As part of our 10th anniversary celebrations, we wanted to speak to people across the firm – from those who were here at the beginning of our journey, to those who have joined us in recent years – to get their views on what makes Pannone what it is, and how the legal and Greater Manchester landscape has changed during that time.

In the first of a 10 blog series, we speak to partner, David Walton. He joined the Health, Safety and Regulatory team in March 2023, having worked in the legal sector for 32 years. During that time, he worked alongside Bill Dunkerley, Associate Partner at Pannone, who convinced him that he should come and speak to the firm when, at the end of 2022, he was exploring his vocational future.

“As a former business owner and practicing lawyer, I was in the enviable position of having a good insight into what the final years of my professional working life could and should look like and, upon meeting the senior leadership team at Pannone Corporate, I realised very quickly that I had found what I was searching for.

“I already knew the Pannone Corporate brand symbolised legal acumen and professionalism; lawyers practicing at the top of their game. That was confirmed very soon after joining the firm. However, what equally attracted me to Pannone and, what was confirmed when my feet hit the ground, was the sense of team spirit, bonding and trust that permeates through all parts of the practice. Management styles can differ greatly and are central to a firm’s success. The management style adopted across Pannone (transparent, fair, and one that rewards team players working towards a common goal), is one that I have always tried to emulate myself. Pannone is made up of honest, decent people who care in equal measure about their clients and about each other. In many ways it is an “old school approach”, but, ironically, in 2024, it’s completely in line with what a modern workplace should look like.

“It’s exactly one year since I stepped through the door to start my first day. I expected the transition from a firm I’d worked in for over 30 years, to a firm in which I knew very few people, to be challenging – particularly in light of my age! In truth, it has been rewarding, rather than challenging. I’ve been made to feel welcome by everyone I’ve met and the sense of team and comradeship is constantly in evidence. I’ve embraced bringing my area of specialism and contacts into a full-service commercial law firm and enjoyed working alongside the firm’s myriad of specialists. Bill and I have a vision for the HSR team, which is fully supported and which we are driven to deliver.

“The North West is continuing to grow and present itself as a realistic alternative hub to London. It’s entrepreneurs and internationally recognised sports teams enhance that reputation and, naturally, it is building a legal community to match. Pannone, a relatively small practice in terms of numbers, already punches above its weight in that North West arena. However, my reason for joining is to help those visionary founding partners, and those who have subsequently joined, to expand upon what has evolved and become even more of a player in the North West legal scene.

“If I had to think of one word that sums up Pannone it would be “trustworthy”. If I had to think of a second, it would be “team”!

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In the latest of our quarterly retail law updates, we look at the news and legal developments affecting the sector.

This month, it covers the pitfalls of email marketing, options for struggling retailers and, one year on, what has the Environment Act achieved, as well as a guest post from Mazars with an update us on the latest developments around the online sales tax.

Read our quarterly update here

If you would like to discuss these topics in more detail, or have any questions, contact partner, Melanie McGuirk on 07790 882567 or email melanie.mcguirk @pannonecorporate-com

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Huge congratulations to Pannone’s Corporate team who were highly commended at this year’s Manchester Legal Awards. Partners, Mark Winthorpe and Tom Hall, were joined by the rest of the team to collect their award in the Team of the Year – Corporate/Commercial category. The MLA recognise and reward the wide range of skills and talent from across the regional legal sector.

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The Legal 500 is positioned as the ‘client’s guide to the best law firms’ because it is underpinned by client feedback and insight about how a firm and its lawyers work. It’s an important benchmark, which celebrates our team, allows us to build on success and strive for continuous improvement.

The Legal 500 rankings for 2022 – highlighting the practice area teams who are providing the highest quality legal advice – feature Pannone Corporate in 15 areas of law, moving up in two corporate & commercial, and commercial property.

The rankings include Tier 1 listings for our contentious trusts and probate, media and entertainment, and debt recovery teams. As well as the teams’ success, three people were named in the Hall of Fame, the firm had six namechecks for ‘leading individuals’, two ‘next generation partners’ and four mentions for ‘rising stars.’

Beyond the numbers and fantastic recognition in the rankings, we’re proud to see all the feedback from clients. Here’s what they said:

 

Contentious trusts & probate

“What sets them apart is their ability to combine their knowledge of the law, the softer skills of client care and an ability to be direct. The clients I have referred to them are by the nature of the specialism in a highly emotional state and every one of them has been gushing in their praise of the work done by this team.”

 

Debt recovery 

“An engaging, tenacious team who are practical and efficient in what they do. They have worked with us and our functions to provide a seamless recovery service to suit our business needs.”

 

Media & entertainment

“Liaison with clients takes on a personal form and the relevant legal staff do not need reminding about issues. They keep in touch.”

 

Employment 

“Responsive, accessible and commercial practitioners who work with us, as the client, to arrive at the right outcomes for our business.”

 

Health & safety

“A new team but one with excellent experience and technical expertise with a dynamic can-do approach and a personable demeanour.”

 

Intellectual property

“…amazing from our first meeting right to the conclusion of my case, our first meeting gave me hope in a situation which I had long since deemed a lost cause… extremely empathetic to my situation and secured a settlement against a formidable adversary.”

 

IT & telecoms

“Attentive, personal and always available for advice and guidance.”  

 

Professional negligence

“Highly specialised firm with a strong track record in claimant professional negligence work.”’

 

Commercial litigation

“Pannone Corporate has lawyers at the top of their respective disciplines and a client base to match. Customer service is a key ethos at the firm with a high degree of partner involvement ensuring the client gets the service it needs. Electronic document management and searching ensures that key documents are identified early in the case.”

 

Corporate & commercial

“…adaptive and pragmatic in their guidance and advice. We completed three transactions with them and found them to be sensibly priced and adaptive in their approach to the size and scale of due diligence required.”

 

Property litigation

“Pannone Corporate strikes an excellent balance: they have the big-firm capacity to handle large and complex cases, but the small-firm responsiveness and personal touch. They have the flexibility and skills to manage cases that cross between different fields, for example real estate litigation that raises company law, insolvency or property damage issues.”

 

Commercial property

“The approach of Pannone and their staff is very much aligned to our values, what is important to us and the way we like to operate, Pannone recognise this and it’s reflected in the service they provide. It’s important when dealing with legal matters that a firm has the ability to tailor its service to work in partnership with its clients, take time to understand our objectives, the way we operate and therefore offer a more bespoke service to deliver the right outcomes. I feel that this is a specific strength of Pannone.”

