Be Aware – October 2022

Customer Supplied Parts

“A customer has asked me to fit parts that he has supplied. I told him at the time that I was not responsible if they failed but there is now a problem, and he is saying it is my fault.”

Whilst it can be common for customers to supply parts, when things go wrong it can be difficult to untangle who is liable for what.

Where your client is a consumer, you cannot avoid the statutory liability for either the service you provide, or the parts supplied. Any parts must be of a satisfactory quality taking into consideration common issues such as your description and the price paid. Any diagnostic work, advice and fitting of parts must be carried out with a reasonable level of care and skill. A failure on any of these issues will result in you being liable for any losses reasonably sustained.

As you have not supplied the part then if the part has failed the starting point should be that there is no liability. If it has failed due to the fitting, then you are liable and establishing which can be difficult.

To make matters easy you need to ensure that the customer is clearly advised that you are not warranting the part before the work commences and that you clearly explain what will happen if the part fails. Ideally this should be clearly marked on any invoice.

Any failure should be investigated. You can require the customer to prove what has happened. However, you should consider whether you will be happy to accept anyone else’s opinion. Where appropriate consider whether an independent engineer should be used.

If you cannot agree who is liable, consider referring the matter to the National Conciliation Service. This is a free and independent dispute resolution service provided to RMI members and their customers. They can be contacted on 01788 538317 and more details can be found on the RMI website at http://www.rmif.co.uk/consumers/why-use-an-rmi-member/

Halfords fined for sending nearly 500,000 unwanted marketing emails

The Information Commissioner’s Office (ICO) has fined Halfords Limited £30,000 for sending 498,179 unsolicited marketing emails to people without their consent.

Halfords came to the attention of the ICO following complaints in relation to a direct marketing email about a “Fix Your Bike” government voucher scheme. The scheme allowed people to use a voucher worth up to £50 towards the cost of repairing a bicycle in any approved retailers or mechanics in England. Halfords sent an email notifying customer of the scheme. However, Halfords’ marketing email encouraged people to book a free bike assessment and to redeem the voucher at their chosen Halfords store.

The ICO investigation found that Halfords’ email message clearly advertised a service provided by the company, and that Halfords could not rely on ‘legitimate interest’ to send the marketing email, as claimed by the company.

According to electronic marketing rules, legitimate interest cannot be used as an alternative to consent when sending electronic marketing messages. The soft opt-in exemption, however, allows organisations to send electronic marketing messages to customers whose details have been obtained during the course of a sale or negotiations for similar services, but it must offer a simple way for people to opt out.

The ICO ruled that Halfords could not rely on the soft opt-in exemption for customers that received the email, as they had already not opted in to receive emails from the company.

Head of Investigations, Andy Curry said:

“It is against the law to send marketing emails or texts to people without their permission. Not only this, but it is also a violation of their privacy rights as well as being frustrating and downright annoying.”

Commenting on the fine, a Halfords spokesperson said:

“We are very surprised at this decision. The email was sent as part of a collaboration with the Department for Transport (DfT) and the Energy Saving Trust. Its principal purpose was to alert people to DfT’s Fix Your Bike voucher scheme and inform them on how to redeem the vouchers. We understand that only one individual complained. We believed at the time – and continue to believe – that the email complied with the rules.

In Conclusion

We have been living with the GDPR for some years now and there will be an inherent tension between the legitimate interests of business to market their services as the interests of data subjects.

There is always a very fine line between a notification email, i.e., an MOT reminder, and a marketing email, i.e., sending a reminder and including a discounted voucher for your MOT and Servicing. On this occasion Halfords have fallen on the wrong side of the line and were unfortunate not to be able to rely on the soft opt-in. This is a timely reminder that any communication with customers or potential customers require constant review to ensure that the correct balance is met.

Stolen Vehicles

“I took a car in part exchange, now the police have contacted me and told me the car was stolen and have seized the vehicle. What can I do?”

You first need to know more about the allegations, particularly, was the vehicle taken without the permission of the owner or did the owner intend to sell the vehicle but were mistaken or mislead as to who the purchaser was.

Is the vehicle stolen?

Where a vehicle is taken without the permission of the owner then the thief will have no legal title to the vehicle despite having possession of it. With a few exceptions you cannot receive a better title than the person selling you the vehicle. Therefore, you have no title to the vehicle and will lose it. If you have already sold the vehicle you will have to reimburse the buyer any funds paid, and you will be liable to compensation for any losses.

Did the previous owner intend to sell the vehicle?

Fraud is something different. Where the owner of a car intends to sell a vehicle and pass legal title, but the payment details used are fraudulent then title to the vehicle will pass to the ‘fraudster’ unless and until the true owner takes steps to cancel the contract, e.g., by reporting it to the police etc. If you buy the vehicle during this period for a fair price and without knowledge of any fraud, then you will gain legal title to the vehicle even after the fraud is discovered. You will not have to return the car. You will also pass title to any subsequent owner should you have sold it.

The best option remains to avoid the situation where possible. If the vehicle has recently changed owners, you should satisfy yourself why it is now being sold. Sufficient identification details should be kept so that you can satisfy yourself of the identity of the person selling the car, their address and that this corresponds to the banking details and the registered owner’s details.

Conclusion

It is always difficult when cars are stolen. Who ends up with the vehicle is heavily dependent on the facts of each case. The legal situation can be complex, and any advice will need to be tailored to any one particular situation. In the event you do get caught out, as an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance that can help to simplify the problem.

Holiday Pay claim time limits

“An employee has requested backdated holiday pay as he feels that we have calculated his holiday pay incorrectly.  What criteria do employees have to meet to claim backdated holiday pay and does the three-month rule apply?”

Claims for underpayment of holiday pay are most commonly brought as an unlawful deduction from wages claim (Section 13 Employment Rights Act 1996 (ERA 1996)). A claim for unlawful deductions from wages can be brought in relation to a ‘one off’ failure to pay holiday pay or an ongoing failure to pay holiday pay amounting to a ‘series of deductions’. The period within which a claim for unlawful deductions can be brought is three months from the deduction (Section 23(2) ERA 1996) or three months from the last in a series of deductions.

The Deductions from Wages (Limitation) Regulations 2014 (SI 2014/3322) introduced a two-year backstop on the period over which a worker can claim a series of unlawful deductions from wages.

In Bear Scotland v Fulton [2015] IRLR 15, the Employment Appeal Tribunal held that a gap of more than three months between underpayments effectively breaks the series of deductions, meaning that the employee cannot claim for deductions before the three-month gap. However, in Chief Constable of the Police Service of Northern Ireland and another v Agnew [2019] IRLR 782, the Northern Irish Court of Appeal held that a gap of more than three months did not necessarily limit the back payment claims. That case does not stand as direct authority in cases in England and Wales, but in obiter comments, Lady Justice Simler in the Court of Appeal in Smith v Pimlico Plumbers [2022] IRLR 347, gave a ‘strong provisional view’ that Agnew is correct in its interpretation of a series of unlawful deductions from wages.

The position of what amounts to a ‘series of deductions’ therefore remains unclear; however, Agnew is due to be heard in the Supreme Court in December 2022 and the issue of what amounts to a series of unlawful deductions is likely to be dealt with then.

In Conclusion

Whilst there is some uncertainty around time limits pending the outcome of the Agnew Supreme Court hearing in December 2022, it would appear that there is some consensus in legal circles that if there is a gap of more than 3 months in the series of deductions then it does not necessarily limit any back payment claims.

General Note

Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us in 01788 225 908 at any stage for advice and assistance as appropriate.