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DOES THE AFTERMARKET HAVE A PROBLEM WITH OVERTIME?

DOES THE AFTERMARKET HAVE A PROBLEM WITH OVERTIME?

By Tina Chander – partner and head of the Employment team at leading Midlands law firm Wright Hassall

The issue of working late can be a sensitive one within many businesses, as the line between flexibility and unhealthy overtime becomes increasingly blurred.

Most people don’t mind staying late occasionally if there’s a vital piece of deadline-dependent work that still needs to be completed, and this is commonplace for organisations across a range of sectors.

However, when unpaid overtime is pushed to unreasonable lengths and negatively impacts personal time and sociable hours, it can have significant implications on employees’ work-life balance.

In 2017/2018 over 600 employers were ‘named and shamed’ as having failed to make payments in accordance with the National Minimum Wage (NMW).

On the clock

Usually, the term overtime means staying behind past contracted hours.

However, this isn’t always the case, as employees who work through their lunchbreak or get to work much earlier than their colleagues are also classed as working overtime.

One of the biggest reasons for salaried staff working later hours is workplace culture, where people fear criticism if they leave on time.

It is important for employers to ensure their contracts give all staff clear guidance on what is expected with regards their working hours – clear parameters will prevent any grey areas becoming more complicated issues later down the line.

Understandably, senior staff, who are on higher salaries, should expect some additional hours just to get the job done.

The bigger issue comes when more junior members of staff are working late, as there is a risk they could end up working below the minimum wage.

Under the working time directive, UK workers cannot work more than an average of 48 hours a week unless they sign an opt-out, and most workers are entitled to a rest break of at least 20 minutes if they work longer than six hours per day.

While employers do not have to pay for overtime, an employee’s average pay for the total hours worked must not fall below the National Minimum Wage.

Possible penalties

If an employee is continually working over their contractual hours and their average pay falls below the National Minimum Wage, the employer can face both civil and criminal penalties.

Under civil penalties, the employer will be issued with a Notice of Underpayment and they will be required to pay a penalty to the Secretary of State within 28 days. Alternatively they may be ordered to ‘self-correct’.

The current financial penalty is 200 percent of the total underpayment up to a maximum of £20,000 (reduced by 50% if it is complied with within 14 days of service).

Employers who fail to pay in accordance with NMW can be named by HMRC, which can negatively impact operations and relationships.

Where an employer refuses to engage with the civil enforcement procedures, criminal penalties can be applied, which could include the conviction of a summary offence and the fine in respect of this can be unlimited.

Comprehensive contracts

It is important that employment contracts address overtime.

Your contract may explain that staff can claim time off in lieu (TOIL) for some overtime, but it’s up to businesses to ensure employment contracts are legal and reflect their own needs and expectations.

Most businesses will accept busier periods require staying later, but if overtime consumes entire evenings or limits time with friends and family it can become much more serious.

It is crucial that policies and contracts are routinely reviewed to allow for overtime and make clear distinctions between what additional time will be covered and what won’t be.

If you are unsure whether your business has the appropriate measures in place, contact our legal team.

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BREXIT: UNCERTAINTY AND BUSINESSES CONTRACTS

BREXIT: UNCERTAINTY AND BUSINESSES CONTRACTS

By Lindsay Ellis – Lindsay Ellis advises on a range of legal matters, including outsourcing, procurement and commercial contracts for Warwickshire solicitor firm Wright Hassall 

Lindsay Ellis

Uncertainty surrounds the timing of Brexit, but when it does happen, there will undoubtedly be an impact on UK businesses and their contracts. It is important that organisations consider how Brexit might affect existing contracts.

Existing contracts

For many businesses, Brexit could impact their supply chain and they should consider the performance of obligations by subcontractors and suppliers. Other key areas to consider include; term, territory, currency, tariffs, customs clearance, resources, licensing/ consents and tax. Failure to review and plan for these could result in increased costs and/or damage to business performance.

Force majeure 

A contract typically contains force majeure clauses. Depending on the drafting, these can relieve a party from liability for a breach resulting from ‘circumstances beyond its reasonable control’. However, if Brexit was likely when the contract was agreed, it could be argued the parties should have planned for its effects. Without a specific reference to Brexit, force majeure clauses are unlikely to help of itself, but depending how the clause was drafted, it might address delays in delivery of goods due to crossborder issues.

Compliance with law clauses

Many contracts state that parties must comply with applicable law. It will be a matter of interpretation whether such a clause could oblige a party to absorb the costs associated with Brexit-related changes in law. Long-term contracts typically address what will happen if the law changes, often specifying that charges can only be increased in limited circumstances, with the supplier required to consult with the customer before making any changes.

Termination 

The contract may include scope for termination, by either party. This may be in connection with circumstances arising from Brexit related events or a failure to agree a change. If a contract’s termination clause gives a party a right to terminate on relatively short notice, the prospect of termination can always be raised to encourage negotiation.

Common law and frustration

Frustration arises where an event occurs after the date of the contract, radically transforming the obligations of either party or making it impossible to fulfil the contract. However, a contract is not frustrated due to inconvenience, hardship, financial loss or when the event should have been foreseen by the parties. As such, it is generally accepted that frustration will not help with Brexit, although it might apply if certain changes in law were to be made subsequently, which would make it impossible to fulfil a contract.

Interpretation and implied terms

The courts are unlikely to interpret a contract or imply a term to assist a party adversely affected by Brexit and will not relieve a party from the consequences of their poor business practices, if that involves departing from the natural meaning of the contract. Similarly, the fairness of a proposed implied term or the fact that the parties would agree to it is insufficient grounds for implying it. Both interpretation and implication of terms have regard to the background knowledge reasonably available to the parties at the time they entered the contract.

What are the options?

By not drafting contracts that address Brexit uncertainty, there is a risk that a party will be obliged to continue to fulfil its contractual obligations, even if Brexit-related events render it commercially unattractive. However, doing nothing may be an option for a party who can terminate contracts at short notice or are confident in their ability to perform regardless of Brexit’s outcome.

‘Brexit’ clause

Inserting a ‘Brexit clause’ into contracts will trigger some change in the parties’ rights and obligations when a defined event occurs. The best a Brexit clause may offer is a binding requirement for the parties to try and renegotiate the contract. For other contracts, it may be possible to specify the consequences of certain events, but with Brexit, there is the risk that events occur that have not been first considered.