 

Insolvency & corporate recovery 

“The team are always ready to help and have found innovative solutions to technical problems.”

 

Construction 

“All of the partners feel like extended members of the in-house team. They are flexible and accommodating.”

 

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10 April marks 100 days since the EU/UK Trade and Co-Operation Agreement came into force. Much like the ‘first hundred days’ analysis that follows the start of a leading politician’s term in office, it’s interesting to step back and think about the impact and changes that have, or haven’t, been made since the end of the Brexit transition period on 31 December.

Brexit caused an immediate shock to the import/export market following the end of the transition period in January. The latest export figures issued by the Office for National Statistics (ONS) record that UK goods exports to the EU fell by 40.7 per cent in January, while imports dropped 28.8 per cent. They were the largest declines since comparable records began in 1997.

Additional red tape appears to be hitting food and drink importers and exporters particularly hard (think seafood and wine), whereas the imposition of customs duties and VAT is causing trouble for online retailers.

But has it been as bad as the “Project Fear” predictions? The picture is certainly complicated, with the lingering disruption of COVID-19 and stockpiling in anticipation of the end of the transition period also playing their part. We have not seen the much talked about excessive lorry queues and holding pens in Kent (although there were issues before Christmas when France closed its borders due to the UK COVID variant) and commentators generally expect the initial trading difficulties to iron themselves out over the coming months.

So, what can we expect next, and will the Government be able to shift away from the EU’s general direction of travel?

An interesting insight into UK policy comes in the form of the new “right to repair” rules, which the Government has confirmed will be introduced in the UK this summer. These changes reflect the EU rules which took effect on 1 March throughout the EU, meaning that manufacturers of certain white goods must supply spare parts for up to 10 years, to reduce electrical waste.

The UK was not obliged to adopt these same rules, no longer being a member of EU. However, irrespective of the UK rules, UK-based manufacturers and distributors would still need to comply with the “right to repair” legislation when selling into the EU. The reality of businesses having to operate under two different systems was a headache too soon for many.

While divergence from the EU will be seen over time, the fact is we were never going to see any radical changes in the first 100 days, with sectors still trying to adapt to the free trade agreement. Any move, and additional red tape, would undoubtedly be hugely unpopular with businesses and could put the zero-tariff agreement at risk.

In the short term, the adoption of more EU-led legislation is probable, as the UK has to align with what EU member states are doing. The export figures for January make a compelling case for maintaining the status quo, despite our departure.

Alongside this, there is likely to be a lot of political noise and posturing from the pro-Brexit Government to demonstrate that the UK is not following the EU’s lead. For example, there’s currently a lot of talk about the need to refresh the GDPR – on both sides of the Channel actually. In reality, our ability to substantially depart from the EU’s data protection regime is limited if we want to retain near-frictionless trade. When we consider that it took nearly eight years for the GDPR to be implemented, any such changes would be longer term in any case.

Some short-term certainty will be favoured by most businesses, with few having any real appetite for a drastic overhaul of legislation or introduction of separate UK regulatory regimes in the current climate. For this reason, a review of the first 100 days tells us little we did not already know; a review of the next 10 years will give a fairer assessment.

 

 

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Welcome to our Winter newsletter!

As the light finally appears at the end of the Covid19-shaped tunnel, we’ve seen a period of significant developments across our practice area.

In the past month, the Supreme Court has turned inquest practice for regulatory lawyers on its head. An uninvited ruling looks set to make cases following workplace deaths far more challenging and potentially dangerous for employers.

The High Court has also been in action, ruling that the UK has failed to fully implement two EU health and safety Directives. Gig economy workers can now enjoy some of the protections afforded to their employed counterparts. Watch this space for an appeal.

We’ve also included a report from our annual seminar event. We looked at how Covid19 has changed the way regulators are behaving, from their investigatory methods through to their enforcement decision-making. A summary of the key points is included.

As ever, we welcome your feedback and questions so please do get in touch.  We wish you, your colleagues and your families all the best for the festive season.

 

Recent highlights

Regulatory Viewpoint: Covid19 and the impact on regulators’ behaviours

Having held our inaugural seminar in October 2019, it was disappointing but not surprising to find that our follow up event had to be hosted via Zoom.With coronavirus at the forefront of business planning this year, it was perhaps inevitable that it would feature large in our topic choice for the morning; the impact of the pandemic on the behaviour of our safety, health and environmental regulatory agencies.

Read more >

Inquest News: Surprise Supreme Court ruling raises the profile of workplace inquests

On 13 November, the Supreme Court handed down judgment in the case of R (on the Application of Maughan) (Appellant) v HM Senior Coroner for Oxfordshire (Respondent). In doing so – and almost incidentally – the Court has immediately raised the profile and complexity of those cases that result from fatalities in the workplace.

Inquest conclusions
Coroners and their juries have a range of conclusions available to them at the end of an inquest hearing.
Read more >

Health & Safety News: Union scores Court victory for gig economy workers

There are almost five million people working in the UK gig economy and this number is rising. The lack of formality around these working arrangements has its advantages and disadvantages for both worker and business. But with gig economy workers not classed as “employees” a recent case challenged the approach of our existing health and safety laws to managing the risks faced by these flexible workers. The case was brought by the Independent Workers Union of Great Britain (the Union).

Read more >

Health & Safety Viewpoint: Second wave support for vulnerable employees

The clinically extremely vulnerable are considered to be at a higher risk of severe illness from Covid-19 and yet research by Scope found that 22% of disabled employees have had their requests to alter working patterns declined.

So can the clinically vulnerable safely be at work? And what can you, as an employer, do to achieve the outcome that not only best serves your business but also looks after the individual employee?

Read more >

Health & Safety News: extended prohibition on mobile use at the wheel possible

The Government is undertaking a consultation that proposes to make using a mobile phone while driving illegal.

The suggested extension to the existing rules will include prohibitions on taking photographs, using apps, accessing the internet and scrolling through playlists.  This will be in addition to the current restrictions on making and receiving calls and reading and receiving texts.

All employers with vehicles and drivers on the road should follow the outcome of this consultation to establish if the organisation’s policy and supporting training requires reviewing and updating to accommodate any new rules.  The consultation closes on 17 January 2021.  You can access the consultation document here.

