a couple of cameras.
  • The cameras can’t be moved remotely.
  • Just record on video tape whatever the cameras pick up.
  • Recorded images should be given only to the police to investigate.

If you’re using your CCTV to monitor the behaviour of specific individuals (potentially troublesome members of staff, for instance), or operate the system remotely using zoom in/out, and pan/tilt functions then you’re going to have Data Protection issues.

There may also be licensing issues to consider, with regard to CCTV usage and guarding car parks in general. The guarding activities defined as licensable, and which most apply to car park safety are:

  • guarding premises against unauthorised access or occupation, against outbreaks of disorder or against damage; and
  • guarding property against destruction or damage, against being stolen or against being otherwise dishonestly taken or obtained.

A Public Space Surveillance licence is needed if an operative is involved with using CCTV equipment that is either deployed into fixed positions or has a pan, tilt and zoom capability and they are required to do any of the following:

  • Proactively monitor the activities of members of the public whether they are in public areas or on private property.
  • Use cameras to focus on the activities of particular people either by controlling or directing cameras at an individual’s activities.
  • Use cameras to look out for particular individuals.
  • Use recorded CCTV images to identify individuals or to investigate their activities.

The British Parking Association (BPA) strikes a general note of warning, when it says that:

“CCTV in car parks is governed by the same laws as CCTV installed anywhere. It is subject to data protection and employees must be aware it is there.”

The BPA recommends that employers thinking of using CCTV should first check exactly where they stand, by contacting the Information Commissioner’s Office.

Wheel clamping

For those who have suffered the lost time, financial penalties and — let’s face it — indignity of being wheel clamped, there can be few more irritating road sanctions. But whilst it may not exactly be a great way to make new friends, wheel clamping does offer car park managers some clear benefits, if done properly. Wheel clamping is the practice of detaining a vehicle that has trespassed by parking in a private space without permission. With a fee payable in order to release the offending vehicle, clamping has the express intention of immediately recovering damages due to the car park owner as a result of the trespass, thereby sidestepping the need to pursue the damages through court. All this may be perfectly legal, but before you begin happily clamping every thoughtless driver who dares park on your hard-won parking spaces, there are some critical measures that you must take, if your scheme is to stand up before the courts. Dale Collins of Osborne Clarke says:

“Signage is at the forefront of a clamping scheme’s success. In order to rely upon any wheel clamping scheme the owner of the land must bring the scheme, and the repercussions of breaching the ‘no parking without a permit’ rule, to the notice of those entering the car park.

“The signage must be prominently displayed where it can be read by anyone entering the area and must state:

  • that wheel clamping is in operation;
  • the consequences of parking without permission
  • the cost of removing the clamp (which must be reasonable);
  • contact details for the removal of the clamp; and
  • if the vehicle is to be removed and not just clamped, that fact must be stated.”

Collins also points out that insurance is key when it comes to setting up your wheel clamping operations. He says: “The occupier should check their public liability insurance and ensure they have informed the insurers of the scheme”.

It’s also vital that the people who are physically putting the clamps on are licensed properly as, from 3 May 2005, it became illegal to work as a Vehicle Immobiliser without a licence from the SIA. Be they an external agency, or an in-house clamper, failure to have such a licence can lead wheel clampers into legal trouble, as Collins points out:

“All wheel clampers must be licensed with the SIA. It is not only an offence for an unlicensed clamper to clamp a vehicle, it is also an offence for the occupier of the land to allow an unlicensed clamper to clamp on its land.”

Using wheel clamps to protect your car park has proved popular with some, and with 2005’s much-needed regulatory legislation in place the legal case for clamping is stronger than ever. Getting the costs due to you, without the need to go to court, is a major plus. The simple deterrent of good signage has no doubt deterred many an unauthorised space pincher.

However, there may be drawbacks to clamping, as Collins points out:

“There are clear benefits to introducing the regime if nuisance parking is a great problem. However, clamping does generate its own problems so far as the creation of conflict is concerned, and the health and safety consequences for staff that generates. And, of course, the clamping does not remove the problem from the parking space, so it does not free-up space.”

Collins also points to “the costs of setting up such a scheme, which would relate to the creation of the signage, any increase in the insurance premium, the purchase of the clamps and the cost of the agency employed to undertake the work. If it is done in-house there will be the cost of the SIA licence and training for those concerned.”

However you manage your car park and its safety, it’s worth paying close attention to the issues that surround it, if you’re to avoid some of the many pitfalls that could lead to your car park turning into a major administrative and legal headache.

Sources of Further Information

British Parking Association
www.britishparking.co.uk

ICO
www.ico.gov.uk

Martineau Johnson
www.martineau-johnson.co.uk

MPH Accessible Environments
www.mph-uk.com/environments/index.html

Osborne Clarke
www.osborneclarke.co.uk