Making changes

Organisations must take the time to review their existing commercial contracts, ensuring every possible outcome is accounted for and the necessary clauses are added. Seek advice from experienced contract lawyers and plan for life after Brexit, sooner rather than later.

 

 

 

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MAKING TAX DIGITAL

Digital tax will be taxing

By Adam Bernstein 

By the end of March 2019, some one million UK businesses will need to have prepared for what many consider to be the biggest change for years in how they deal with HMRC. Despite what some may think, this has nothing to do with Brexit.

The changes, which will affect every single transaction a firm makes, come from what HMRC calls Making Tax Digital – MTD. While HMRC thinks it’s the answer to everyone’s tax problems, the reality is that life is about to become very complex for business.

The background

Jason Piper, senior manager for tax and business Law at the ACCA, an accounting body, says that MTD has been around five years since the then minister, David Gauke, announced bold plans for The Death Of The Tax Return, which became Making Tax Simple before finally settling on Making Tax Digital. Says Piper, “the underlying goal is to transform the whole UK tax system, both HMRC’s internal IT infrastructure and the way that taxpayers engage with it.”

It appears that by having taxpayers keep their records digitally, engaging with HMRC entirely online, everyone’s costs should be lowered, and avoidable errors will be minimised. But as Piper puts it, “as a utopian ideal the seamless transfer of information, with taxpayers able to see all their records in one place in real time, has clear attractions – but from the start, practical issues around the ability of taxpayers to adapt, especially in the suggested timescales reared their heads.” And there has been no shortage of commentators ready to remind HMRC of government’s record on large scale IT projects – MTD would be one of the biggest, and riskiest were it to go wrong, ever attempted.

Rollout

Problems with the rollout have been compounded by unprecedented political developments such as the snap election and the Brexit referendum – both delayed the ability of civil servants to consult with stakeholders.

The result is that the initial plans to force virtually all businesses to keep their records for profits taxes digitally from 2018 were abandoned; now all but the barest bones of MTD have been put on hold to free up resource for Brexit. Nevertheless, firms will have much to worry about from next April.

Impact

From April 2019 HMRC will have MTD in place for VAT for all businesses above the compulsory registration threshold of £85,000. Income and Corporation Tax will follow at some point.

Of course, as Piper notes, MTD won’t apply to those businesses not (yet) registered for VAT – “even if they do subsequently register for VAT, they’ll be outside of the regime until 2020. Unfortunately, that doesn’t necessarily mean they can relax.”

So those who are VAT registered need to prepare – now.

For VAT, MTD subtly alters how the online filing works and makes a huge change to how businesses prepare for that submission. HMRC’s existing web portal will close for MTD filers and instead they’ll need to use specialist software to create and submit their return.

“But the biggest, unprecedented, change,” explains Piper, “is in how much control HMRC’s processes will have over how you run your business. Under online filing, you submit your VAT return to HMRC in their prescribed digital format so it’s easy for them to process. But you’re in control of how the records are kept that help you work out the nine numbers you need for the return. Under MTD, it’s not just how the nine figures reach HMRC that’s legally regulated; it’s how they’re calculated, and the format (electronic) of the records that support it which is laid down in law.” In essence, he says that every transaction will need to be recorded digitally (so on a spreadsheet or in accounting software) and those records have to automatically drive the return calculation. If you’re caught up in MTD, you’ll need to be online aware, or have a very accommodating accountant.

Piper outlines two situations where businesses can carry on as usual (for the short to medium term at least). One is if you are registered voluntarily for VAT: “If your annual turnover is below the threshold then operating the MTD regime will be optional, and you can continue filing via the portal.” Turnover has to be below, and stay below, that £85,000 limit from April 2019 though – as soon as turnover goes above the limit MTD obligations become compulsory, permanently. This means that even if turnover falls later on the requirement to keep recording everything digitally will stand unless deregistering entirely from VAT. “Firms can,” adds Piper,” voluntarily waive that exemption and operate full MTD processes. As long as turnover stays below £85,000 they can withdraw that waiver and go back to paper/online filing, from the end of the quarter they’re in.”

All of this means an extra headache for businesses with turnover hovering around £85,000 – one big transaction that might trigger compulsory registration. The rules are a minefield here.

The other route to staying outside MTD, according to Piper, “is to qualify for one of the existing exemptions from online filing for those who are digitally excluded or on grounds of religious belief. HMRC have said they will publish guidance on this in November 2018 and expect to have the application process ready by January 2019, but we can use the regulations and what we know about the current position to make some predictions.”

Piper says that it’s a myth that taxpayers can get religious exemption just by telling HMRC they’re a member of a tiny sect that shuns technology. The bar to clear is incredibly high and involves proving that the individual’s entire life revolves around their beliefs.

The other exemption he points to – digital exclusion – “is likely to get a lot messier for HMRC and for taxpayers. “At the moment, around 4,000 taxpayers are exempt from online filing ‘by reason of age, disability or geographical location’. That means they either can’t use a computer to meet HMRC’s requirements, or even if they could, they can’t get reliably online because there’s no internet connection at their place of business. The same legal test will apply for MTD.”

However, historically HMRC has taken a hard line leaving many businesses who couldn’t file online themselves to pay an accountant to fulfil the digital obligations. But there the difference ends he says: “Filing the nine figures of the return isn’t that expensive; paying a professional adviser to maintain the digital record of every single transaction would be a different story though, and that’s what MTD would require. The stakes are much higher this time for small businesses, and we expect far more to need to apply for exemption because paying someone else to do what’s needed just isn’t economic.”

Crucially Piper says that there’s an “any other reason” catch-all term built into the regulations and it’s possible that the tax Tribunals “would include the economic impact on the business of shifting to digital in that – so if the disruption would effectively bankrupt a business, that could be grounds for exemption.” Put bluntly, if claiming exclusion as a sole trader then it’s just the trader’s own circumstances that matter. For a partnership though, every single partner needs to be excluded. If just one could maintain digital records and file online then the partnership would be expected to. For a company it’s likely to be even more complicated to assess.

Action

Piper says that the first step is to simply establish if HMRC expects MTD to apply, that is, the business is turning over more than £85,000 per year. “If so, start to prepare, or collect the evidence that you might not need to because you’ll be exempted.”