 

Health & Safety News: HSE seeks views on driving at work

It is estimated that one third of all road traffic collisions in Britain involve someone who is driving as part of their job, with countless others involving people travelling to or from work.
In recognition of the employer’s role in managing these risks, the HSE published guidance with the Department for Transport.  However, INDG382: Driving at Work has been with us now since 2014 during which time there have been changes in approach and technology, which raise doubts as to the currency of the guidance.  With that in mind, the HSE is seeking views in a short survey, which can be completed here.

Environmental News: New packaging waste recycling targets set

The packaging waste regime imposes legal obligations on businesses that turnover more than £2m and handle more than 50 tonnes of packaging per year where the business is involved in:-

  • manufacturing raw materials for packaging;
  • converting materials into packaging;
  • filling packaging;
  • selling packaging to the final user;
  • leasing out packaging; or
  • importing packaging or packaging materials into the UK.

Read more >

Environment News: Amendments to the Environment Bill tabled

Already making snail-like progress through Parliament – and as we have reported previously – the Environment Bill has been stalled by both the pandemic and Brexit preparations.

More recently, the Government has tabled amendments to the Bill, including a power for the Secretary of State to issue guidance to the Office for Environmental Protection (OEP) regarding its enforcement policy.  This has led some to question the independence of the new regulator.

There are also conservation related amendments, including a new duty for local planning authorities to work with Natural England

Trading Standards News: investigation into false and misleading environmental claims

The Competition and Markets Authority (CMA) has launched an investigation into false and misleading environmental claims in advertising.  In a move that makes good on a key strategic objective, the CMA has opened a consultation, which is expected to lead to new guidance for businesses in future.

The investigation has become a priority as UK consumer spending on ethical goods continues to sky rocket.  The CMA’s concern is that businesses are making false and misleading “green” or sustainability claims in order to cash in on a more principled consumer base.

Trading Standards News: Consultation on banning HFSS adverts

Following Boris Johnson’s vow to tackle obesity, the Government is now consulting on proposals to ban online and TV adverts for high fat, sugar and salt products (HFSS).

Around two thirds of adults exceed a healthy weight and of those people, half are obese.  In addition, a third of children leave primary school either overweight or living with obesity.

Investigations News: New disclosure guidelines

Following a review of the efficiency and effectiveness of disclosure in criminal cases, the Attorney General has issued new guidelines to come into force on 31 December.

The review highlighted the need for earlier engagement between prosecution and defence and warned against treating the process as “a schedule completing exercise”.

Investigations News: Private prosecutions in the spotlight

The Justice Select Committee has published its report into safeguards in private prosecutions.  The report is aimed at ensuring that private prosecutions are fairer and subject to the same standards as public prosecutions.  The review was instigated following a rise in the number of private prosecutions, including by the Post Office, which averaged 52 such cases per year (a large number of which involved its Horizon system).

Read more >

Food News: Six figure fine for Tesco

Tesco has been fined £167,000 following an admission that it had breached food safety and hygiene laws.  When Trading Standards Officers visited a Bracknell store, they found more than 40 out of date products.  The company said that the findings did not reflect its high expectations for its stores.  However, the prosecution found that the store’s documents showed checks that had been done were wrongly carried out.

This is another example of the increased profile of such cases under the 2016 sentencing regime.

 

Food News: FSA publishes local authority enforcement report

The FSA has now published its annual report covering local authority enforcement of food laws across England, Wales and Scotland.  Covering the period to 31 March 2020, the report provides a picture of enforcement activity at the point the country first entered lockdown.

The report’s findings include:-

  • Broad compliance remained at high levels, with 90.4% of establishments in this bracket, which is the equivalent of a 3-star rating under the Food Hygiene Rating System.

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We make it our business to understand business – translating law into opportunity, growth and compliance for our clients. That’s why the Legal 500 acts as such an important resource to us as a firm. Badged as the ‘client’s guide to the best law firms’, it’s the emphasis on ‘clients’ that makes it so relevant to Pannone Corporate.

The Legal 500 rankings for 2021 – highlighting the practice area teams who are providing the highest quality legal advice – have now been published and feature Pannone Corporate in 17 specialist areas of law. This includes Tier 1 listings for our contentious trusts and probate, media and entertainment, and debt recovery teams. With two partners making the ‘Hall of Fame’, seven being chosen as ‘leading individuals’, two as ‘next generation partners’, and five ranked as ‘rising stars’, the latest Legal 500 rankings make for positive reading for the firm.

So, after months of detailed analysis of law firm submissions and thousands of interviews with GCs and private practice lawyers, what did they say about us?

 

Debt recovery

Praised for offering ‘the knowledge and ability that debt recovery agencies are lacking’, while being ‘extremely knowledgeable’ and always willing to ‘go the extra mile’, our debt recovery team is primarily focused on business-to-business debt issues but is also engaged in all types of debt recovery processes.

‘I have worked with this team for a couple of years and their responsibility and commitment to work is extraordinary.’

 

Media and entertainment

Described as ‘outstanding’ with a ‘deep understanding of how the media operates’, the media and entertainment team covers both contentious and non-contentious matters, with their expertise encompassing advertising and marketing, defamation and reputation management, as well as expertise across sponsorship, merchandising, social media, publishing and brand protection matters, among others.

I do not recall being more impressed with a team that I have not worked with before. Their work ethic, insight and dedication to the client make them a joy to work with.’

 

Contentious trusts and probate

The contentious trusts and probate team acts in a variety of mid- and high-net-worth estate and trust disputes. It represents an assortment of regional and national clients, as well as an increasing number of international clients. Acting for claimants, executors and beneficiaries in a variety of claims under the Inheritance Act is also a key area of strength.

‘Calm, experienced and well suited to high-value cases with a personal or emotional element… excellent at dealing with difficult or unusual lay clients.’

 

Employment

 Best known for advising clients on TUPE matters, particularly in the context of outsourcing and in-sourcing, the employment team regularly advises clients in the social housing sector on the TUPE issues which arise from local authority procurement. In addition, the department assists multinational corporations, large public sector organisations and SMEs on a range of matters, including HR support for disciplinary action, grievance investigations, and hearings.

‘A talented and highly responsive team of lawyers who have diverse backgrounds and knowledge and can give you speedy professional advice and guidance.’

 

Health and safety

The team deals with both contentious and non-contentious health and safety matters, excelling in the care, retail, logistics, social housing, minerals, manufacturing and food industries sectors. The regulatory practice is well-versed in the areas of corporate manslaughter, gross negligence manslaughter, coroner’s inquests, food, fire and product safety, as well as environmental law issues.

