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THE GDPR LOWDOWN

THE GDPR LOWDOWN

In part two of our GDPR guide, Hayley Pells explains how practical steps will help you be ready.

It hasn’t been a good month for the public’s perception of how companies use their data. You may have noticed that during the coverage of Facebook and Cambridge Analytica on TV that Elizabeth Denham, the UK’s Information Commissioner, would pop up to reassure the public that steps were being taken to regulate how their data was used and stored by companies, which was of course a reference to GDPR. If there was any doubt about how seriously the country is going to take the new legislation, this will be a wake up call.

Last month, we explored the background of GDPR and how it is going to affect your business, this month, we are going to explore a step-by-step guide to show you how you can become legally compliant yourself. If you are unsure of the process there is still time to get some professional help. There are independent consultants all over the country and there are larger organisations who are able to roll out a fast to access service. The average garage owner can do this in-house for themselves, but if you are busy, it could be a more cost effective solution to outsource.

STEP 1
Awareness

Following on from last month’s article, you need to make sure all of your team know about the legislation. In my case, trying to explain it to my father who I work with (and is in his late sixties) is a hoot, but we got there. The key area to get across is the impact this compliance will have on the business and acknowledging the time and cost it will require to implement. Do you have a risk register? It could be useful to have one. Compliance can be difficult if the preparations are left to last minute, especially if you then plan to outsource.

STEP 2 – Current situation

What personal data do you hold about your clients and staff ? Do you really need it? This is a good opportunity to “clean house.” Dispose of the unrequired information responsibly, ensuring that the data is inaccessible at the point of disposal.
What you should be left with is the information that you need. What do you do with it? This is how compliance with the accountability principles of GDPR are achieved. You need to know what information you hold, where it is held and how it
is held. It must be held securely. When sharing data, this needs to be done responsibly. For example, does someone else process your payroll? Now is the time to check that the information you share is being done so in a responsible manner and that your service provider is up to speed with their obligations.

Having assessed your current situation it is a good idea to record it and then outline your strategy for improvement. This is a very similar process to how you would complete a risk assessment.

STEP 3 – Communicating
privacy information
Do you have a privacy notice? Currently, when you collect personal data you need to give people the following information;
– Who you are
– How do you intend to use their information

That information you have probably done without thinking, to continue with the payroll simili “I’m Fred Bloggs, I need your NI number to process your pay.” With the GDPR, this is expanded upon, now there are a couple of extra things you need to tell people;

– Your lawful basis for processing the data
– Data retention periods
– The individual’s right of complaint to the Information Commissioner’s Office

So for this I shall use the example of information that I gather for a MOT test. My lawful basis for collecting information about my client is that I have been tasked with performing a MOT test on their vehicle. I keep this data for one year and the ICO’s website can be found at ico.org.uk – they are the Information Commissioner’s Office, the UK’s independent body set up to uphold information rights in the public interest. The GDPR requires that plain language is used, every step should be as clear and concise as possible.

STEP 4 – Individual’s rights

You should check and record your procedures to ensure they cover the following rights of the individual, include how you would erase personal data or provide personal data electronically in a commonly used format;
– The right to be informed
– The right of access
– The right to rectification
– The right to be forgotten
– The right to restrict processing n The right to data portability
– The right to object
– The right not to be subject to automated decision-making including profiling

Now bear with me, this all probably sounds like something completely new, but before spanners are thrown up into the year and “this modern euro nonsense is just taking over everything, I am but a simple mechanic” is hailed (or was that just my father?). Let us examine what this means practically. A lot of these rights are just basic common sense, you are probably employing them right now – the key areas that are significantly different are mainly within the right of portability, it only applies;

– To personal data an individual has provided to a controller
– Where processing is based on the individual’s consent or for the performance of a contract
– When processing is carried out by automated means With the Data Protection Act, you could, if you so wished, charge a fee for the provision of data to the individual, under the GDPR you cannot and the information provided by the ICO insist that it be provided in a structured commonly used and machine readable form.

STEP 5 – Access Requests
Step four outlined the right the individual has, step five now examines how those rights are handled. It is good practice to have this recorded and share it with everyone in your organisation.
– No charge for information requests
– Information to be given within a month (under the Data Protection Act, this was 40 days)
– You can refuse or charge for requests that are manifestly unfounded or excessive
– If you do refuse a request, you are legally obliged to tell the individual why and that they have the right to complain to the supervisory authority and to a judicial remedy. You must do without undue delay and at the latest, one month.

If you have a large organisation or you handle large numbers of information requests this may be a good time to assess the implications of dealing with requests quickly. It may be worth considering the desirability of systems that allow individuals to access their own information online.

STEP 6 – Lawful basis for processing personal data
As individuals now have a stronger right than under previous legislation to access their personal data in order to achieve compliance with the GDPR, you should document and share your lawful basis for the collection and processing of this data. This is especially important now individuals have the right to deletion of their personal data.

STEP 7 – Consent
Consent cannot be inferred by silence and must not be an “opt out” (no pre-ticked boxes or assumptions). This is quite a broad area and will be explored further next month with detailed guidance. Consent cannot be thrown in with your general terms and conditions as it must be freely given, specific, informed and unambiguous. In my opinion, post 25th May 2018, this is going to be the next big goldmine for all those companies that are currently benefiting from the PPI refunds, it will be an easy area to identify non- compliance if the correct procedures are not in place.

STEP 8 – Children
Before shoulders are shrugged that you don’t deal with children, first understand what is meant by the term “child”, although the consent given by children within this context tends to be more concerned with young children and internet related services such as social networking, it would be a good idea to consider how you handle apprentice’s (or any other employee or client who are under 18) information. Currently the GDPR sets the age at 16, this may be lowered to 13, being mindful of how this age limit may change and implementing into your policy documents for the younger people that you may deal with will be the best method to achieve compliance.

If your organisation does deal with children, you must remember that consent must come from someone with “parental responsibility” and has to be verifiable. Your privacy notice must be written in language that children can understand.