Next, if the business already uses an accounts software package then it will probably support MTD filing and record keeping – the key is to check without delay.

“If you don’t use any digital tools” says Piper, “then you’ll need to start, and quickly do your own research to find a suitable product.” He reckons that there will be an official HMRC tool, but government rules on commercial competition means that businesses might do better to search out resources that accountants use. Accountingweb.co.uk offers reviews on products.

Spreadsheets will still be fine for the basic record keeping Piper advises, “but you’ll still need access to a filing package as well, known as ‘bridging software’. In a variation on the current practice of phoning your accountant every three months with the nine figures, you could post them a USB stick, or email a spreadsheet with all your records (in the right format) once a quarter. Their software could do the rest, but it’s likely to cost more than the current equivalent.” Of course, doing this means that there’s scope for things to go wrong, and it will mean an accountant doing more which will be reflected in their bill.

The advice to those who think they might be, or should be, exempted, it to start gathering evidence. Once HMRC is accepting applications for exemption, get it in early taking advice from an accountant so that the application is correctly worded. And if rejected – appeal. Don’t ignore MTD as it’s not going away.

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HOW TO SELL A BUSINESS

By Adam Bernstein

We’ve seen the sale of plenty of family businesses in the aftermarket over the last couple of years. It isn’t just down to the major buying groups stamping their feet either, for all, there comes a point when it’s time to ask whether the business should be sold. The question for most is, how?

According to David Emanuel, partner at law firm VWV and head of its Family Business team, the prime reasons for selling are retirement, the need for investment and no one else to take over.

Take the first – retirement. As Emanuel notes: “for many business owners, a large proportion of their personal wealth may be tied up in the business. Some are able to take profit out during their working life to buy homes and build up pensions. But many need to crystallise that value to fund their retirement.”

Next comes the need to grow the business. As time progresses, some owners ask whether they have it in them to take the business to the next level. Clearly, if a business is not the right size for the market it will not survive; looking for someone external (and usually bigger) to buy out the firm can be a solution which also allows the owner to realise the value in their business.

A variation on this means external investment, for instance private equity investors, who take a stake in the business with a view to exit within three to five years. From Emanuel’s perspective, “this offers the current owners the opportunity to build significantly higher value with external investment while postponing the exit.”

But what if there is no internal succession plan? Emanuel frequently sees family owned businesses wondering whether the next generation want to take the business on: “For many the family is a strength and a USP, and the thought of passing the business to the next generation is attractive. But in practice, successful transfers between generations are rare.”

But few last. A 2015 Economia report, How to maintain a family business, suggests that in the UK only 30 percent make it to the second generation and around 12 percent to the third.

Opportunity Knocks

Sometimes an offer comes in at the right moment so that selling becomes an option. What do you do?

Emanuel’s first response is to take advice.

“Many businesses will probably know who is likely to be interested in buying them, and in some cases informal contact, particularly where there are personal relationships with potential buyers, can sound out interest.”

But he offers a note of caution: “Do not underestimate the potential adverse reaction of staff, customers, and suppliers to rumours of a sale. Maintaining confidentiality for as long as possible is a key feature of a successful exit.”

The message is clear: Seek professional help from the moment you decide to sell. Accountants, solicitors, or specialist corporate finance advisers, can all help formulate a plan, including a strategy for confidentially marketing the business, advice on valuation, and preparing the business for sale.

Sale processes

The next stage is the actual sale which Emanuel says comprises four steps.

“The first,” he says, “is to market the business else no one will know that it’s up for sale.” He says that the firm’s accountants or specialist corporate finance advisers will help put together a sales memorandum and circulate this (on a no names basis initially) to potentially interested parties.” A Non-Disclosure Agreement should be part of the process.

Once a buyer has been chosen, the next stage will be to agree the outline commercial terms of the deal and timescale – “Heads of Terms”. Emanuel describes these as “non-binding in most respects but they provide a framework for the negotiation of the deal from which the parties should not normally stray other than in exceptional circumstances.”

And then there is due diligence – mentioned earlier. “This,” says Emanuel, “is the process by which the buyer seeks to find out about the business, its assets and liabilities, trading relationships and employees.” Experience has taught him that sellers often underestimate the amount of work this generates.

The penultimate stage is the sale agreement where the main contract for the sale will (normally) be drawn up by the buyer’s solicitors to be negotiated with the seller. In practical terms, Emanuel says that most of this will deal with risk apportionment – “who is liable, if for instance, there is a hidden tax liability, or any employee makes a claim after completion for something that happened whilst the seller was in charge?” These issues are, he says, dealt with through a process of warranties – in effect, guarantees.

And lastly comes completion where the documents are signed, the monies are paid, and the business transfers.

In the End

With any complex process the sale will usually take several months from its starting point and involves a huge effort. But as Emanuel has seen, the sale can mean that “owners often have mixed feelings about leaving behind the business they created and have run for years.” His suggestion is to think about what is coming next rather than what has been left behind.

 

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PROTECTING YOUR POSITION

If you get lost and ask for directions, the suggestion that “you don’t want to start from here” is rarely, if ever, helpful.

So it is with advice about bad debts and customers failing owing significant sums. Provided the debt isn’t going to cause a “domino effect” failure lessons need to be learned from each painful loss. A sale is never a sale until it is paid for and it is wise to ensure that you only reward your team based on sales that are actually paid for. If not, you should at least have a clawback clause in employment contracts.

When a business you have been dealing with fails and you find yourself dealing with the liquidator, administrator, official receiver, or trustee in bankruptcy etc. you need to take active steps to protect your position.

The removal of the Crown’s preferential status and the introduction of “the prescribed part” (a ring-fenced fund that must be made available to unsecured creditors in a liquidation or administration) was an attempt to better apply a fair distribution. Sadly, too many prescribed part payments amount to only fractions of a penny in the pound and serve only to annoy creditors whose fingers have been burned.

Action plan

No list of actionable steps will ever be complete, but avenues to pursue include taking good advice quickly, especially if the sums involved are significant, and checking that the company in insolvency is the one that you supplied and whether you can recover any goods supplied under retention of title. If so, act promptly. Similarly, if you have a ransom/leverage position to secure payment consider using it.