‘It is good to have a diverse mix of core skills, which Pannone offers. Their specialist knowledge of the minerals sector is supported by the addition of a range of specialisms within their portfolio.’

 

Intellectual property

 Offering a ‘high standard of service and commerciality’, the team specialises in contentious matters, such as trade mark, passing off and copyright disputes, in addition to search orders and injunctive relief. Other areas of specialism include brand licensing, sponsorship and merchandising agreements, technology and patent licensing, as well as research and development agreements. Franchise litigation and disputes related to employee breaches of restrictive covenants are also key offerings for the team.

‘The quality is clear to see. They have strength at all levels. They are a top IP litigation team that can compete with any other.’

 

IT and telecoms 

The team is engaged in a broad array of IT contract work, including disputes, with specific examples including development, implementation, data centre, hosting and support and maintenance agreements. Further expertise covers data protection, software as a service, software licences and outsourcing, with clients including e-commerce businesses and providers of IT hardware and software, technology and applications.

 

Personal tax, trusts and probate

The team advises mid- and high-net-worth individuals on wills, trusts and estate issues and general succession planning matters, with particular expertise in lifetime tax planning mandates for entrepreneurs, prominent business owners and non-UK domiciled clients.

Experienced in and ‘well capable of dealing with high-value trusts and estates.’

 

Professional negligence 

The professional negligence team, which is part of the wider litigation practice, is primarily claimant-side. The team acts against a wide range of professionals, including tax professionals, accountants, solicitors, architects and surveyors. The practice also acts for defendants where there is no insurance or the insurance that is in place does not cover the .

‘This is a highly efficient team, which brings focused intellect and expertise to any case they are retained in.’

 

Commercial litigation

The litigation and dispute resolution practice handles a range of commercial disputes, with particular experience in the retail, industrial, manufacturing, engineering and recruitment sectors. The team also has a breadth of expertise in commercial, corporate, real estate and commercial fraud matters, together with professional negligence claims, judicial review applications and partnership disputes.

‘Collaborative, approachable and solution-driven.‘

 

Property litigation

The team, regarded as having ‘the resources and technical skills to handle all sorts of cases, up to large and complex High Court trials’, has a wealth of experience handling disputes such as nuisance and contaminated land claims, contested lease renewals and dilapidation claims, together with a record of work on guarantee claims and matters relating to breach of covenant.

‘Strongly recommended. They are a go-to firm for all kinds of commercial and residential property disputes.’

 

Charities

The team’s charity and not-for-profit offering draws expertise from our commercial, corporate governance, finance, real estate, IP, IT, dispute resolution and employment departments, and advise clients on a broad range of issues.

 

Planning and environment

The team undertakes contentious and non-contentious planning and environment work for clients, advising on criminal investigations and proceedings and environmental permissions as well as providing support to the corporate and real estate departments on transactions. Strategic advisory work is another cornerstone of the practice.

 

Commercial property

The ‘very professional and personable’ team works with a range of clients in the leisure, retail and logistics sectors, regularly advising on commercial property joint ventures and acquisitions.

‘Very good at planning the issues and helping clients to understand any problems.’

 

Corporate and commercial

The team is acclaimed for its ‘highly knowledgeable and flexible’ service. Its corporate offering handles mid-market M&A and private equity, while the commercial team addresses a broad variety of agreements, including manufacturing, supply and procurement, distribution, outsourcing and joint venture contracts. The team is particularly active in the manufacturing, technology, IT, retail and oil and gas sectors.

‘They manage to combine that quality and professionalism with a very down to earth and approachable attitude, and I wouldn’t hesitate to recommend.’

 

Insolvency and corporate recovery

The team is highly experienced in supporting businesses and their directors through financially challenging situations and “offers longstanding experience in insolvency and corporate recovery matters.”

The practice is active in contentious and non-contentious restructuring work, with advice given to directors, creditors and lenders.

Credited as being “academically gifted with lots of commercial nous”, the team will advise businesses on exactly what to expect from an insolvency or restructuring process and how to best manage it, with clarity and support for directors to fulfil their responsibilities and statutory duties throughout.

 

Construction

The construction team provides clients with comprehensive support, which includes advice on contract formation and representation in disputes. The firm acts for both claimants and respondents in adjudications and is also sought out in arbitration and litigation cases. The team’s sector expertise includes power, transport and rail, as well as experience in contentious and non-contentious construction matters.

‘The small team compares favourably and even betters City of London Silver Circle peers for a fraction of the price.’

 

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The UKCA mark has something of a chequered history, with the previous guidance having been withdrawn and replaced by relative radio silence from Whitehall in terms of what January 2021 might bring.  But as the end of the transition period rapidly approaches, the Government has now filled the void, confirming as it does so that we will indeed see a UKCA mark post-Brexit.

Background

As an EU Member State, our businesses have long been accustomed to the rigours of the CE marking process; a scheme designed to ensure that certain products placed on the EU market demonstrably complied with specific laws relating to health, safety and the environment.

Following the UK’s departure from the EU, it is now confirmed that most CE marked products will require a UKCA mark if they are to be sold in England, Wales or Scotland.  There will be separate rules relating to products to be sold in Northern Ireland.

Which products require a UKCA mark?

“Most” products which already require a CE mark will need a UKCA mark.  The new rules also apply to aerosol products.

The UKCA mark should not be applied to any product in the absence of a legal requirement to do so.

What does the UKCA mark mean?

A product bearing the UKCA mark will have been subject to conformity assessment to confirm it complies with the relevant essential requirements.  The Government guidance states that those technical requirements, as well as the routes to demonstrating conformity, will be “largely the same” as they are currently.  That said, this is a change and so an additional administrative burden (at least initially) can be anticipated.

When will this change take place?

In most cases, the UKCA mark can be used from 1 January 2021.  It must be used from 1 January 2022.

However, you must use the UKCA marking immediately from 1 January 2021 if your product:-

The changes do not apply to existing stock.  Any items that are completely manufactured by 31 December 2020 can continue to bear the CE mark.

Where should the UKCA mark appear?

You must check the specific regulations that apply to your particular product(s).  Generally, the mark will be applied to the product itself or its packaging.  Sometimes, it may be acceptable to place it on the accompanying manual or supporting literature.

