IGA News

Be Aware - September 2021

Be Aware - September 2021

31 August 2021

Vehicle Repair Faults

“I have recently replaced a vehicle’s brake discs as part of a service, but the customer is still having problems braking and it now needs new callipers. The customer is telling me that I must do it for free as I did not repair his vehicle.”

It is not uncommon that Consumers will expect a repair to fix the entire problem, and generally speaking they are likely to be right. As always though reality is a bit more complicated.

The first thing we need to consider is why the additional work is required and what you were asked to do. If the work is required because you have fitted the brake discs incorrectly then you will be liable for the repair work that flows from what you have done wrong.

If the customer asked you to replace his brake discs, then provided you have done the work correctly and with a reasonable level of care and skill you are not in breach of the contract. You did not diagnose the work required or recommend the work and as such there is no liability to do any work at all, even if the brake callipers do need replacing.

It gets more difficulty where you have been asked to diagnose the fault; or where the issue is obviously not the brake discs, and you did not draw this to the consumer’s attention. In addition to doing the work as agreed and with a reasonable level of care and skill, you also have a duty to diagnose any faults with a reasonable level of care and skill. This does not mean you must be right first time every time. Where a repair or diagnosis would follow a logical and reasonable step then the fact that you have followed that process and the issue is more complicated, then there is not a breach of contract: You’re not responsible for the state of the vehicle.

Taking the above example. The brakes may be fading for many reasons. If there is no evidence of a faulty calliper, the brake pads were still serviceable, and the discs appeared pitted and worn then a reasonable mechanic would not incur the significant cost of replacing callipers. Where it then turns out that the callipers were the cause of the fault, or even part of the cause then whilst more work is required this is not because of any wrongdoing on your part.

Conclusion

Repairing and diagnosing a vehicle is one of the riskier activities a garage can undertake. However, provided you accurately inform and advise your client, and keep a record of the same, you should be able to deal with most complaints.

The Information Commissioner; Registration and the Data Protection Fee

“I have recently received a number of letters from the ‘Information Commissioner/ICO’ telling me I need to pay a ’Data Protection Fee’. I have never heard of them before. Is this a scam?”

We cannot say whether the letter you have received is or is not real. If you are at all concerned, we would strongly advise caution. That said, the Information Commissioner or ICO is a legitimate organisation, and it is likely that a fee is due.

Who are the ICO?

The ICO is the UK’s independent body responsible for upholding information rights and data protection. Their main responsibility is the Data Protection Act 2018, but they are also responsible for the Freedom of Information Act 2000, the Network and Information Systems Regulations 2018, the Electronic Identification and Trust Services Regulations, and Investigatory Powers Act 2016.

They have become more well known in the last few years as a result of the GDPR and the overhaul of data protection legislation in the UK.

Do I have to pay a fee, and if so, why?

The ICO is funded, at least in part, by a levy placed on data processors. Under the Data Protection Act 2018, organisations processing personal data must pay a data protection fee, unless they are exempt. As personal data includes people’s names, addresses or telephone numbers, where you hold customer data for billing purposes etc… it is likely that you will be required to pay a fee.

The ICO have provided a handy tool on their website in order to help businesses assess whether they are required to register with the ICO as a data processor and if so whether they are liable to pay a fee. This can be found at:

https://ico.org.uk/for-organisations/data-protection-fee/self-assessment/

Conclusion

In conclusion, it is highly likely that this is a genuine letter and that you are required to be both registered and that you are liable for a fee. In fact, it’s likely that you have been for some time.

Whether you have received a letter or not, we would advise all members to go to the ICO website address above and take 45 minutes to go through the assessment. If you are required to register and pay a fee you will then be referred to the appropriate next steps.

Employee entitlement to compensation for career-long loss due to significant discrimination

In Secretary of State for Justice v Plaistow (2021), the Employment Appeal Tribunal has upheld the decision of a tribunal to award career-long losses for sexual orientation discrimination and harassment.

The Claimant worked as a prison officer at HMP Woodhill. He was the subject of enquires as to his sexuality, including from his line manager, who would refer to him as a “poof”. He was subjected to physical abuse which included a prison officer pointing a finger into his face and slapping him; he was screamed at; water was squirted at him; and on one occasion his work bag was coloured pink, and a ‘fairy’ cake was smeared inside it. He wrote to his MP and raised a number of grievances in relation to how he was being treated, but they were not investigated. Instead, he was then victimised, and ultimately, unfairly dismissed.