Ask questions about what happened to stock you supplied. Did it go straight to someone else? Has it created a debtor? Where is that balance now showing as due? Were any of your supplies made via inter-group transfers to associated, group or successor companies which have resulted in you being put in a worse position? Are they challengeable?

And then there is what you were told to secure the supply. Was any of this an exaggeration or false? It’s entirely possible that Theft Act or other offences have been committed. Also consider if sales were made on the introduction of a third party. Could there be any recourse to them?

Don’t disregard anything you’ve heard on the grapevine that may be of assistance as contracts may have gone off to a director’s new company or employer for example. Can any of this information assist the insolvency practitioner to prosecute or disqualify the directors and shadow directors? This could aid recovery of funds or go some way to prevent a repeat performance.

Lastly, claim any VAT bad debt relief, and in terms of dealing with the insolvency practitioner, submit your proof of debt and vote for who you want appointed as soon as possible.

Don’t ignore ROT

Retention or Reservation of Title (ROT) clauses are attempts to amend the Sale of Goods Act so that suppliers of goods are able, where they have satisfied all of the legal requirements, to get their goods back when a customer isn’t able to pay them.

ROT clauses are no silver bullet. They are of limited use in certain markets – suppliers of services or perishable goods in particular. Hauliers, for example, claiming ROT over freight they’ve moved will find the process doesn’t work.

The purchaser must still have possession of the goods. Whilst the ROT clause may be effective against the original buyer it will not work against a third party acquiring the goods “in good faith” and without notice of the clause. Trying to trace into sale proceeds is unlikely to succeed. Generally, the goods supplied will have to be in an “as delivered” condition – for example, leather is as it was delivered not how it has become when made into seat covers for a classic car. Where a component has been bolted into an engine and it may be unbolted then it is “economically separable” and recoverable, as might panels that have been bolted into place. But panels welded on or a resprayed panel won’t be. There have been arguments over petrol put into a petrol tank – are you taking out only the petrol you supplied or are you also taking petrol that was already in the tank?

Clearly it is easier to argue over goods that are on a shelf that can be identified as having been supplied by you and have not been paid for. This last point doesn’t matter so much where there is an “all monies clause” as with this anything you’ve supplied may be claimed provided there has always been a debt outstanding. That said, once the balance is cleared to zero title on all previous deliveries is likely to have passed to the customer.

Exercising your rights must be balanced against the costs of collecting your goods, re-stocking them in the warehouse and the probability of being able to re-sell them (especially if they were bespoke/made to order).

When there is an insolvency ROT may give you some leverage – especially if your goods are key to the company finishing work in progress. You should incorporate your ROT clause into your contracts (before the supply of goods and this means going well beyond just having terms and conditions on the back of invoices, referred to elsewhere or on your website).

But when you sell goods on credit you need to keep your ear to the ground, be proactive and act quickly when things start going wrong with one of your debtors. Prevention is always better than cure.

Insolvency and employees

It’s a sad fact that employees also lose out when their employer fails. The Employment Rights Act 1996 (ERA) provides employees of an insolvent business with the right to make claims against the National Insurance Fund (NIF) through the Redundancy Payments Office. This accelerates payments to employees (usually 6-8 weeks from the date of insolvency) and so negates some of the impact on them. The NIF then claims in the insolvency “standing in the shoes” of employees for sums paid.

Under current rules, an employee will be able to claim for arrears of pay; all accrued holiday pay; unpaid contributions to an occupational pension scheme; any protective award made by an employment tribunal; pay in lieu of notice, damages for wrongful dismissal or unfair dismissal; and redundancy.

The amounts paid out to employees by the NIF are currently limited to £508 (effective from 6 April 2018) per week per employee (for each of the entitlements above). Therefore, if an employee earns above £508 per week, the excess will be treated as an unsecured claim and will only be paid if anything is paid through the insolvency to unsecured creditors.

Sub-contractors are not considered employees which means that they are unable to claim against the NIF. Any amounts due to a sub-contractor for work done will be treated as an unsecured claim in the insolvency.

 In terms of other types of claims, such as expenses for items that include mileage or travelling, these cannot be claimed against the NIF. However, the employee can submit a claim in the insolvency as an unsecured creditor for any of these.

As for directors, the ERA defines an employee as an individual who has entered into or works under a contract of employment. A contract of employment is defined as a contract of service … whether express or implied, and … whether oral or in writing.

It is fair to say that claims by a director as an employee are subject to greater scrutiny than the claim of an employee. Unfortunately, some of the decisions made by directors in order to improve the financial position of a company could adversely affect their ability to make a successful claim to the NIF for any of the entitlements listed earlier.

Some of the more common factors taken into account by the NIF in deciding whether to accept a director’s claim as an employee involve whether the director received a regular monthly/weekly salary; if they’d made any PAYE and Class 1 National Insurance Contributions; whether they had a signed contract of employment (dated prior to the insolvency); and whether the director took holiday.

If the answer to any of the above questions is no then, in an insolvency, a director’s claim as an employee may be rejected by the NIF.

However, case law provides that no single factor is conclusive and that all factors must be weighed up to decide whether a director is also an employee.

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THE GDPR LOWDOWN

THE GDPR LOWDOWN

In part two of our GDPR guide, Hayley Pells explains how practical steps will help you be ready.

It hasn’t been a good month for the public’s perception of how companies use their data. You may have noticed that during the coverage of Facebook and Cambridge Analytica on TV that Elizabeth Denham, the UK’s Information Commissioner, would pop up to reassure the public that steps were being taken to regulate how their data was used and stored by companies, which was of course a reference to GDPR. If there was any doubt about how seriously the country is going to take the new legislation, this will be a wake up call.

Last month, we explored the background of GDPR and how it is going to affect your business, this month, we are going to explore a step-by-step guide to show you how you can become legally compliant yourself. If you are unsure of the process there is still time to get some professional help. There are independent consultants all over the country and there are larger organisations who are able to roll out a fast to access service. The average garage owner can do this in-house for themselves, but if you are busy, it could be a more cost effective solution to outsource.

STEP 1
Awareness

Following on from last month’s article, you need to make sure all of your team know about the legislation. In my case, trying to explain it to my father who I work with (and is in his late sixties) is a hoot, but we got there. The key area to get across is the impact this compliance will have on the business and acknowledging the time and cost it will require to implement. Do you have a risk register? It could be useful to have one. Compliance can be difficult if the preparations are left to last minute, especially if you then plan to outsource.