When affixing the UKCA mark, you should be aware that:-

 

Can a product bear both marks?

Yes; indeed many businesses will need to affix both.  The EU will not recognise the UKCA mark and so if you are selling on the continent, a CE mark will still be needed.

You can display both marks if:-

Currently, the product requirements for each scheme are identical and it is widely reported that there are no plans for the UK to diverge from the EU on this point.  However, history tells us we can never say never when it comes to Brexit and with that in mind, businesses ought to keep a watchful eye on their product specific requirements both domestically and on the continent to ensure ongoing compliance.

Looking ahead, businesses should bear in mind that UK bodies will only be able to carry out conformity assessments for CE marking purposes if the EU recognise their competence as part of any future trade agreement with the UK.  As such, it may be necessary to make contingency plans now to deal with any future assessment requirements.

It is understood that the Government will implement a legal framework that will allow UK conformance assessment bodies to continue to operate for most products to be placed on the domestic market.

What should I do now?

Those involved in the supply chain should examine the guidance on a product by product basis so as to establish what the specific requirements will be at the conclusion of the transition period.  Whilst it is anticipated that the majority of organisations can continue “as usual” until January 2022, the new requirements will increase the administrative burdens on businesses and so early preparation is advised.

Importantly, Authorised Representatives and Responsible Persons based in the EU will not be recognised at the end of the transition period.  This applies immediately from 1 January 2021.  If products are to be placed on the domestic market, they must be based in the UK.

You can find details of the new scheme here: https://www.gov.uk/guidance/using-the-ukca-mark-from-1-january-2021.  If you require any support in interpreting the new position as it applies to your business, please do not hesitate to get in touch.

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In place of our usual annual IHL conference in Manchester city centre, we will be offering the following webinars, presented by senior lawyers and partners, remotely via Zoom, each starting at 10am for 45 minutes:

 

17 September 2020

Corporate Insolvency and Governance Act 2020

What are the changes and how does this affect commercial contracts?

 

24 September 2020

Concluding contracts remotely

Avoiding the traps

 

1 October 2020

Changes in regulator behaviours post COVID-19

What to expect in 2021

 

8 October 2020

Contract law update

A review of recent developments and a reminder of the principles of force majeure and frustration

 

To register your place, please email alice.silk@pannonecorporate-com.stackstaging.com. Joining details will be confirmed prior to each webinar.

 

Do not hesitate to contact us if you have any questions.

 

We look forward to seeing you.

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The HSE has issued further detailed guidance for employers struggling to determine whether confirmed Covid-19 cases within the workforce are reportable under RIDDOR. This latest attempt to clarify the position comes after questions were raised as to how employers, already under pressure from the effects of the pandemic, should interpret the legal reporting requirements.

Who must make the report?

RIDDOR requires “Responsible Persons” to report certain matters to the HSE. Typically employers, the self-employed and others in charge of a workplace will fall into this definition depending on the circumstances.

What must be reported?

The HSE has identified three Covid-19 specific circumstances in which a Responsible Person should make a report:-

• an accident or incident at work has, or could have, led to the release or escape of coronavirus. This must be reported as a dangerous occurrence;

• a worker has been diagnosed with Covid-19 attributed to an occupational exposure to coronavirus. This must be reported as a case of disease;

• a worker dies as a result of occupational exposure to coronavirus. This must be reported as a work-related death due to exposure to a biological agent.

How does an employer determine when a report must be made?

The new detail added by the HSE has helpfully (and finally) given some clarity.

Most difficulty appears to have arisen in determining when a case of occupational exposure to the virus has happened. We now know that when deciding whether to report this as a case of disease:-

• a report is only required where it is more likely than not that the work was the source of exposure (rather than general societal exposure);

• a judgment is to be made on available information; there is no need for detailed investigation;

• certain general principles can be used to help make that decision:-

o Did the work being done increase the risk of exposure to covid-19?

o Was there a specific incident that increased the risk of exposure?

o Did the work bring the person directly into contact with a known Covid-19 hazard without effective control measures in place?

• has a medical professional highlighted the significance of work-related factors when communicating a diagnosis?

Interestingly, the HSE has determined that work with the general public, as opposed to work with persons known to be infected, is not considered sufficient evidence to indicate that a Covid-19 diagnosis is likely to be attributable to occupational exposure and such cases do not require a report. This significantly restricts the number of employers impacted by these expanded reporting requirements.

How are reports made?

Reports can be made online by following the instructions at: https://www.hse.gov.uk/riddor/report.htm.
You can also report over the telephone by calling the Incident Contact Centre on 0345 300 9923.

Where can more information be found?

The guidance is available in full on the HSE website. It can be found at:-

https://www.hse.gov.uk/coronavirus/riddor/index.htm
https://www.hse.gov.uk/coronavirus/riddor/riddor-reporting-further-guidance.htm#disease-law

If you need any assistance in understanding how the guidance applies to your organisation, please get in touch with our Regulatory team.

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You are invited to join Pannone Corporate’s Care Quality webinar on 8 July 2020 at 10am.

The Care Quality Commission was, prior to the pandemic, increasingly active in the number of the enforcement actions taken against providers it considered had failed to meet the fundamental standards.

The ongoing presence of COVID-19 has however had a seismic impact on the Commission and its ability to pursue enforcement activity, and the long-term effects of the pandemic on its operations are yet to be clarified.

To examine developing trends within the CQC’s pre-pandemic enforcement activity, and anticipate how these may evolve over the coming months given the ongoing presence of COVID-19, Pannone Corporate made a Freedom of Information request to understand the scope and extent of the Commission’s enforcement actions to date.

This webinar will explore and analyse the results of our Freedom of Information request, as well as offering practical ideas and tools to strengthen and support your future dealings with the CQC and its Inspectors.

We are delighted to be joined by Assistant Coroner, Phil Holden, who will provide you with valuable insight into the sector and explain his views on how inquests may also be affected going forwards.
In addition, you will have the opportunity to put your questions to our expert panel and to discuss topical issues with your peers.

Places will be limited so please RSVP to susan.rigg@pannonecorporate-com.stackstaging.com as soon as possible.

We look forward to seeing as many of you as possible.

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The phrase “cash is king” was used widely after the global stock market crash in 1987 and during the global financial crisis of 2008. No doubt the phrase will also be used frequently in these current challenging times. Whilst many recruitment companies are efficient, well run businesses, one area where potential is not always maximised is pursuing disputed fees. Having an organised and structured process to follow with disputed fees could lead to your business collecting in significant amounts in fees and boosting your profits.

