Be Aware - May 2018
Are you ready for the General Data Protection Regulation: Recent Enforcement Action
As we are now only one month away from the implementation of the GDPR this month’s article continues to answer some of the questions being asked regarding the GDPR.
Two firms in West Yorkshire have been fined by the Information Commissioner’s Office (ICO) for calling people registered with the Telephone Preference Service (TPS).
Bradford-based Energy Saving Centre Ltd, which offers services such as replacement windows and doors and guttering, made seven million calls over a seven-month period without screening them against the TPS register. The ICO has fined the firm £250,000 because at least 34,000 of these calls were made to TPS subscribers.
In a separate case, Alex Goldthorpe, trading as Approved Green Energy Solutions, was fined £150,000 for making over 300,000 calls to TPS subscribers between April and July 2017.
It is against the law to call someone registered with the TPS unless that person has given their consent to receive calls from that company.
When commenting on the fines the ICO stated:
“We are committed to taking strong action against firms calling people registered with the TPS, as these fines show.”
As an indication of the degree of seriousness of this issue these fines are 20 times the fine presented to Honda for marketing without permission. No contact should be made to customers who have withdrawn their permission for marketing calls. As a minimum, all motor dealers should be screening their calls against the TPS and should also check their own records to see if they have been approached directly.
Royal Mail Group Ltd has been fined £12,000 by the Information Commissioner’s Office (ICO) after sending more than 300,000 nuisance emails.
In July 2017, the company sent emails to 327,014 people who had already opted out of receiving direct marketing. The emails outlined a price drop for parcels, but the company did not have the recipients’ consent to send them, and so broke the law.
The ICO launched an investigation after receiving a complaint from a member of the public, who had received a marketing email from Royal Mail despite having opted out.
During the investigation, Royal Mail claimed the emails were a service rather than marketing, informing customers of a price drop.
The Commissioner found that the emails sent constituted marketing and not simply a service message, therefore breaching regulation 22 of the Privacy and Electronic Communications Regulations (PECR).
Whilst it is clear that the ICO will take a broad view of marketing without consent, what is more interesting is that when compared with Nuisance calls to TPS Subscribers above, the ICO clearly fines at a much lower level. Whilst members should never send marketing information unless they can establish a clear lawful ground for doing so, where there is any uncertainty at all email marketing will carry a reduced risk.
Lastly as you are all aware the GDPR will be in force from 25 May 2018 and the ICO have started its final push for public awareness. If you have not already you should review their website at .
The ICO have compiled particular guidance for businesses with 10 or fewer employees which can be found .
The above is a very broad overview of one aspect of the GDPR. The legislation and guidance is still developing in the weeks in the run up to their implementation. This advice is general in nature and we will endeavor to keep you informed through regular articles and case studies.
Case law update: Breach of contract and affirmation
If an employee resigns in response to a fundamental breach of contract by the employer, then if they have over 2 years’ service, they can bring a claim of constructive unfair dismissal.
Over time there has developed a body of case law that says that the ‘implied term of trust and confidence’ between employer and an employee can be destroyed by a series of small breaches or unreasonable treatment by the employer which is calculated or likely to destroy that implied term and which does not have reasonable or proper cause. This then results in a “final straw”, i.e. in conduct which would not, on its own, have given an employee a claim, but when taken in context with the previous breaches, has destroyed the implied term.
It is also established law that in constructive unfair dismissal, an employee has to resign in response to the breach, and if there is anything which affirms the contract then he or she is said to have waived the breach and cannot then claim constructive unfair dismissal.
In a recent case at the Employment Appeal Tribunal (EAT) (Pets at Home Ltd vs MacKenzie) a manager who was passed over for promotion on two separate occasions, whilst pregnant and whilst on maternity leave, resigned when she later learnt that another assistant manager (who the Claimant had previously managed) had been promoted, or rather claimed he had. The manager resigned claiming constructive unfair dismissal (amongst other claims) relying on her colleague’s promotion as the final straw.
Although she succeeded at a Tribunal, the EAT reiterated that on the facts, the case must fail. The Tribunal had erred because it did not consider whether the earlier alleged breaches of contract had been affirmed by the Claimant. The EAT reiterated that the Claimant had a choice whether to accept the breach (being passed over for promotion) and resign at the time of those acts. She did not do so and therefore had affirmed the contract. She could not then rely upon the colleague’s promotion as the final straw.
The case is good news for employers and reminds Tribunals to consider each alleged breach of contract and consider whether the employee’s acts afterwards are an affirmation.
This advice is general in nature and it 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, call 0845 305 4230 at any stage for advice and assistance as appropriate.