STEP 9 – Data Breaches
What to do if it all goes wrong? The legislation does consider that like locking the door to your home doesn’t stop thieves getting in, you may be subject to a data breach that, in under normal working circumstances, would not happen.

If you have a breach, determining the nature of the breach will direct your next course of action. You only need to notify the ICO if the breach is likely to risk the rights and freedoms of the individual, for example, if it could result in discrimination, damage to reputation, financial loss, loss of confidentiality or any other significant economic or social disadvantage. If this breach is likely to result in a high risk to the rights and freedoms of individuals, you will also have to notify them directly.

In order to achieve compliance with the GDPR you must have procedures in place that detect, report and investigate personal data breaches. Having a good clear out at step two will reduce the risk in this area.

STEP 10 – Data Protection by Design and Data Protection Impact Assessments
Remember when you had to uncheck a prefilled box to opt out of things online? Now you have to check it yourself, this is what that is about. The chances are, if you collect data in this way, this is something that you are already aware of and I am personally at a loss as to why you would have a need to process information in this way within the automotive aftermarket, but I am sure there is someone out there who could enlighten me!

STEP 11- Data Protection Officers If it is everyones’ job, nobody does it. Identifying a person responsible for data protection compliance is now a formal obligation in certain circumstances. You probably won’t be one of them, but it is still good practice to formally appoint someone to oversee your compliance, that person should take proper responsibility for your data protection compliance and has the knowledge, support and authority to carry out their role effectively.

STEP 12 – International
If you are lucky enough to deal internationally with your organisation you should determine your lead data protection supervisory authority and document this. The lead authority will be where your central administration is located but only relevant where you carry out cross-border processing. (This step doesn’t apply to my garage. Currently).

Hopefully, this article will be helpful in becoming compliant for yourself. The advantage in doing this yourself will enable your organisation to be familiar with the new legal responsibilities organisations have with respect to personal data. The next article will thoroughly examine the subject of consent and how it is applied in this context.

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COMPANY DIRECTORS UNDER THREAT

COMPANY DIRECTORS UNDER THREAT

Creditors must be taken care of as well as the business itself

Running a company and holding a directorship involves a number of duties and obligations. The law is very prescriptive about this, and for good reason. In exchange for limited liability and general immunity for company debts, directors must care for the success of the business and also, should insolvency loom, protect the position of creditors.

The authorities take a dim view of those that breach the law. Take the November 2017 case of Kieran Jon Fox, the sole director of Doncaster Auto Parts Limited. He was disqualified from being a company director for three years and six months for trading “to the detriment of HM Revenue and Customs” by failing to pay £94,999 in respect of PAYE, National Insurance and VAT – monies owed at the time of liquidation. HMRC’s analysis of Doncaster’s bank account showed that at least £505,877 was spent from the account between 7 June 2015 and 9 June 2016. Over the same period at least £95,687 was paid to him in respect of loans, wages and dividends and at least £373,537 was paid to other parties. Total liabilities to creditors at liquidation were £358,237.

DIRECTOR’S DUTIES
According to Peter Windatt, an accountant and licensed insolvency practitioner with BRI Business Recovery and
Insolvency, companies must have at least one director who is legally responsible for running the company and making sure its accounts and reports are properly prepared.

Directors must be at least 16 and not disqualified; while most have a director’s title, the law recognises what is termed a shadow director. “An individual in this situation,” says Windatt, “is without title but nevertheless acts as if they are a director. Consequently, the law assigns them the duties and obligations of a formally titled director. Avoiding the term ‘director’ doesn’t remove the duties and liabilities from an individual.”

There are a number of general statutory duties placed on directors by the law which Windatt outlines.

“Firstly,” he says, “directors must act within their powers – that is, comply with the company’s constitution and exercise powers only for the reasons they were given.” Windatt explains that directors must critically act in a way they consider is most likely to promote the success of the company for the benefit of its members: “To do this they must have regard to all relevant matters, which the law specifically says involves ‘considering the likely consequences of any decision in the long term; the interests of the company’s employees; the need to foster the company’s business relationships with suppliers, customers and others, as well as the impact of the company’s operations on the community and the environment; and the desirability of the company maintaining a reputation for high standard business conduct; and the need to act fairly as between members of the company.’”

But there are other obligations to note: Directors must exercise independent judgment, that is, not be swayed by others, and must also exercise reasonable care, skill and diligence. This is key for Windatt – he says directors must be diligent, careful and well informed about the company’s affairs: “If a director has particular knowledge, skill or experience relevant to his function (for instance, they are a qualified accountant and act as a finance director), they will be judged accordingly.”

Another duty to note is the need to avoid conflicts between director’s interests and those of the company. This means not accepting benefits from third parties unless the company authorises acceptance, while declaring any interest in a proposed transaction or arrangement before it is entered into.

A final duty is close to Windatt’s own professional interests. Directors should consider or act in the interests of creditors (particularly if insolvency is a possibility) while maintaining confidentiality of the company’s affairs.

WHEN THINGS GO WRONG – DISQUALIFICATION

Of course, many businesses are well run and outlive their founders. However, when a business fails “the Insolvency Service will,” says Windatt, “examine the failure and if the director and his actions have been found wanting, can seek the disqualification of the director(s).”

He offers a note of advice to directors: “To protect their position and to comply with the law, directors should ensure their companies maintain and preserve proper accounting records and should submit them to the relevant authorities upon insolvency.” He frequently sees directors investigated by the Insolvency Service with a view to taking action against them, and says: “Any director that’s been disqualified will no longer be able to act as a director of a company; take part, directly or indirectly, in the promotion, formation or management of a company or limited liability partnership; or receive company’s property. For most, this is likely to have a significant impact on their future earnings, especially as they may be disqualified for up to 15 years.”

PENALTIES FOR BREACHING DISQUALIFICATION ORDERS
There will always be some who consider that they can ignore a disqualification order, but they risk severe punishment. In these circumstances, they face imprisonment for up to two years and/or a fine on conviction following indictment; or imprisonment for up to six months and/or a fine on summary conviction. And the threat isn’t idle – there have been convictions.