It was agreed that as a result of the discrimination, the Claimant was suffering from PTSD, anxiety, paranoia, and sleep disturbance; he found it difficult to leave the house, interact with other people, and attend to his personal care. The medical experts disagreed however as to the Claimant’s prognosis. The Claimant’s expert took the view that his prospects of recovery were poor, and so his mental impairments were likely to be permanent. His employer’s expert, however, considered that there was insufficient evidence to say that the Claimant would not make a recovery at some point, such that he could return to some form of employment in the future.

The tribunal considered that even if the Claimant could return to work at some point, which was an “extremely remote” possibility, he “would need to undergo a lengthy period of training and/or rehabilitation into any workplace and he would be very substantially disadvantaged in the labour market when seeking employment after what would be a very lengthy absence from work with significant mental health issues”. In the circumstances – and after having considered it likely that “the Claimant would have remained in work up to retirement age” – the tribunal concluded that “this is one of those rare cases where it is appropriate to consider the Claimant’s future losses on the basis of a career long basis”.

The EAT held the tribunal was entitled to find that the Claimant had suffered permanent damage to his career and was thus entitled to be compensated accordingly. It did find, however, that in applying a discount of 5% to account for the possibility of the Claimant having left his employment early or returning to work at some point in the future – the tribunal failed to consider the more general uncertainties of life which might have cut the Claimant’s career short, such as the possibility of disability or early death. The EAT therefore allowed this part of the employer’s appeal and sent the case back to the tribunal to give due consideration to the question of discount.

In Conclusion

It is rare that compensation for loss of earnings will reach the £2 million region, as the tribunal found to be the Claimant’s loss in this case. Awards for financial loss tend to be more modest, to reflect a reasonable period that a claimant is out of work due to the discrimination that they were subjected to.

Nevertheless, this case highlights that there is no cap on the amount which a tribunal can award, and, that there are circumstances where awards can be made, to reflect financial loss, for the remainder of an employee’s working life.

Supreme Court confirms that burden of proof begins with Claimant in discrimination claims

The Supreme Court in Royal Mail Group v Efobi (2021) has confirmed that the burden of disproving an allegation of discrimination does not shift to the employer, unless the Claimant has first established a prima facie case.

The Claimant identifies as a black African and Nigerian. He worked as a postman for Royal Mail. He wanted a more managerial role so that he could put his qualifications to use. He submitted over 30 applications for such roles with his employer over a number of years, but none were successful. He brought a claim to the employment tribunal on the basis that the rejection of his applications was as a result of race discrimination. His claim was dismissed by the tribunal. The Employment Appeal Tribunal upheld his appeal. The EAT held that the tribunal had been wrong to interpret section 136 of the Equality Act 2010 as imposing on the Claimant an initial burden of proof.

Section 136 of the Equality Act 2010, which deals with the burden of proof in discrimination claims, imposes a two-stage test. In respect of stage one, the relevant wording is “if there are facts from which the court could decide.” However, this wording had changed from the older provisions in the Race Relations Act 1976 (which the Equality Act 2010 replaced) where the wording was “where the complainant proves facts.” On this basis, the Claimant argued that that there was no longer a requirement on him to prove facts at the initial stage, but rather, the position was now neutral, and that it was simply for the tribunal to determine ‘if there are facts.’

The Court of Appeal reversed the EAT’s decision, finding that the tribunal did not make any error of law. The Supreme Court agreed and dismissed the Claimant’s appeal. The Supreme Court held that the change of wording under the Equality Act did not change the law, and that the burden of proving his or her case begins with the Claimant. Once sufficient facts have been established by the Claimant pointing to discrimination, and in the absence of any other explanation, the burden then shifts to the employer to disprove the allegation. The Court held that the change of wording was simply to make clear that the tribunal is required to consider all of the evidence at the first stage, and not simply that adduced by the Claimant.

During the employment tribunal hearing, Royal Mail did not call evidence from any of the actual decision makers who determined that the Claimant’s applications were unsuccessful, in circumstances where his race was stated on his application forms. On this basis, the Claimant also argued that the tribunal failed in its duty to draw adverse inferences. However, the Supreme Court held that tribunals have a wide discretion as to whether to draw, or not to draw, adverse inferences, and that it was not unreasonable for adverse inferences not to have been drawn on the facts of this case. It stated that: “there can be no reasonable expectation that a respondent will call someone as a witness in case that person is able to recall information that could potentially advance the claimant’s case.”

In addition, even if adverse inferences had been drawn, on the basis that the recruiters (who were not called to give evidence) were aware of the Claimant’s race, it was held that this would not, without more, have been sufficient to establish a prima facie case of discrimination.

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 on 01788 225 908 at any stage for advice and assistance as appropriate.