STEP 2 – Current situation

What personal data do you hold about your clients and staff ? Do you really need it? This is a good opportunity to “clean house.” Dispose of the unrequired information responsibly, ensuring that the data is inaccessible at the point of disposal.
What you should be left with is the information that you need. What do you do with it? This is how compliance with the accountability principles of GDPR are achieved. You need to know what information you hold, where it is held and how it
is held. It must be held securely. When sharing data, this needs to be done responsibly. For example, does someone else process your payroll? Now is the time to check that the information you share is being done so in a responsible manner and that your service provider is up to speed with their obligations.

Having assessed your current situation it is a good idea to record it and then outline your strategy for improvement. This is a very similar process to how you would complete a risk assessment.

STEP 3 – Communicating
privacy information
Do you have a privacy notice? Currently, when you collect personal data you need to give people the following information;
– Who you are
– How do you intend to use their information

That information you have probably done without thinking, to continue with the payroll simili “I’m Fred Bloggs, I need your NI number to process your pay.” With the GDPR, this is expanded upon, now there are a couple of extra things you need to tell people;

– Your lawful basis for processing the data
– Data retention periods
– The individual’s right of complaint to the Information Commissioner’s Office

So for this I shall use the example of information that I gather for a MOT test. My lawful basis for collecting information about my client is that I have been tasked with performing a MOT test on their vehicle. I keep this data for one year and the ICO’s website can be found at ico.org.uk – they are the Information Commissioner’s Office, the UK’s independent body set up to uphold information rights in the public interest. The GDPR requires that plain language is used, every step should be as clear and concise as possible.

STEP 4 – Individual’s rights

You should check and record your procedures to ensure they cover the following rights of the individual, include how you would erase personal data or provide personal data electronically in a commonly used format;
– The right to be informed
– The right of access
– The right to rectification
– The right to be forgotten
– The right to restrict processing n The right to data portability
– The right to object
– The right not to be subject to automated decision-making including profiling

Now bear with me, this all probably sounds like something completely new, but before spanners are thrown up into the year and “this modern euro nonsense is just taking over everything, I am but a simple mechanic” is hailed (or was that just my father?). Let us examine what this means practically. A lot of these rights are just basic common sense, you are probably employing them right now – the key areas that are significantly different are mainly within the right of portability, it only applies;

– To personal data an individual has provided to a controller
– Where processing is based on the individual’s consent or for the performance of a contract
– When processing is carried out by automated means With the Data Protection Act, you could, if you so wished, charge a fee for the provision of data to the individual, under the GDPR you cannot and the information provided by the ICO insist that it be provided in a structured commonly used and machine readable form.

STEP 5 – Access Requests
Step four outlined the right the individual has, step five now examines how those rights are handled. It is good practice to have this recorded and share it with everyone in your organisation.
– No charge for information requests
– Information to be given within a month (under the Data Protection Act, this was 40 days)
– You can refuse or charge for requests that are manifestly unfounded or excessive
– If you do refuse a request, you are legally obliged to tell the individual why and that they have the right to complain to the supervisory authority and to a judicial remedy. You must do without undue delay and at the latest, one month.

If you have a large organisation or you handle large numbers of information requests this may be a good time to assess the implications of dealing with requests quickly. It may be worth considering the desirability of systems that allow individuals to access their own information online.

STEP 6 – Lawful basis for processing personal data
As individuals now have a stronger right than under previous legislation to access their personal data in order to achieve compliance with the GDPR, you should document and share your lawful basis for the collection and processing of this data. This is especially important now individuals have the right to deletion of their personal data.

STEP 7 – Consent
Consent cannot be inferred by silence and must not be an “opt out” (no pre-ticked boxes or assumptions). This is quite a broad area and will be explored further next month with detailed guidance. Consent cannot be thrown in with your general terms and conditions as it must be freely given, specific, informed and unambiguous. In my opinion, post 25th May 2018, this is going to be the next big goldmine for all those companies that are currently benefiting from the PPI refunds, it will be an easy area to identify non- compliance if the correct procedures are not in place.

STEP 8 – Children
Before shoulders are shrugged that you don’t deal with children, first understand what is meant by the term “child”, although the consent given by children within this context tends to be more concerned with young children and internet related services such as social networking, it would be a good idea to consider how you handle apprentice’s (or any other employee or client who are under 18) information. Currently the GDPR sets the age at 16, this may be lowered to 13, being mindful of how this age limit may change and implementing into your policy documents for the younger people that you may deal with will be the best method to achieve compliance.

If your organisation does deal with children, you must remember that consent must come from someone with “parental responsibility” and has to be verifiable. Your privacy notice must be written in language that children can understand.

STEP 9 – Data Breaches
What to do if it all goes wrong? The legislation does consider that like locking the door to your home doesn’t stop thieves getting in, you may be subject to a data breach that, in under normal working circumstances, would not happen.

If you have a breach, determining the nature of the breach will direct your next course of action. You only need to notify the ICO if the breach is likely to risk the rights and freedoms of the individual, for example, if it could result in discrimination, damage to reputation, financial loss, loss of confidentiality or any other significant economic or social disadvantage. If this breach is likely to result in a high risk to the rights and freedoms of individuals, you will also have to notify them directly.

In order to achieve compliance with the GDPR you must have procedures in place that detect, report and investigate personal data breaches. Having a good clear out at step two will reduce the risk in this area.

STEP 10 – Data Protection by Design and Data Protection Impact Assessments
Remember when you had to uncheck a prefilled box to opt out of things online? Now you have to check it yourself, this is what that is about. The chances are, if you collect data in this way, this is something that you are already aware of and I am personally at a loss as to why you would have a need to process information in this way within the automotive aftermarket, but I am sure there is someone out there who could enlighten me!

STEP 11- Data Protection Officers If it is everyones’ job, nobody does it. Identifying a person responsible for data protection compliance is now a formal obligation in certain circumstances. You probably won’t be one of them, but it is still good practice to formally appoint someone to oversee your compliance, that person should take proper responsibility for your data protection compliance and has the knowledge, support and authority to carry out their role effectively.