Interestingly, but not unsurprisingly, Windatt’s seen some directors who are disqualified, either under the CDDA or by virtue of being made bankrupt, have their spouse/partner or other close friend/relative “front” a business while they carry on running it from “behind the scenes”: “This frequent scenario unravels when the business fails. At this point the stooge quickly reveals what they were and who the real controller was.”

To conclude, companies can and do fail for any one of a number of reasons, most of which are unfortunate but not deliberate. But where a director has not acted in good faith or in accordance with their duties, they can expect their activities punished and their ability to earn a living curtailed.

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MAKING FAIR DISMISSALS

MAKING FAIR DISMISSALS

Deciding who makes the cut and telling those who haven’t is never easy. Here are a few tips to smooth the process

No employer likes to make employees redundant. Unfortunately, as the recent decision for 100 planned redundancies at the AA illustrates, and the announced Andrew Page branch closures might mean, sometimes difficult decisions do need to be made.

For the process to work properly, it is important that redundancy dismissals are handled sensitively and in accordance with the law. Any employer that fails to comply with its legal obligations during a redundancy situation could face complaints from employees and claims for compensation for unfair dismissal as a result.

WHAT IS A REDUNDANCY SITUATION?
In an employment law context, redundancy has a very specific meaning. To summarise, the statutory definition of redundancy identifies three sets of circumstances that amount to redundancy situations – a business closure; workplace closure; or reduced requirements of the business for employees to do work of a particular kind.

There is no mandatory procedure laid down by legislation in England and Wales for fairly dismissing an employee for redundancy reasons. Instead, employers must follow a fair procedure involving individual consultation. Dismissal decisions must be fair and reasonable. Case law has determined various principles of fairness that an employer should follow in order to reduce the risk of employees pursuing claims for unfair dismissal.

Generally, these principles require an employer to give employees early warning of the risk of dismissal; consult with employees (and the union if required); identify an appropriate “at risk” pool for redundancy; draw up and apply fair selection criteria; and give consideration to alternative employment.

CONSULTATIONS

First, an employer looking to make a number of employees redundant must check whether the obligation to engage in collective consultation exists. Where there is a proposal to make 20 or more employees at one site redundant within a 90-day period, the employer must engage in collective consultation with a trade union. If no trade union is recognised for that particular employer, then an employee representative will need to be elected, with whom the employer will need to consult. The employer will also need to notify the secretary of state of the number of planned redundancies.

Employers should seek specific advice in circumstances where multiple redundancies are planned as there are a number of obligations.

Even where a collective redundancy situation does not arise, consulting with the employee(s) at risk of redundancy is absolutely vital and will be central to the fairness (or otherwise) of the decision to dismiss. Consultation should be genuine and take place at a time when the employer can properly consider the employees views and suggestions – that is, before the final decision is made.

THE “AT RISK” POOL
Before selecting an employee or employees for redundancy, an employer must consider what the appropriate pool of employees for redundancy selection should be. Otherwise the dismissal is likely to be unfair.

There are no fixed rules about how the pool should be defined and, unless there is a collectively agreed or customary selection pool, an employer has a wide measure of flexibility here.

The question of how the pool should be defined is primarily a matter for the employer to determine and, provided an employer genuinely applies its mind to the choice of a pool, it will be difficult for an employee (or a tribunal) to challenge the choice.

Factors that are likely to be relevant to identifying a pool are the type of work is ceasing or diminishing; the extent to which employees are doing similar work (possibly even those at other locations); and the extent to which employees’ jobs are interchangeable within the workforce.

SELECTION CRITERIA AND SCORING
Once an employer has identified the employees in the at risk pool, it will need to apply selection criteria to determine those at risk of redundancy. To do this, employers will need to develop appropriate selection criteria. The criteria, which of course must be objective and fair, might want to look at things like disciplinary record, length of service and performance. Criteria which relate to protected characteristics such as age, disability, religion or sex must be ignored.

The employer will need to mark each of the potentially redundant employees according to the finalised selection criteria.

Different weighting can be given to different criteria. It can also be useful to ask different managers to independently score employees in the at risk pool in order to ensure objectivity.

ALTERNATIVES TO REDUNDANCY
In many cases, consultation between employer and an employee who is at risk of redundancy will be focused on finding an alternative to dismissal on redundancy grounds. Employers should be prepared to discuss the steps that it has taken, or has considered taking, to reduce the risk of (or number of) redundancies. This might include things like a recruitment freeze and terminating the engagements of agency workers before embarking on the redundancy process.

Equally, employers should provide details of any vacancies to employees who are at risk of redundancy in order to minimise the number of dismissals that might need to be made.

STATUTORY PAY
Lastly, when making redundancies, employers should bear in mind that employees are entitled to an SRP payment where they are dismissed by reason of redundancy and have at least two years continuous employment at the date of the dismissal. The calculation for this can found at: gov.uk/calculate-your-redundancy-pay

Managing a redundancy process to ensure fairness can be difficult. It is crucial that an employer carefully plans the process at its beginning and critically before consultation with employees begins. Getting it wrong can have a big impact – in addition to potentially facing unfair dismissal claims, a poorly planned redundancy process may end up alienating the workforce at a time when the employer requires everyone to be particularly focused on the job at hand and morale is low.

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THE RIGHT PART GOES BEHIND WHAT FITS

THE RIGHT PART GOES BEHIND WHAT FITS

The rules around replacement parts are complex, but worth getting your head around, writes BM Catalysts Commercial Director Mark Blinston.

While there might be more hot air than hard facts about emissions across the mainstream press about vehicle emissions, there can be no doubt that reducing toxic gas and restoring trust in the motor industry is the greatest problem faced by the trade at the moment.

Everything is geared towards reducing emissions and much of the emphasis seems to be pointed towards vehicles and how we can reduce the impact that they are having on air quality. You may be wondering what we can do about it in the aftermarket; but one thing we can do is making sure the right part is fitted to the right vehicle based on the emissions standard of the vehicle in question – the Euro level.