This article looks at some practical steps for you to consider, both in relation to internal steps you can take to reduce the risk of fees becoming disputed, and also in relation to a suggested stage by stage process at the point a fee becomes disputed.

The issue

It’s understandable to see why it’s sometimes easier to let a client ‘off the hook’ when they query a fee, as the everyday life of a recruitment business is fast paced and brings multiple challenges. The situations where we commonly see fee disputes arising are: back-door hires and temp to perm hires. The most common grounds we see raised in fee disputes are: arguments that your terms have not been incorporated and so cannot be relied upon, assertions that your introduction was not the effective cause of the engagement, and, that fee clauses are unenforceable penalty clauses.

Internal measures – prevention is better than the cure

Reducing the scope for fee disputes arising is the starting point. Most importantly you need to be able to show your contract terms apply so you can rely on the fee clauses in the terms. Things to consider to assist with this are:

Training – invest time and resources in training your consultants (including refresher training) on: understanding fully why your terms are so important, what the various provisions are that you’ll need to rely on in disputed fee cases and why, and the best steps to take to optimise your chances of proving the terms apply. This will help prevent mistakes being made (such as old terms being sent out in error).

Email footers – ensure your email footers state your terms apply to any work undertaken. If you take this step and attach a copy of your terms to emails introducing candidates as standard practice, or place a link to the terms in the footer, this will stand you in good stead.

CV footers – you can also include reference to your terms and conditions in the footer of your standard CV templates. This makes it more difficult for an end client to dispute a fee by saying that they did not know the terms applied, or had not seen them.

Process for sending terms – ensure a consistent process for sending out your terms. Ensure terms are provided alongside any CVs sent out and reference the terms in the covering email. It’s much more difficult for a client to say the terms don’t apply if they have been provided with a copy of them and they’ve been specifically referred to in emails.

Keep contemporaneous internal notes – impress on your consultants that they should make notes on your internal computer systems of any calls (they can even do this whilst on the call to save time). Such notes can be invaluable in cases which are litigated to trial, as judges prefer contemporaneous evidence in documents over oral evidence. Instilling a note making habit in your consultants will reap dividends in the long term.

A suggested process when fees are disputed

Whilst the above will help in trying to reduce fees becoming disputed, you should also have a process in place when a client disputes a fee. Firstly, you should have a Business Protection team or strategy in place to monitor circumstances when fees might become payable. This will include: checking Linked-In profiles periodically; monitoring job boards or company job advertisements if they are suddenly removed, indicating a position’s been filled; calling candidates to check in every now and again to establish where they are working; and, if you are suspicious a candidate has been engaged directly, calling the end client to try to speak with the candidate to evidence they’ve been engaged (and keeping a contemporaneous note of any such call!).

A process we’d suggest following with fee disputes is as follows:

Step 1 – gather evidence and assess your position

Step 2 – enter into early dialogue

Step 3 – raise an invoice and send a letter of claim

Step 4 – escalation – draft claim and final warning

Step 5 – commence court proceedings

Step 1 – gather evidence and assess your position – collate evidence to show the candidate has been engaged, such as screenshots of Linked-In profiles and notes of calls made to the candidate and/or the end client. Also review the background facts to establish the strength of your claim and any possible weaknesses at an early stage.

Step 2 – enter into early dialogue ¬– upon a discovery a fee may be due, speak with the end client and ask for an explanation. They may accept it’s a misunderstanding, or you will, at least, be able to understand their position and why they dispute the fee.

Step 3 – raising an invoice and sending a letter of claim – if no resolution has been achieved, send an invoice and a more formal and detailed letter of claim. This can come from you or your solicitor, but the background should be set out with evidence of the engagement, with reference to the terms and say why the fee is due. Further exchanges of correspondence may follow.

Step 4 – further escalation – a draft claim and final warning – if there is still no resolution, you can take steps to prepare a draft court claim. To save on the cost of the court issue fee initially, you can send it in draft form to the defendant to allow one final chance to find a resolution.

Step 5 – commencing court proceedings – the final step is to issue County Court proceedings to recover the sum due. This shows the end client you’re prepared to take matters further and you are essentially calling their bluff. You should note, however, that the majority of matters will settle before trial.

Always consider settlement – Throughout the dispute you should always consider making ‘without prejudice’ offers to settle. This may be a reduced fee, an agreement for the end client to pay in instalments to help their cash flow, or some agreement to apply discounts against future fees. You can be as creative and as flexible as you like in settlement, which should be contrasted with a final trial in the courts, where a judge is only able to determine if a fee is payable or not and therefore any flexibility is lost.

Ensure your terms work for you, not against you – Another issue to bear in mind is the content of your terms themselves. Having terms periodically reviewed and updated to ensure they are as strong as possible is a worthwhile use of resources and can help guard against common defences to fee claims.

Summary

Ultimately, by taking the above steps and getting processes in place, you’re looking to avoid the situation where you simply let disputed fees go without a fight, or you’re putting yourself in as strong a position as possible to succeed if the matter proceeds to a trial in the courts and maximising your chances of achieving an early settlement. Review your existing processes and be prepared to be a bit braver in pursuing fees that are disputed. It could end up bringing in some much needed cash to your business.

Jonny Scholes is a director at Pannone Corporate LLP, an experienced commercial law firm in Manchester. Pannone Corporate’s lawyers have vast experience in the recruitment sector in: commercial drafting of recruitment contracts; dispute resolution (including unpaid fees and breaches of restrictive covenants), employment advice, and corporate advice (including shareholders’ agreements, sales and acquisitions and group restructuring).

Jonny has worked with recruiter clients for over 12 years and has assisted clients recover hundreds of thousands of pounds in disputed fees. His approach is to work collaboratively with his clients to seek a resolution as quickly and cost-effectively as possible. If you have any queries arising from this article, you can contact Jonny at jonny.scholes@pannonecorporate-com.stackstaging.com.

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The 2019 Court of Appeal criminal case of R (The Pensions Regulator) v Workchain Limited (Workchain) serves as a useful reminder of the possible criminal consequences of unauthorised access to a computer system.