STEP 12 – International
If you are lucky enough to deal internationally with your organisation you should determine your lead data protection supervisory authority and document this. The lead authority will be where your central administration is located but only relevant where you carry out cross-border processing. (This step doesn’t apply to my garage. Currently).

Hopefully, this article will be helpful in becoming compliant for yourself. The advantage in doing this yourself will enable your organisation to be familiar with the new legal responsibilities organisations have with respect to personal data. The next article will thoroughly examine the subject of consent and how it is applied in this context.

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COMPANY DIRECTORS UNDER THREAT

COMPANY DIRECTORS UNDER THREAT

Creditors must be taken care of as well as the business itself

Running a company and holding a directorship involves a number of duties and obligations. The law is very prescriptive about this, and for good reason. In exchange for limited liability and general immunity for company debts, directors must care for the success of the business and also, should insolvency loom, protect the position of creditors.

The authorities take a dim view of those that breach the law. Take the November 2017 case of Kieran Jon Fox, the sole director of Doncaster Auto Parts Limited. He was disqualified from being a company director for three years and six months for trading “to the detriment of HM Revenue and Customs” by failing to pay £94,999 in respect of PAYE, National Insurance and VAT – monies owed at the time of liquidation. HMRC’s analysis of Doncaster’s bank account showed that at least £505,877 was spent from the account between 7 June 2015 and 9 June 2016. Over the same period at least £95,687 was paid to him in respect of loans, wages and dividends and at least £373,537 was paid to other parties. Total liabilities to creditors at liquidation were £358,237.

DIRECTOR’S DUTIES
According to Peter Windatt, an accountant and licensed insolvency practitioner with BRI Business Recovery and
Insolvency, companies must have at least one director who is legally responsible for running the company and making sure its accounts and reports are properly prepared.

Directors must be at least 16 and not disqualified; while most have a director’s title, the law recognises what is termed a shadow director. “An individual in this situation,” says Windatt, “is without title but nevertheless acts as if they are a director. Consequently, the law assigns them the duties and obligations of a formally titled director. Avoiding the term ‘director’ doesn’t remove the duties and liabilities from an individual.”

There are a number of general statutory duties placed on directors by the law which Windatt outlines.

“Firstly,” he says, “directors must act within their powers – that is, comply with the company’s constitution and exercise powers only for the reasons they were given.” Windatt explains that directors must critically act in a way they consider is most likely to promote the success of the company for the benefit of its members: “To do this they must have regard to all relevant matters, which the law specifically says involves ‘considering the likely consequences of any decision in the long term; the interests of the company’s employees; the need to foster the company’s business relationships with suppliers, customers and others, as well as the impact of the company’s operations on the community and the environment; and the desirability of the company maintaining a reputation for high standard business conduct; and the need to act fairly as between members of the company.’”

But there are other obligations to note: Directors must exercise independent judgment, that is, not be swayed by others, and must also exercise reasonable care, skill and diligence. This is key for Windatt – he says directors must be diligent, careful and well informed about the company’s affairs: “If a director has particular knowledge, skill or experience relevant to his function (for instance, they are a qualified accountant and act as a finance director), they will be judged accordingly.”

Another duty to note is the need to avoid conflicts between director’s interests and those of the company. This means not accepting benefits from third parties unless the company authorises acceptance, while declaring any interest in a proposed transaction or arrangement before it is entered into.

A final duty is close to Windatt’s own professional interests. Directors should consider or act in the interests of creditors (particularly if insolvency is a possibility) while maintaining confidentiality of the company’s affairs.

WHEN THINGS GO WRONG – DISQUALIFICATION

Of course, many businesses are well run and outlive their founders. However, when a business fails “the Insolvency Service will,” says Windatt, “examine the failure and if the director and his actions have been found wanting, can seek the disqualification of the director(s).”

He offers a note of advice to directors: “To protect their position and to comply with the law, directors should ensure their companies maintain and preserve proper accounting records and should submit them to the relevant authorities upon insolvency.” He frequently sees directors investigated by the Insolvency Service with a view to taking action against them, and says: “Any director that’s been disqualified will no longer be able to act as a director of a company; take part, directly or indirectly, in the promotion, formation or management of a company or limited liability partnership; or receive company’s property. For most, this is likely to have a significant impact on their future earnings, especially as they may be disqualified for up to 15 years.”

PENALTIES FOR BREACHING DISQUALIFICATION ORDERS
There will always be some who consider that they can ignore a disqualification order, but they risk severe punishment. In these circumstances, they face imprisonment for up to two years and/or a fine on conviction following indictment; or imprisonment for up to six months and/or a fine on summary conviction. And the threat isn’t idle – there have been convictions.

Interestingly, but not unsurprisingly, Windatt’s seen some directors who are disqualified, either under the CDDA or by virtue of being made bankrupt, have their spouse/partner or other close friend/relative “front” a business while they carry on running it from “behind the scenes”: “This frequent scenario unravels when the business fails. At this point the stooge quickly reveals what they were and who the real controller was.”

To conclude, companies can and do fail for any one of a number of reasons, most of which are unfortunate but not deliberate. But where a director has not acted in good faith or in accordance with their duties, they can expect their activities punished and their ability to earn a living curtailed.

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MAKING FAIR DISMISSALS

MAKING FAIR DISMISSALS

Deciding who makes the cut and telling those who haven’t is never easy. Here are a few tips to smooth the process

No employer likes to make employees redundant. Unfortunately, as the recent decision for 100 planned redundancies at the AA illustrates, and the announced Andrew Page branch closures might mean, sometimes difficult decisions do need to be made.

For the process to work properly, it is important that redundancy dismissals are handled sensitively and in accordance with the law. Any employer that fails to comply with its legal obligations during a redundancy situation could face complaints from employees and claims for compensation for unfair dismissal as a result.

WHAT IS A REDUNDANCY SITUATION?
In an employment law context, redundancy has a very specific meaning. To summarise, the statutory definition of redundancy identifies three sets of circumstances that amount to redundancy situations – a business closure; workplace closure; or reduced requirements of the business for employees to do work of a particular kind.

There is no mandatory procedure laid down by legislation in England and Wales for fairly dismissing an employee for redundancy reasons. Instead, employers must follow a fair procedure involving individual consultation. Dismissal decisions must be fair and reasonable. Case law has determined various principles of fairness that an employer should follow in order to reduce the risk of employees pursuing claims for unfair dismissal.