Vehicles and replacement emission control devices must meet specific standards for exhaust emissions before they can be offered for sale in the European Union. Emissions limits are commonly referred to as Euro standards or levels.

Emissions are measured using a standardised test cycle called the New European Driving Cycle (NEDC). The NEDC was last updated in 1997 and is gradually
being replaced by the World Light Test Procedure (WLTP), which is designed to better replicate real driving conditions. WLTP is now being applied to new vehicles (types) but does not yet apply to replacement parts.

In order to test the durability of each part emission test results are most frequently multiplied by a deterioration factor; with the adjusted result then compared to the legislative limit. Deterioration factors are designed to simulate the likely change in performance of the part after it has aged with use over time. These deterioration factors have become more stringent over time, and so when coupled with the gradual lowering of limits it becomes considerably harder to achieve a pass when testing newer parts and newer vehicles. The largest increase in deterioration factors occurred between Euro four and Euro five.

In order to meet higher emission standards, it is frequently found that the OEM part is made to a higher specification than the lower EU level part it has superseded. Legislation requires a comparison of performance between a replacement part and its OE equivalent and so it naturally follows that tougher standards + higher deterioration factors + higher performing OE parts = a real need for a higher specification replacement part.

RIGHT LEVEL

The Euro level of each vehicle prescribed at the point at which that vehicle is Type Approved. A replacement part cannot be approved to a lower Euro level than that of the original vehicle; so if the vehicle is Euro five then the replacement must be approved to Euro five levels/limits. Testing and approving this part to Euro four would mean that it cannot be proven that it meets the relevant emissions standards and therefore cannot legally be fitted to any Euro five vehicle.

There are many catalytic converter and diesel particulate filter (DPF) references that appear to be physically identical but are, in fact, designed and approved for vehicles that carry different Euro levels. This is made possible as the internal specification of the part is largely the key to the emissions performance of the vehicle. For example, the Euro five version of the close-coupled cat for the Citroen C1 requires a specification that is more than 3 times that of the Euro four version of the part. A similar story is true of the Euro four/five Fiat five00 and Ford KA. Quite apart from it being illegal to fit the Euro four version to a Euro five vehicle, it will cause poor emissions performance with a much higher chance of related vehicle issues and potential part warranty returns. It can be easy to source the cheapest product which isn’t necessarily approved to the correct Euro level – the consequence of which is then a part that will actually not perform to the standards required.

CATALOGUE
The correct cataloguing of aftermarket parts is complex and challenging and many consumers will not be aware of the Euro level of their vehicle. It is therefore down to the garage and parts distributor to ensure that the part that is being sourced is approved for sale to the correct Euro level of the vehicle in question. This is something that has recently been identified as a “problem” in the aftermarket whereby parts can be physically the same, catalogued with the same start and close dates yet be very different both in terms of the internals and what they are legally approved for sale to fit.

In an effort to reduce the number of occasions that the incorrect part is being supplied and fitted to the vehicle, MAM (Autocat) will shortly be introducing the Euro level as a search criteria when identifying the correct part for a particular vehicle. Manufacturers of catalysts and DPFs will be asked to submit the Euro level for which their part has been homologated to enable an accurate match upon lookup. This is a positive step that the aftermarket is taking to reduce vehicle emissions.

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ELECTRIC VEHICLES VS THE AFTERMARKET

ELECTRIC VEHICLES VS THE AFTERMARKET

What challenges does the lubricant industry face? With impending bans on traditional vehicles and increasing market share of EVs

At the end of last year, the UK media reported a sixth month consecutive decline in sales of diesel cars. UK Government’s uncertainty about how to treat vehicles once classed as ‘the green option’ has led to consumer caution about buying cars that might be subject to higher taxation in future.

In July 2017, the UK Government declared that from 2040, sale of motor vehicles powered with internal combustion engines, petrol or diesel, would be banned. This followed similar announcements made by the French Government earlier that year. Even Original Equipment Manufacturers (OEMs) followed suit with Volvo and more recently Jaguar Land-Rover announcing the end of petrol and diesel car sales from 2019 and 2020 respectively.

The impact on the automotive sector, its fuel and lubricant sales, as electric vehicle sales increase cannot be underestimated.

Barclays’ analysts reported that if electric cars with greater efficiency increased to one third of the current automotive sector, this would cut global oil consumption by 3.5 million barrels a day by 2025. This is roughly the equivalent of Iran’s current supply of oil at 3.8 million barrels a day that is the Organisation of Exporting Petroleum Countries (OPEC)‘s third largest member.

Globally, demand for oil is still growing. In their 2017 outlook OPEC signalled that the medium-term demand for oil for the period 2016–2022 would increase by 6.9 million barrels a day, rising from 95.4 million barrels in 2016 to around 102.3 million barrels a day by 2022. Developing countries are expected to account for the majority of this increase, with demand expected to increase here by 43.2 million barrels a day in 2016 to 49.6 million barrels a day by 2022.

A cut in automotive demand for oil would effectively wipe out half the expected increase in global oil demand by 2022. But globally, the demand for oil would still increase.

Transportation is expected to remain the largest consumer of oil products, both fuel and lubricants, well into 2040. Much of the sector faces weak competition from alternate sources of fuel and lubricants although improved efficiencies, the rise of hybrid or electric vehicles and a tightening of energy policies will help to decelerate increases in the demand for oil from this sector.

WHAT IS ALLOWED?
Details of the French and UK Governments’ decision to ban conventional internal combustion engine vehicles is still vague. Will hybrid vehicles still be allowed? What about heavy goods vehicles or diesel powered public vehicles such as taxis? Some analysts believe that Governments might have kicked an emissions issue aligned to poor air quality into the long grass. The UK faced with the prospect of fines by the European Union over the quality of its air in cities, needed to be seen to be doing something positive about the issue.

Today’s vehicles are cleaner and leaner than those of ten or twenty years ago. Exhaust after treatment devices, both catalytic converters and diesel particulate filters, have removed many post-combustion harmful gases. Car scrappage schemes promoted by both Government and car manufacturers have incentivised owners to replace ageing vehicles with more modern cars. Changes to car taxation duties reward cars with lower emissions.

