IGA News

Be Aware - September 2018

Be Aware - September 2018

31 August 2018

Consumer supplied parts

Motortraders are regularly asked by vehicle owners to fit parts they have not supplied. Should a motortrader fit parts they have not supplied and if so what are the legal ramifications?

Who is liable for any parts fitted?

When fitting any parts, the Consumer Rights Act 2015 require these parts to be fitted as agreed

  • with reasonable care and skill
  • in a reasonable time if no specific time agreed
  • for a reasonable charge if no price was set in advance.

Where the garage also supplies the parts they are under an additional duty as the Consumer Rights Act 2015 will hold the motortrader liable for the parts as well as the fitting. Any parts must be:

  • of satisfactory quality
  • fit for purpose
  • match any description given.

Should a repair fail then the motortrader will be liable to repair or replace the parts concerned if the parts are faulty or if they have been fitted incorrectly.

Parts supplied by the owner of the car

The difficulty with owner supplied parts is establishing the reason for the failure. If the failure cannot be easily diagnosed there is a risk of liability by default as by definition the garage will be intimately linked to the failure.

Where a part is supplied by the owner the garage is not liable for the part; only the fitting and any diagnosis carried out. Should the part prove to be incorrect, or faulty then this is an issue for the owner themselves.

The garage will remain under a duty to diagnose any fault and fit any parts correctly. This will include exercising a reasonable level of care and skill. If the part is obviously wrong or inappropriate, then this will need to be brought to the owner’s attention and specific instructions sought.

Conversely, where a garage supplies and fits any parts the likelihood of the garage being liable for any failure increases as the garage is also liable for the part itself. The difference s that a parts failure is usually covered by a supplier’s warranty allowing the garage to seek a contribution or indemnity from their supplier. The quality of parts as well as the ease of dealing with any issues can be a major consideration for most motortrader when choosing a parts supplier.

There are a number of things that need to be considered. 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 at any stage for advice and assistance as appropriate.

Pre-termination negotiations

“I have an employee whose attitude and performance is poor. Rather than taking the employee through a capability procedure can I explore with the employee whether he/she would be open to mutually agreed termination by agreeing a settlement package with them? Is it safe for me to initiate settlement discussions with the employee in this instance?”

Section 111A of the Employment Rights Act 1996 provides that any evidence of pre-termination negotiations is inadmissible as evidence before a Tribunal in any unfair dismissal claim. These discussions are often described as ‘protected conversations’.

For example, you may offer a settlement agreement to an employee who has been the subject of previous disciplinary proceedings and whose behaviour has not improved. When the employee receives the offer he/she may immediately resign and seek to claim unfair constructive dismissal on the basis that the offer breached the implied term of mutual trust and confidence. If S111A applies the employee will not be able to refer to the discussion in which the offer was made before the Tribunal.

S111A protection only applies where the employee is complaining of ‘ordinary’ unfair dismissal. The protection of S111A does not apply to claims for automatic unfair dismissal e.g. where an employee alleges that dismissal occurred for a reason relating to their pregnancy or trade union membership. In addition, there is no S111A protection for any other claim e.g. breach of contract or discrimination.

ACAS have published a helpful guide on settlement agreements including template letters that can be used to initiate settlement discussions under S111A:

www.acas.org.uk/media/pdf/o/a/Settlement_agreements_(the_Acas_Guide)JULY2013.pdf

The protection in S111A will not apply to its full extent where there is some improper behaviour on the part of the employer or the employee in relation to the settlement negotiations. This includes harassment, bullying and intimidation, including the use of offensive words or aggressive behaviour, criminal behaviour e.g. threat of physical assault, victimisation, discrimination and putting undue pressure on a party (e.g. not giving an employee a reasonable period of time to consider any proposed settlement offer, an employer saying before any form of disciplinary process has commenced that the employee will be dismissed if he/she rejects a settlement proposal, or an employee threatening to undermine an organisation’s public reputation if it does not sign a settlement agreement unless it is a whistleblowing case).

S111A supplements the ‘without prejudice’ rule which by contrast covers any type of claim and which provides that any discussion between an employee and employee entered into on a ‘without prejudice’ basis to settle an existing employment dispute cannot be disclosed in any subsequent legal proceedings.

If in doubt it is always recommended that you use the advice line and take employment law advice around any settlement discussions.

Right to participate in a remedy hearing

In Employment Tribunals, as with most litigation, hearings are generally split into liability hearings and (but only if the Claimant wins) a remedy hearing to consider how much compensation should be awarded. In Employment Tribunals it has been a little unclear as to whether a Respondent who has been debarred from participating in the liability hearing (for example because they did not file a Defence in time) should also be prevented from submitting any evidence on remedy.

In Office Equipment Systems Limited v Hughes the Court of Appeal has now clarified the matter. The Court found that a Respondent employer who failed to enter a Response (Defence) to an Employment Tribunal claim and whom the Tribunal had excluded from the liability hearing should not also have been excluded from the remedy hearing.

It went on to state that, where the question of remedy is sufficiently substantial/complex to require a separate remedy assessment, it is only in exceptional circumstances that the Respondent should be excluded from the remedy hearing and putting forward evidence on loss.

The case is therefore a welcome case for employers who, if they have (for whatever reason) been unable to defend the case on liability can nevertheless put forward representations in evidence on remedy. This also means that where the interests of justice mean that the employee should not be awarded much money (perhaps because, although there is some technical fault by the employer, the conduct or behaviour of the employee was particularly bad) such evidence may still be adduced, to try to keep compensation to a minimum.

Conclusion

Don’t forget, all of the advice above 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, call 0845 305 4230 at any stage for advice and assistance as appropriate.