Generally, these principles require an employer to give employees early warning of the risk of dismissal; consult with employees (and the union if required); identify an appropriate “at risk” pool for redundancy; draw up and apply fair selection criteria; and give consideration to alternative employment.

CONSULTATIONS

First, an employer looking to make a number of employees redundant must check whether the obligation to engage in collective consultation exists. Where there is a proposal to make 20 or more employees at one site redundant within a 90-day period, the employer must engage in collective consultation with a trade union. If no trade union is recognised for that particular employer, then an employee representative will need to be elected, with whom the employer will need to consult. The employer will also need to notify the secretary of state of the number of planned redundancies.

Employers should seek specific advice in circumstances where multiple redundancies are planned as there are a number of obligations.

Even where a collective redundancy situation does not arise, consulting with the employee(s) at risk of redundancy is absolutely vital and will be central to the fairness (or otherwise) of the decision to dismiss. Consultation should be genuine and take place at a time when the employer can properly consider the employees views and suggestions – that is, before the final decision is made.

THE “AT RISK” POOL
Before selecting an employee or employees for redundancy, an employer must consider what the appropriate pool of employees for redundancy selection should be. Otherwise the dismissal is likely to be unfair.

There are no fixed rules about how the pool should be defined and, unless there is a collectively agreed or customary selection pool, an employer has a wide measure of flexibility here.

The question of how the pool should be defined is primarily a matter for the employer to determine and, provided an employer genuinely applies its mind to the choice of a pool, it will be difficult for an employee (or a tribunal) to challenge the choice.

Factors that are likely to be relevant to identifying a pool are the type of work is ceasing or diminishing; the extent to which employees are doing similar work (possibly even those at other locations); and the extent to which employees’ jobs are interchangeable within the workforce.

SELECTION CRITERIA AND SCORING
Once an employer has identified the employees in the at risk pool, it will need to apply selection criteria to determine those at risk of redundancy. To do this, employers will need to develop appropriate selection criteria. The criteria, which of course must be objective and fair, might want to look at things like disciplinary record, length of service and performance. Criteria which relate to protected characteristics such as age, disability, religion or sex must be ignored.

The employer will need to mark each of the potentially redundant employees according to the finalised selection criteria.

Different weighting can be given to different criteria. It can also be useful to ask different managers to independently score employees in the at risk pool in order to ensure objectivity.

ALTERNATIVES TO REDUNDANCY
In many cases, consultation between employer and an employee who is at risk of redundancy will be focused on finding an alternative to dismissal on redundancy grounds. Employers should be prepared to discuss the steps that it has taken, or has considered taking, to reduce the risk of (or number of) redundancies. This might include things like a recruitment freeze and terminating the engagements of agency workers before embarking on the redundancy process.

Equally, employers should provide details of any vacancies to employees who are at risk of redundancy in order to minimise the number of dismissals that might need to be made.

STATUTORY PAY
Lastly, when making redundancies, employers should bear in mind that employees are entitled to an SRP payment where they are dismissed by reason of redundancy and have at least two years continuous employment at the date of the dismissal. The calculation for this can found at: gov.uk/calculate-your-redundancy-pay

Managing a redundancy process to ensure fairness can be difficult. It is crucial that an employer carefully plans the process at its beginning and critically before consultation with employees begins. Getting it wrong can have a big impact – in addition to potentially facing unfair dismissal claims, a poorly planned redundancy process may end up alienating the workforce at a time when the employer requires everyone to be particularly focused on the job at hand and morale is low.

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THE RIGHT PART GOES BEHIND WHAT FITS

THE RIGHT PART GOES BEHIND WHAT FITS

The rules around replacement parts are complex, but worth getting your head around, writes BM Catalysts Commercial Director Mark Blinston.

While there might be more hot air than hard facts about emissions across the mainstream press about vehicle emissions, there can be no doubt that reducing toxic gas and restoring trust in the motor industry is the greatest problem faced by the trade at the moment.

Everything is geared towards reducing emissions and much of the emphasis seems to be pointed towards vehicles and how we can reduce the impact that they are having on air quality. You may be wondering what we can do about it in the aftermarket; but one thing we can do is making sure the right part is fitted to the right vehicle based on the emissions standard of the vehicle in question – the Euro level.

Vehicles and replacement emission control devices must meet specific standards for exhaust emissions before they can be offered for sale in the European Union. Emissions limits are commonly referred to as Euro standards or levels.

Emissions are measured using a standardised test cycle called the New European Driving Cycle (NEDC). The NEDC was last updated in 1997 and is gradually
being replaced by the World Light Test Procedure (WLTP), which is designed to better replicate real driving conditions. WLTP is now being applied to new vehicles (types) but does not yet apply to replacement parts.

In order to test the durability of each part emission test results are most frequently multiplied by a deterioration factor; with the adjusted result then compared to the legislative limit. Deterioration factors are designed to simulate the likely change in performance of the part after it has aged with use over time. These deterioration factors have become more stringent over time, and so when coupled with the gradual lowering of limits it becomes considerably harder to achieve a pass when testing newer parts and newer vehicles. The largest increase in deterioration factors occurred between Euro four and Euro five.

In order to meet higher emission standards, it is frequently found that the OEM part is made to a higher specification than the lower EU level part it has superseded. Legislation requires a comparison of performance between a replacement part and its OE equivalent and so it naturally follows that tougher standards + higher deterioration factors + higher performing OE parts = a real need for a higher specification replacement part.

RIGHT LEVEL

The Euro level of each vehicle prescribed at the point at which that vehicle is Type Approved. A replacement part cannot be approved to a lower Euro level than that of the original vehicle; so if the vehicle is Euro five then the replacement must be approved to Euro five levels/limits. Testing and approving this part to Euro four would mean that it cannot be proven that it meets the relevant emissions standards and therefore cannot legally be fitted to any Euro five vehicle.