Electric cars might not be the panacea for everyone. Limited battery range and the high cost of lithium power cells means that extended ranges between charges of 300 miles or more are not yet a reality. As local town run-arounds or shopper cars, electric vehicles provide a viable alternative to conventional vehicles for journeys typified by short local stops. For longer commuter journeys then electric vehicles alone do not currently provide a realistic solution in the absence of a national and comprehensive electric charging network.

Much needed investment in electric charging stations along major motorway routes and trunk roads still remains in short supply. The Petrol Retailers Association (PRA) gave evidence to UK Government’s Automated and Electric Vehicles Bill Committee in November arguing against proposals to mandate electric vehicle charge points in petrol stations and motorway service areas. Although subsidies exist for domestic installation, the Bill proposes that a larger commercial network of charging points would be paid for by fuel retailers who would, by implication, pass the charges back to motorists. Government would not fund such a scheme.

REQUIREMENTS
In terms of engine oil and lubrication requirements, hybrid vehicles act in a slightly different manner to more conventional vehicles. A distinguishing feature of hybrid electric vehicle is that the conventional engine switches off when the power available from the electrical cell exceeds that needed to propel the vehicle. This results in lower operating temperatures and higher stress during stop/start for the conventional engine, which could lead to increased sludge and varnish than that of conventional engines.

What of service intervals? In the UK, service intervals of 12,000 miles are usually expected by motorists. In America, some dealers are claiming that hybrid vehicles require oil changes every 5,000 miles or 10,000 miles if using a synthetic, more typical of conventional cars sold in that country. The move to lower viscosity oils could also confuse matters if a motorist has been used to using a 5w30 engine oil in their hybrid ten years ago and today the same, but newer, model of their much-loved car requires a lower viscosity lubricant of 0w20 or less.

For the aftermarket, although electric cars might prove a challenge today, a hybrid car is a more popular and obvious choice for motorists. They provide the assurance of extended ranges for longer journeys similar to that of conventional vehicles, with the benefit of lower emissions under town centre driving conditions.

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EXERCISING CAUTION WHEN HANDLING COMPLAINTS

EXERCISING CAUTION WHEN HANDLING COMPLAINTS

No matter what industry you work in, there will come a time when you receive a complaint based upon the services or goods you have provided.

Unfortunately, the automotive industry is no exception, and it can be easy to see such complaints as an unjustified attack on your company’s good reputation. In the heat of the moment, aggrieved business owners can jump to the defence of their company, engaging in a war of words with the complainant.

According to Gemma Carson, Head of Dispute Resolution at law firm Wright Hassall, they could do more harm than good: “Naturally, business owners can feel like they have a duty to protect their employees, and without thinking, fire back with an angrily worded email, expressing their displeasure with the original complaint.

“When emotions are running high, it is easy to get involved in a heated debate about the rights and wrongs, mistakes and failures, or actions and inactions of one party or another. It is at this point that things can escalate quickly and easily get out of control.

“The most serious issues can occur when promises or threats are made without due consideration given to any existing contractual agreements between the two parties.

“To reduce the risk of worsening the situation, there is plenty that can be done and it should start with a careful consideration of the content of the complaint. The pressure may be on, but take your time and ensure you make no commitments and no threats.

“Allow yourself time to properly cool down before sending a response, as emails sent while emotions are still running high have a nasty habit of biting back later down the line. “Instead, begin by drafting your email and save it to your ‘virtual mantelpiece’. This will give you time to review the situation and think carefully about what you want to say, instead of hitting back with a knee-jerk reaction.

“It is also important to check whether a service agreement and/or a contract exists between the parties. You should read any agreements carefully and check what they actually contain.“With an agreement in place, you may be able to respond to the complaint by highlighting any relevant contractual terms that may help you manage the situation.

DON’T IGNORE
“When dealing with a complaint, it is important to be proactive. By acting quickly, you can help diffuse the situation without the need for any legal involvement.

“Personal, face-to-face meetings will often help resolve issues before they can escalate. It is best to either raise the matter directly or if you suspect it to be more serious, to seek legal advice before you make contact.

“If it does feel serious, you should ensure you retain all of the relevant information relating to the complaint, including documents, correspondence and any products or specimen products from the same batch. It can help if you carry out and document any inspections of equipment or machinery.

GET HELP
“Seeking legal advice early on does not necessarily mean a serious legal dispute has arisen.

“Dispute resolution advice is very effective when delivered soon after the complaint is received, but your lawyers do not need to take an active role in the issue. They can offer strategic legal guidance focused on resolving complaint situations and diffusing potential disputes, whilst preserving the commercial position for the future.

“The most important legal factor to remember is that making a rash statement or taking a knee- jerk decision to stop providing your services or products, by sending that angry e-mail draft without first putting it on the virtual mantelpiece, may cause a serious breach of contract.

“If nothing else you risk a serious argument and potentially a threat of injunctive proceedings. In simple terms, a breach of contract can entitle the party affected by it to terminate the contract and then bring legal proceedings against you for damages.

“For this reason, sending that inflammatory e-mail without firstconsideringthe consequences could be a huge mistake that ends up costing time and money, both of which could be better spent managing or growing the business.

“Finally, where parties have become so embroiled that legal proceedings are not only threatened, but seem the only option, choose to work with experienced lawyers who understand commercial disputes and demonstrate a commitment to reaching an early, commercial and cost- effective resolution” concluded Carson.

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PHOENIX COMPANIES RISING FROM THE ASHES

PHOENIX COMPANIES RISING FROM THE ASHES

It’s a sad fact of life that businesses can and do fail and the fallout can impact upon many – owners, shareholders, employees, customers and suppliers alike. Often there is nothing underhand about the failure – the company is wounded fatally by a lost contract, a massive hike in rent or rates, or has been unable to adapt to changing market conditions.

Occasionally, however, firms are set up to fail through the deliberate actions of their management with a view to defrauding creditors. In certain situations, directors of the failed company turn to what is known as a ‘phoenix’ company.