Facts

Under the Pensions Act 2008 employers are required to automatically enrol eligible workers into a pension scheme. The employer has to pay pension contributions and to deduct from earnings and pay into the scheme employee pension contributions. An employee, but not the employer, can opt out of the scheme. If this is done within one month of enrolment, then the employer and employee do not have to pay any pension contributions.
Workchain was a recruitment agency which employed temporary workers and provided them to clients for a fee. It used National Employment Savings Trust (NEST) as its workplace pension scheme. Workers are given a unique NEST ID so that they are able to access their data on-line and to enable them to opt out of the scheme if they wish. Employers are not given access to employee on-line data nor are they allowed to opt-out their workers. This is because employers have an incentive to opt out workers to save paying pension contributions. The NEST system was designed to ensure that an opt-out is a free choice of the employee.
However, Workchain was determined to opt out its temporary employees from the NEST scheme after their enrolment. Workchain staff made calls to NEST pretending to be temporary employees in order to obtain their NEST IDs which were later used to access the NEST on-line system and to opt them out. Workchain managed to achieve an opt-out rate of 66% compared to an average of 8%. Some of these opt-outs could be traced back to Workchain senior staff pretending to be a worker to obtain a NEST ID and others originated from a Workchain IP address indicating that they had been made by Workchain staff rather than the temporary workers. NEST became suspicious and the Pensions Regulator was alerted.

The criminal proceedings

The Pension Regulator brought charges against Workchain, its directors/shareholders and various other personnel under s1 of the Computer Misuse Act 1990 (CMA). This sets out that a person is guilty of an offence if:
(a) he causes a computer to perform any function with intent to secure access to a programme or data held in any computer, or to enable any such access to be secured;
(b) the access he intends to secure or to enable to be secured is unauthorised; and
(c) he knows at the time when he causes the computer to perform the function that that is the case.
The focus of this offence is the unauthorised access to computer programmes and/or data. It is committed without the need to prove dishonesty or any intent to use the data for example for further offences or any other purpose. The offence carries a maximum sentence of 2 years’ imprisonment or an unlimited fine on indictment.
In this case all eight defendants pleaded guilty. The two directors were sentenced to four months imprisonment suspended for two years, were directed to perform 200 hours community service and to pay £11,250 costs. Workchain was fined £200,000 with a costs order of £60,930 and a victim surcharge.
Workchain appealed its fine claiming that it was manifestly excessive. For the first time ever the Court of Appeal had to consider how sentences under s1 of the CMA should be determined. The Court decided that the assessment of harm and culpability are the foundation of the sentence. When assessing harm, the Court stated that this is not limited to financial harm. A crucial head of harm under s1 of the CMA is the loss of integrity of the computer system involved in the breach, which was particularly important in this case given that employers are prohibited from having access to the employee pension data. When assessing culpability the reasons for and circumstances of the unauthorised access and the degree of persistence are relevant. The fact that an employer is in a position of trust is also to be taken into account. Previous convictions, particularly of a like sort, are an aggregating factor as may be poor regulatory compliance by the employer. Finally, the sentence imposed should be proportionate which means that the financial circumstances of the offender can affect the fine.
In this case, the financial loss to the employees and the savings for Workchain were small because of the temporary nature of the workforce. However, importantly in addition to the direct financial harm, Workchain’s “manipulation of the on-line system inevitably damaged or risked damaging trust in these systems, and consequently the scheme introduced by the Pensions Act as a whole. It inevitably risked undermining public confidence in the security of personal data in this context and generally, including confidence in the security of the pension funds involved”.
The Court considered Workchain’s culpability to be high. “Its senior employees unlawfully attempted to persuade its workers to opt out and, having failed to do so, pretended to be those workers in order to access unauthorised data for the purposes of defeating the automatic enrolment provisions”. The Court considered Workchain’s offending to be serious and to warrant a substantial sentence.
However, when considering the proportionality of the sentence the Court took into account that the company’s directors/shareholders had been convicted of the same offence and that a fine would in practice fall upon those same individuals as shareholders, the company’s otherwise unblemished record and its general regulatory compliance. With a discount for a guilty plea the Court of Appeal halved the fine imposed from £200,000 to £100,000.

Conclusion

This case demonstrates the wide application of the CMA and the potential criminal liability under it. It requires only for data to be accessed without authority and for it to be known at the time that access is unauthorised. Importantly, there is no need to prove dishonesty or any intent to use the data. Many cases of unauthorised access are for financial gain, but as this case shows even if the sums involved are insignificant the Court can impose significant sentences upon a company, its directors and employees where the offence risks undermining public trust in the security of the data. Companies and their employees should be mindful of this case and ensure, particularly during this time of remote working, that they respect data security controls and limitations on access.
For further information please contact our specialist data protection and regulatory team:

Amy Chandler, Partner, Amy.Chandler@pannonecorporate-com.stackstaging.com
Patricia Jones, Consultant, patricia.jones@pannonecorporate-com.stackstaging.com
Rhian Greaves, Associate Partner Rhian.Greaves@pannonecorporate-com.stackstaging.com
Danielle Amor, Senior solicitor, Danielle.Amor@pannonecorporate-com.stackstaging.com

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The Corporate Insolvency and Governance Bill has now been published.

The key features of the Bill are as follows:

It is currently expected that the Bill will become law in early June.

The full text of the Bill can be found here:

https://publications.parliament.uk/pa/bills/cbill/58-01/0128/cbill_2019-20210128_en_1.htm.

In conjunction with the above, HMRC has also published guidance indicating that it will support temporary payment holidays in the case of individual and company voluntary arrangements and that it will not pursue bankruptcy or winding up petitions for enforcement purposes in the current climate unless it is deemed essential (i.e. where there are allegations of fraud or criminal activity).

We will set out further thoughts on each of the features highlighted above over the coming weeks and as the Bill progresses through parliament.

If you wish to discuss any of the issues referred to above or require further guidance, please do not hesitate to contact Daniel Clarke or Heather Morris.

 

E          daniel.clarke@pannonecorporate-com.stackstaging.com

M         (0)7920 237687

 

E          heather.morris@pannonecorporate-com.stackstaging.com

M         (0)7487549047

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The Covid-19 lockdown restrictions have significantly impacted upon the employer/employee relationship with it being reported that 7.5 million workers have been furloughed.

Longer term effects may be unavoidable as some employers will be forced to make cut-backs to their workforce. As employees move on to join new businesses, or to set-up on their own, one issue which ought to be considered is the risk of misuse of confidential information.

The case of Trailfinders Limited v Traveller Counsellors Limited & Others, which was decided earlier this year, serves as a useful reminder of the way in which the court balances the need to protect confidential information with the risk of inhibiting legitimate competition.