There are many catalytic converter and diesel particulate filter (DPF) references that appear to be physically identical but are, in fact, designed and approved for vehicles that carry different Euro levels. This is made possible as the internal specification of the part is largely the key to the emissions performance of the vehicle. For example, the Euro five version of the close-coupled cat for the Citroen C1 requires a specification that is more than 3 times that of the Euro four version of the part. A similar story is true of the Euro four/five Fiat five00 and Ford KA. Quite apart from it being illegal to fit the Euro four version to a Euro five vehicle, it will cause poor emissions performance with a much higher chance of related vehicle issues and potential part warranty returns. It can be easy to source the cheapest product which isn’t necessarily approved to the correct Euro level – the consequence of which is then a part that will actually not perform to the standards required.

CATALOGUE
The correct cataloguing of aftermarket parts is complex and challenging and many consumers will not be aware of the Euro level of their vehicle. It is therefore down to the garage and parts distributor to ensure that the part that is being sourced is approved for sale to the correct Euro level of the vehicle in question. This is something that has recently been identified as a “problem” in the aftermarket whereby parts can be physically the same, catalogued with the same start and close dates yet be very different both in terms of the internals and what they are legally approved for sale to fit.

In an effort to reduce the number of occasions that the incorrect part is being supplied and fitted to the vehicle, MAM (Autocat) will shortly be introducing the Euro level as a search criteria when identifying the correct part for a particular vehicle. Manufacturers of catalysts and DPFs will be asked to submit the Euro level for which their part has been homologated to enable an accurate match upon lookup. This is a positive step that the aftermarket is taking to reduce vehicle emissions.

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ELECTRIC VEHICLES VS THE AFTERMARKET

ELECTRIC VEHICLES VS THE AFTERMARKET

What challenges does the lubricant industry face? With impending bans on traditional vehicles and increasing market share of EVs

At the end of last year, the UK media reported a sixth month consecutive decline in sales of diesel cars. UK Government’s uncertainty about how to treat vehicles once classed as ‘the green option’ has led to consumer caution about buying cars that might be subject to higher taxation in future.

In July 2017, the UK Government declared that from 2040, sale of motor vehicles powered with internal combustion engines, petrol or diesel, would be banned. This followed similar announcements made by the French Government earlier that year. Even Original Equipment Manufacturers (OEMs) followed suit with Volvo and more recently Jaguar Land-Rover announcing the end of petrol and diesel car sales from 2019 and 2020 respectively.

The impact on the automotive sector, its fuel and lubricant sales, as electric vehicle sales increase cannot be underestimated.

Barclays’ analysts reported that if electric cars with greater efficiency increased to one third of the current automotive sector, this would cut global oil consumption by 3.5 million barrels a day by 2025. This is roughly the equivalent of Iran’s current supply of oil at 3.8 million barrels a day that is the Organisation of Exporting Petroleum Countries (OPEC)‘s third largest member.

Globally, demand for oil is still growing. In their 2017 outlook OPEC signalled that the medium-term demand for oil for the period 2016–2022 would increase by 6.9 million barrels a day, rising from 95.4 million barrels in 2016 to around 102.3 million barrels a day by 2022. Developing countries are expected to account for the majority of this increase, with demand expected to increase here by 43.2 million barrels a day in 2016 to 49.6 million barrels a day by 2022.

A cut in automotive demand for oil would effectively wipe out half the expected increase in global oil demand by 2022. But globally, the demand for oil would still increase.

Transportation is expected to remain the largest consumer of oil products, both fuel and lubricants, well into 2040. Much of the sector faces weak competition from alternate sources of fuel and lubricants although improved efficiencies, the rise of hybrid or electric vehicles and a tightening of energy policies will help to decelerate increases in the demand for oil from this sector.

WHAT IS ALLOWED?
Details of the French and UK Governments’ decision to ban conventional internal combustion engine vehicles is still vague. Will hybrid vehicles still be allowed? What about heavy goods vehicles or diesel powered public vehicles such as taxis? Some analysts believe that Governments might have kicked an emissions issue aligned to poor air quality into the long grass. The UK faced with the prospect of fines by the European Union over the quality of its air in cities, needed to be seen to be doing something positive about the issue.

Today’s vehicles are cleaner and leaner than those of ten or twenty years ago. Exhaust after treatment devices, both catalytic converters and diesel particulate filters, have removed many post-combustion harmful gases. Car scrappage schemes promoted by both Government and car manufacturers have incentivised owners to replace ageing vehicles with more modern cars. Changes to car taxation duties reward cars with lower emissions.

Electric cars might not be the panacea for everyone. Limited battery range and the high cost of lithium power cells means that extended ranges between charges of 300 miles or more are not yet a reality. As local town run-arounds or shopper cars, electric vehicles provide a viable alternative to conventional vehicles for journeys typified by short local stops. For longer commuter journeys then electric vehicles alone do not currently provide a realistic solution in the absence of a national and comprehensive electric charging network.

Much needed investment in electric charging stations along major motorway routes and trunk roads still remains in short supply. The Petrol Retailers Association (PRA) gave evidence to UK Government’s Automated and Electric Vehicles Bill Committee in November arguing against proposals to mandate electric vehicle charge points in petrol stations and motorway service areas. Although subsidies exist for domestic installation, the Bill proposes that a larger commercial network of charging points would be paid for by fuel retailers who would, by implication, pass the charges back to motorists. Government would not fund such a scheme.

REQUIREMENTS
In terms of engine oil and lubrication requirements, hybrid vehicles act in a slightly different manner to more conventional vehicles. A distinguishing feature of hybrid electric vehicle is that the conventional engine switches off when the power available from the electrical cell exceeds that needed to propel the vehicle. This results in lower operating temperatures and higher stress during stop/start for the conventional engine, which could lead to increased sludge and varnish than that of conventional engines.

What of service intervals? In the UK, service intervals of 12,000 miles are usually expected by motorists. In America, some dealers are claiming that hybrid vehicles require oil changes every 5,000 miles or 10,000 miles if using a synthetic, more typical of conventional cars sold in that country. The move to lower viscosity oils could also confuse matters if a motorist has been used to using a 5w30 engine oil in their hybrid ten years ago and today the same, but newer, model of their much-loved car requires a lower viscosity lubricant of 0w20 or less.

For the aftermarket, although electric cars might prove a challenge today, a hybrid car is a more popular and obvious choice for motorists. They provide the assurance of extended ranges for longer journeys similar to that of conventional vehicles, with the benefit of lower emissions under town centre driving conditions.

Posted in CAT Know-How, Factor & Supplier News, Garage News, News, Retailer NewsComments (0)

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