PHOENIX RISING
‘Phoenixing’, or ‘phoenixism’, are terms that describe the practice of carrying on the same business or trading successively through a series of companies which in turn becomes insolvent – the idea being that a new business rises from the ashes of an old one, like the Phoenix bird of Greek myth, hence the term. Each time this happens, the business of the insolvent company (but not its’ debts), is transferred to a new, but similar, phoenix company, usually through the use of a pre-pack administration. A pre-pack administration involves the business of the liquidated company being sold as a ‘going concern’, (i.e. as an operating business) through a process orchestrated by an appointed insolvency practitioner. The insolvent company then ceases to trade and might enter into formal insolvency proceedings or be dissolved.

Phoenixing often harbours negative connotations, mainly because of the actions of directors who force their companies into insolvency to then purchase back company assets through the new company, leaving behind any liabilities in the insolvent company. The process often involves financial loss being suffered by the creditors of the failed company – a practice that can both leave a nasty taste in the mouth and give phoenix companies a rather bad reputation.

There is no doubt that in rare circumstances, the directors of a company do set out to commit insolvency fraud and so will deliberately reform a business using a phoenix company to avoid paying creditors. They will ensure that the phoenix company is set up so that it appears slightly different from the insolvent company. The business will continue to trade and operate and the creditors of the insolvent company will not usually recover their debts as they remain with the insolvent company – a separate legal entity – and will not be transferred over to the newly formed company. The bad news for creditors and suppliers is that they will have no contractual claim against the new company for debts incurred by the old, defunct, company.

THE LAW SAYS
The governing law of England and Wales allows shareholders, directors and employees of insolvent companies to set up new companies to carry on a similar business, so long as the individuals involved aren’t personally bankrupt or disqualified from acting in the management of a limited company, and the trading name of the new company is not the same or similar to that of the insolvent company. Setting up as a new entity is legal if the process has been managed properly. Entrenched company law principles mean that a limited liability company is a legal entity separate from that of its shareholders and directors. Except in very limited circumstances, the responsibility for debts incurred remain that of the company, subject to the actions of the company directors.

One circumstance where a director can be made personally liable, jointly and severally with the company, for all the relevant debts of the new company, is where they contravene the Insolvency Act 1986 by acting as a director of a company with a prohibited name (i.e. a name which is similar to suggest an association with the previous company’s name). Further, the director will also be liable to a fine or potential imprisonment.

SEEKING SOLACE
So, what can you do if you suspect some sort of insolvency fraud being undertaken by a company that you are dealing with? What happens where you find yourself in the situation where you have supplied a company and your invoice has not been paid? What should you if do you’re also unable to reach anyone at the company to speak to about the money that you are owed?

The company at this point may or may not be insolvent. If the company in question is insolvent, the appointed insolvency practitioner’s function is to investigate the practices of the company and distribute any assets found to the creditors of the business. Predominantly, the underlying assets of the insolvent company are required to be sold at market value and not (deliberately) at an undervalue. You, as a creditor of this business, should have an interest in such investigations and you should speak to and assist the insolvency practitioner where possible.

Company directors owe numerous duties to their company and the key duties are codified in the Companies Act 2006. These include promoting the success of the company, exercising independent judgement, exercising reasonable care, skill and judgement, and avoiding conflicts of interests. Where a company is threatened with or starts to undergo insolvency proceedings, directors not only owe duties to the company, but also to the creditors of the company and a number of provisions of the Insolvency Act 1986 apply in this case.

STRICT RULES
There are strict regulations placed on the directors of an insolvent company and any appointed insolvency practitioner regarding the use of a phoenix company to carry on the business of an insolvent company. The intention of the regulations is to protect the interests of unsecured creditors and to prevent company directors from escaping their obligations. It is a criminal offence under the Insolvency Act to knowingly carry on business with an intention to defraud creditors.

If this is proven, an insolvency practitioner may make the decision that the director is liable to make a contribution to the company’s assets on winding up. Remember, it is legal for a phoenix company to be formed from the insolvency of a prior company. However, any director that is subject to a disqualification order or a bankruptcy order cannot act as a director of the newly formed company. You may suspect that a director of a company that you are dealing with may be acting in breach of a disqualification or bankruptcy order and if this is the case, you should also report this to the Insolvency Service.

DEAL WITH IT
Information is available online, free, at Companies House to any member of the public who wishes to see who is registered as a director of a company that they are dealing with. The name of the company (this may be different from the name with what the company trades as) or the company number will be required to use the Companies House search function.

Despite the losses that can be experienced by a creditor because of the use of a phoenix company that may have been subject to insolvency fraud, the financial failure of a majority of UK companies is not usually as a result of wrong doing nor the misconduct of company directors. Companies can be dissolved or face financial difficulties for a variety of reasons.

One protective solution, obvious as it sounds, is to conduct preliminary investigations on new customers before entering into a trade agreements or offering trade credit. As noted above, check the publicly available register at Companies House for information on company directors and their companies, seek trade references, and also carry out credit checks. Forewarned is forearmed.

It may be worth checking to see whether your supplier contracts have, or possibly should have, clauses which aim to protect your legal ownership of the supplied goods until payment has been made by a customer. Some supplier contracts may include what are known as retention of title clauses which will state that the goods delivered by a supplier remain their property until payment by the customer has been made. Legal advice should be sought as ‘retention of title’ clauses require careful thought and drafting to ensure that they are effective, an event of insolvency should be properly provided for in such terms and conditions in order for a supplier to limit exposure to the risk of non-payment.

WHAT TO BE AWARE OF
Directors who don’t conduct business in line with their legal obligations face potential disqualification from acting as a company director. The Company Directors Disqualification Act 1986 prohibits directors whose conduct led to the insolvency of a company from taking on similar roles elsewhere for a prescribed length of time. If, as a creditor, you feel or suspect that a director of the company you are dealing with is conducting their business in an unfit manner, you can report them either to the Insolvency Service, Companies House or the Serious Fraud Office.

