Car Park Chronicles
Mr Fraser suffered an apparent blow, when he enquired about the renewal of his car park pass earlier this year. He was informed that Amey was still willing to provide him with car parking facilities at his home station of Kettering, but that the manner in which they were provided had changed. Previously, the car park pass had been provided on an annual basis but when Amey enquired upon the matter, they were informed that long term car park tickets of a month or more could only be purchased by season ticket holders. So this left Amey with little choice but to tell him to purchase the ticket on a daily basis and that they would reimburse him.
Last year, the cost of an annual car park pass was £550, this year it has shot up to £834 a year. A ticket for a day costs £7.50p, so purchasing it on a daily basis is ultimately far more expensive to the company at the end of the day.
Another wrinkle is that while hes been very fortunately in getting these facilities provided for a number of years, hes been doubly fortunate in that none of the companies to date have ever made him pay the tax. The company are under absolutely no obligation to pay the tax, they chose to pay it at their discretion, the inland revenue's view is it is a benefit in kind and if the company does not pay it then he employee does, simple as that.
What are the fact's?
Is there anything in the way of mention of car park provision within his T and C's?
Answer: No!
So its a matter of discretion on the part of the company as to whether such facilities are provided. The law states that a company is under no obligation what so ever to provided car parking to employees, if it does, then this facility is classed as a benefit in kind and taxable as such. If a company chooses to pay that tax due themselves, it is a matter for their discretion. They are not obliged to.
How did they come to be provided in the first place?
When he worked for Jarvis Rail, he and another had problems with parking. The matter was raised with local management, and after some deliberation the company at their discretion provided car park facilities in the form of an annual car park pass. Because it was provided by them on a discretionary basis, it couldn't be interpreted as forming part of his T and C's by custom and practice, anything provided on a discretionary basis can never be custom and practice. The only other way is by a collective agreement, no such agreement exists.
Upon TUPE transfer to Grant Rail and subsequent TUPE transfer to Amey, both companies at their discretion decided to continue with the provision of car park facilities.
What do his T and C's say on the matter of purchasing the car park tickets on a daily basis?
His terms and conditions state that all expenses that are reasonably incurred in the course of his duties, can be claimed back through expenses. This does cover a multitude of items, train tickets, taxis, car parking, meals, just to name a few. The fact that not all previous companies rigidly enforced this item doesn't mean that not paying is an option for him. Claiming that he has never had to pay before is of no relevance, companies overlooked this matter at their discretion, and as such it cannot claimed ever to be custom and practice. Also there is the second problem in that custom and practice cannot supplant the express terms of ones terms and conditions, express terms being what is written down in black and white in the collective agreement. So what ever way you look at it, there is absolutely no grounds upon which he can claim that provision of car park facilities, or not having to pay first and claim it back are part of his terms and conditions. To claim so would be untrue!
Problem for him!
It can never be claim to be custom and practice, because its provided on a discretionary basis in the first place. This prevents it from ever becoming custom and practice, also the one item he might have thought would reasonably be classed as custom and practice is dead in the water because it cannot overrule and express term.
He would not want the union to seek a collective agreement on the subject, because I cant see how they would want a agreement that didn't apply to everyone within the company. And I know equally that a lot of members would benefit from such facilities, and would fell a bit aggrieved if they knew someone was getting it and they were being denied it themselves.
He basically want to keep getting it provided, but doesn't want to incur any of the downsides. Doesn't matter it others incur them as long as its not him.