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EMPLOYEE MONITORING

EMPLOYEE MONITORING

Employee monitoring methods should be considered carefully

A recent decision by the Grand Chamber of the European Court of Human Rights has brought the question of employee monitoring to the forefront of employers’ minds once again. The Grand Chamber in Bărbulescu v Romania examined the ability of employers to monitor their employees’ work, email accounts and in particular, the extent to which employers can check whether employees are using email accounts for solely work-related purposes.

Mr Bărbulescu was dismissed by his employer for unauthorised personal use of the internet. The dismissal arose as a result of allegation that Bărbulescu had been using a Yahoo messenger account whilst at work. Following various decisions in Romania and in the European courts, the Grand Chamber of the ECHR determined that Bărbulescu’s private life and correspondence had been infringed.

It is worth noting that employers can be found to be vicariously liable for the actions of their employees in the course of their duties. This means that employers may find themselves liable for their employees’ actions if the employee causes damage or loss to a third party. Employers therefore often find that they have a heightened interest in understanding – and keeping tabs on – the activities of their employees.

EMAIL AND INTERNET USE
The Grand Chamber decision in Bărbulescu v Romania highlights the fine balance between an employee’s reasonable expectation of privacy and an employer’s right to check the activities of those working for them. It was not sufficient for the employer to simply inform the employee that there was an internet usage policy in place but instead, the Grand Chamber found the employee should also have been made aware of the extent and nature of the monitoring activities that the employer was putting in place.

In the UK, the monitoring of employees is heavily regulated by existing legislation, which places limitations on the
powers of employers to monitor their employees’ private communications, including the Data Protection Act 1998 (and soon to be the General Data Protection Regulation, which comes into force in May 2018). Employers must provide
legitimate reason to justify the monitoring of an employee’s communications. This requires some form of assessment to be in place in order to decide whether legitimate reasons are in place.

The importance of an assessment can also be found in the Information Commissioner’s Employment Practices Code in the UK. The Code recommends that employers carry out an impact assessment, taking into account factors such as the purpose behind the monitoring arrangement and any benefits or adverse effects that arise from this monitoring.

Ultimately, employers must be satisfied that they have achieved the correct balance between protecting workers’ privacy and the interests of the business. Carrying out an impact assessment in relation to communications monitoring is one way in which employers can demonstrate that they have achieved this. Employers should also ensure they have a communications monitoring policy in place and where possible, this should be backed up with specific training on the use of IT and email systems.

DRUG AND ALCOHOL MISUSE
Employers have a responsibility to look after the wellbeing, health and safety of employees whilst they are in the workplace, and this duty may extend to ensuring that employees are not misusing drugs or alcohol.

The extent to which employers will need to monitor their employees’ use of alcohol or indeed drugs, will depend on the particular environment in which the business is based. For instance, in some circumstances, it may be appropriate for employees to consume alcohol whilst entertaining clients. For other industries, however, employers will need to be much more cautious about their employees’ use of alcohol or drugs. Those whose staff use vehicles as part of their jobs, for instance, will need to maintain a higher level of vigilance in this respect.

Employers may want to consider whether it is necessary to carry out drug screening or alcohol testing. This will – of course – only be relevant in particular industries, however, for those where this is likely to be an issue, then employers should ensure that reference to screening or testing is included in a policy given to all staff.

Even with a drug screening or alcohol testing policy in place, employers will not be able to require staff to submit to testing without their specific consent to do so. One option is to draft the monitoring policy to say that withholding consent is a misconduct offence in itself.

TRACKING
Employers whose staff work ‘off-site’ – say when driving – may find it particularly difficult to know the exact movements of their employees during their working hours. Improvements in technology have, however, made employee accountability in the workplace much easier in recent years. Again, industries which rely on employees driving vehicles may find this kind of technology particularly useful. GPS, for instance, highlights if drivers are deviating from their planned routes or if there is traffic preventing them from reaching their destination.

If employers do intend to monitor vehicles they should ensure that they provide a policy which sets out the nature and extent of the monitoring. Employers should satisfy themselves that their employees are aware of the policy that is in place, what information is recorded and the purpose for that recording. Where the vehicle is used for both private and business use employers, should be particularly wary, as monitoring movements when the vehicle is being used privately will rarely (if ever) be justified.

CONCLUSION
Monitoring employees can take place in a variety of ways and employers should carefully consider which form of monitoring is necessary for their business, without being unnecessarily intrusive to the privacy of staff. Carrying out impact assessments are often a useful way of determining whether the monitoring is truly justifiable.

Case law such as Bărbulescu v Romania clearly demonstrates that the courts take the privacy of staff in the workplace very seriously. In order to reduce the risk of employee complaints, employers should try to be transparent and honest with employees about monitoring which they may be subject to.

Getting employee monitoring wrong can have a significant impact. Employers could face discrimination complaints or employees resigning and claiming constructive dismissal. Employees could argue that their rights under the Data Protection Act 1998 – or even the Human Rights Act 1998 – have been infringed. In addition to the cost and time associated with defending a claim, an employer could be found liable by a court, employment tribunal or the Information Commissioner’s Office, and ordered to pay compensation.

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VLS RECEIVES 50TH CASE

VLS RECEIVES 50TH CASE

As the Verification of Lubricant Specifications receives its 50th case complaint, the Director reviews the cases it has investigated so far

VLS was formed in 2013, when the industry faced a real problem. Lubricant products were being sold by some new market entrants with claims that just did not seem to be believable. Closer inspection found that occasionally sub- standard formulations provided by newly-established companies were being passed off as the latest specifications to their customers, or even failing to perform effectively at low temperatures.

Even though the majority of lubricants were compliant with relevant market standards and manufacturer approvals, out of this concern reputable lubricant blenders and manufacturers came together to launch the Verification of Lubricant Specifications (VLS), an industry-led service that independently validates complaints regarding the technical specifications and performance claims of products.

Four years on, VLS has tackled 50 cases, receiving its 50th complaint in September this year. Looking back over the cases so far presents some interesting reading.

MISLEADING CLAIMS
The first case was received in March 2014. The complaint related to an engine oil which was making unrealistic claims that did not comply with ACEA sequences for which it was claimed to be suitable. At the time, VLS was still relatively new and people did not know what to expect. The company involved soon saw that it meant business as the case was escalated to Trading Standards and the company suspended from membership of the United Kingdom Lubricants Association (UKLA) until the matter was resolved.

Non-compliance with ACEA has accounted for the majority (60 percent) of cases. These engine oil sequences change every four years to take account of developments in emission regulations and technical developments in OEM engine design. Lubricant marketers need to manage their stockholding to ensure they are not left with old stock on the shelves when the new sequences become mandatory. VLS cases have shown that they will get reported, investigated and required to withdraw mislabelled stock if necessary.

COLD WEATHER
Around a quarter of cases have related to low temperature properties, which is a particular safety issue. In one case a lubricant was found to turn solid at temperatures of minus 40 degrees centigrade. Whilst the temperature in some parts of the country rarely stays below freezing for a sustained length of time, in Scotland, extreme temperatures are not uncommon. To be within specification, lubricants must be able to perform even in these extreme conditions to avoid damage to vehicles.

OIL TYPES
Of the cases investigated three quarters have related to passenger vehicle engine oils. This is in line with expectations, as automotive comprises a significant sector in the marketplace, as much as half of all lubricants sold. However, VLS’ remit does include everything from engine to transmission and gear oil and all have featured in cases. Seven cases of automotive gear oils with suspected low temperature properties have been investigated. Cases have also been reported in automotive transmission fluids and hydraulic fluids. VLS has even investigated agricultural tractor oil. So far only two cases have been received relating to industrial products and one in the marine sector. VLS plans to focus on raising awareness in this sector as well.

AFTERMARKET AND BEYOND

Over the course of 2017 the number of cases brought to the attention of the organisation has reduced as the initial issues of non-compliance have been tackled in the wider lubricant marketplace. There is now a greater awareness amongst marketers and blenders as to what constitutes a compliant product.

We know this because blenders report that there is a greater degree of compliance in the market place, additive companies tell us that they are engaging with companies that they have not had a relationship with previously, and European body ATIEL has also begun its own programme of policing conformity.

If you have any concerns about lubricant products then you can report them to VLS by calling 01442 875922 or emailing admin@ukla-vls.org. uk. VLS handles all cases anonymously through a clearly defined process which includes technical review by a panel of experts from across the industry and dialogue with the manufacturer and all relevant parties to work together to resolve any issues.

You can find out more about VLS by visiting their website: www.ukla-vls.org.uk or calling 01442 875922.

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AUTOMATED FUTURE FOR FACTOR CHAIN

AUTOMATED FUTURE FOR FACTOR CHAIN

Large German factor Stahlgruber combines robotics and logistics in hub reboot. CAT contributor Alan Smithee gets the latest. 

Factor gets an upgrade

How about this for a warehouse upgrade? German motor factor Stahlgruber needed to expand and in typical fashion, bosses at the firm put their minds to achieve the most efficient solution possible.

What they came up with was a completely robotic 23,000 sq. ft extension, connected to the existing facility by a 60-metre bridge with a pallet conveyor. Working with warehouse automation firm TGW Logistics, the firm built the new new automatic ‘mini-load’ warehouse and the entire conveyor system for plastuc crates known as ‘totes’, roll containers and pallets, plus the storage and retrieval machines. TGW was responsible for the design and installation of the pallet conveyor and storage and retrieval equipment in the receiving area.

The new 26-metre-high automatic mini-load warehouse consists of two storage levels with nine aisles each, and two separate storage and retrieval levels serviced by machines. ‘Twister’ load handling devices transport the goods to and from 165,800 storage locations at rates of up to 118 movements per hour, with each unit identified by barcode and tracked on Stahlgruber’s computer system.

As part of the new facility, TGW built a new receiving terminal that makes the best of the received goods’ travel through the logistics centre. Modifications to the existing pallet handling system means suppliers now deliver all pallets pre-labelled with a barcode indicating the shipping unit.

On receipt in pallets or grid- boxes, items are routed either directly to the existing pallet warehouse over the bridge via conveyor; to eight picking stations for direct picking from pallet; or to 44 decanting workstations connected to the tote conveyor system for unpacking the pallet into the tote crates. A display at each decanting station informs the employees about the required number of items to put into a provided empty tote, which is then transported to the automatic mini-load storage warehouse.

The existing warehouse has also been redesigned with ‘ergonomic’ workstations for receiving, repacking, picking and shipping areas, with everything to hand and technology measuring weights etc in order to provide the best possible conditions for the employees. There is little need for employees to walk very far at all in fact, as the facility has four kilometers of conveyors whizzing totes and pallets wherever they need to go. Bosses reckon on employees picking 210 totes per hour. The same picking stations also pick from full pallet loads delivered directly from the receiving area via TGW pallet lifts and a double transfer car.

TGW also added a new shipping line to the shipping area and expanded the dispatch sorters. The changes to the twenty-year-old conveyor system in the shipping area increased performance significantly and dramatically reduced the noise emissions. The logistics centre now holds over 155,000 SKUs, with up to 100,000 orders leaving each day in a two-shift operation that provides customers with fast, accurate deliveries.

Even more surprising is that the upgrade, was completed in a year without having to shut the warehouse. “Work in this area was carried out at weekends, to avoid affecting the facility’s performance during the reconstruction phase,” explained TGW Project Manager Josef Eibel. “The coordination was challenging at times, but the team worked together perfectly and the high-tech upgrade for factor shipping area’s performance was doubled. The new system provides Stahlgruber with a supply chain that provides operational efficiencies as well as enhancing its high levels of customer service.”

Is this an exciting future, or are robots threatening the way we work? Why not email CAT and let us know your views.

MINI-LOAD SYSTEMS
‘Mini-Load’ systems, so-called because they use small crates called ‘totes’ in conjunction with a tall and fast robotic picking known as Automated Storage and Retrieval. When used with other systems mentioned, they can increase space utilisation by 90 percent, productivity by 90 percent and throughput up to 750 lines per hour. Who wouldn’t want that?

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