The facts of the Trailfinders case

The Claimant, Trailfinders, is a travel agent with 37 branches in the UK and Ireland, employing over 700 sales consultants. The Second to Fifth Defendants in the case were former sales consultants at Trailfinders who left to join the First Defendant, Travel Counsellors Limited (TCL).

Trailfinders alleged that when the Second to Fifth Defendants left they took with them the names, contact details and other customer information, and that they continued to access Trailfinders’ customer database after the termination of their employment.

Trailfinders claimed that each of the Defendants had misused its confidential information.

What will amount to confidential information?

The Trailfinders’ case helpfully summarises the three classes of information which an employee may obtain through their employment:

  1. The first class of information is that which is obviously not confidential and so not capable of being protected.
  2. The second class of information is confidential information which is acquired during the normal course of employment and which becomes part of an employee’s experience and skills. This is capable of being protected during the term of the employment relationship.
  3. The third class is information which is of the nature of a trade secret (such as a chemical formulae or special method of construction) or which has a high degree of confidence. This is capable of being protected both during the term of the employment relationship, and following its termination.

Implied into every contract of employment is a general duty of good faith and fidelity which restrains an employee from misusing both the second class and third class of confidential information during the term of employment. This duty comes to an end upon termination of an employment contract.

There is a further, narrower implied term in every employment contract not to misuse the third class of information even after the termination of the employment contract.

Second class – is it really part of an employee’s skill and knowledge?

Former employees will often seek to defend their use of confidential information on the basis that it forms part of their skill and knowledge and they are therefore free to use that information following the termination of their employment.

The Trailfinders’ case is helpful to employers in that it makes it clear that:

Third class – what information may be protected after the end of the employment relationship?

Misuse of this third class of information is likely to cause an employer the greatest damage and is therefore capable of being protected even after the termination of the employment relationship.

The Trailfinders’ case helpfully reminds employers of the questions to ask when assessing whether confidential information bears the hallmark of this third class:

The court’s decision in the Trailfinders’ case

The court held that the Defendants had extracted details relating to at least 32 customers from Trailfinders’ databases. The court rejected the Defendant’s assertions that they could have obtained Trailfinders’ customer information from public sources, because they were found not to have done so.

The court held that the former employees and TLC had misused Trailfinders’ confidential information.

Conclusion

The present climate may result in conflicts arising in relation to the misuse of confidential information. The following key points may assist employers in mitigating, investigating and responding to that risk:

For further information on the issues raised in this article please contact Paul Jonson or Sarah Bazaraa.

Contact details:
Paul Jonson
Senior Partner
T (0)7737 571147
E paul.jonson@pannonecorporate-com.stackstaging.com

Sarah Bazaraa
Director
T (0)7920 237599
E sarah.bazaraa@pannonecorporate-com.stackstaging.com

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Introduction

On 1 April 2020 the Supreme Court handed down two significant decisions: Barclays Bank plc v Various Claimants [2020] UKSC 13 (“Barclays”) and WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12 (“Morrisons”).

Although the Supreme Court held that the law has not changed, both cases mark a departure from the increasing scope of vicarious liability (VL) and help provide some certainty.

VL is a doctrine that holds employers liable for wrongdoings committed by employees through the course of their employment.
It is particularly important in civil claims for damages, where it is a common practice for claimants to target the parties with the deepest pockets – usually the employer and its insurance policy.

In order to impose VL, two elements are typically needed:
a) an appropriate relationship between the employer and the wrongdoer; and
b) that the wrongdoing was committed within this relationship

Barclays

In Barclays, Dr Bates was a doctor who worked for a variety of hospitals and insurance companies. He also carried out medical assessments for prospective employees for Barclays Bank plc. Applicants would be told by Barclays that they had to pass a medical examination, and Barclays would arrange the appointments with Dr Bates. Dr Bates was not paid a retainer, but was paid for each report.

Many of the examinees now allege that Dr Bates (now deceased) sexually assaulted them during these examinations and sought to hold Barclays liable under VL. The Supreme Court disagreed.

It was held that there was a distinction between work done for an employer as part of their business and work done by an independent contractor as part of their own business – the crux was whether the wrongdoer was carrying on business on their own account.
The court held that Dr Bates was not sufficiently akin to an employee of Barclays. He carried out work for them, but was not on retainer and was free to refuse work.

Morrisons

In the Morrisons case, an employee published personal information about other Morrisons employees online. He did this because he held a grudge against Morrisons following a disciplinary hearing. Initially, the Court of Appeal held that this action fell within VL but the Supreme Court held that the lower courts had misunderstood VL.

The Supreme Court found that the disclosure of the information was not part of the wrongdoer’s field of activities, that the unbroken chain of causation was insufficient and that motive was highly relevant.

It was also found that the fact that the wrongdoer’s employment gave him the opportunity to commit the wrongdoing was not enough to impose VL.

The wrongdoer was clearly not trying to further his employees business, and the wrongdoing was not closely connected with the job he was authorised to do.

What does this mean?

Barclays examines the kind of relationships which allow VL to be imposed, making it clear that an employer cannot be held accountable for the actions of self-employed contractors.

Morrisons illustrates that VL will not be imposed simply because the wrongdoing is similar to the authorised job. It is also reassuring to know that a ‘personal vendetta’ by an employee will not result in a liability and potential civil claims.

Both of these cases are ultimately good news for employers and help clarify the law surrounding vicarious liability.

Contact details:
Paul Jonson
Senior Partner
T (0)7737 571147
E paul.jonson@pannonecorporate-com.stackstaging.com

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Even before the current pandemic, the healthcare sector faced daily financial and logistical hurdles. Now, not only do you have an unprecedented challenge in responding as a sector to an unexpected global event, but at an operational level you must also keep up to date with almost daily revisions to procedure, amended guidance and evolving regulatory approaches.
To help understand the procedural and regulatory changes which have been (and continue to be) introduced, we highlight below some recent headline developments which we consider will influence on a practical level how you respond to the continuing spread of the disease.

Statutory Notifications
Although the Care Quality Commission (CQC) and Health and Safety Executive (HSE) have suspended routine inspections, both organisations have issued guidance detailing the reporting requirements of COVID-19.

• CQC: you do not need to notify individual coronavirus cases, and need only notify if coronavirus affects the day to day running of your business in that you cannot safely meet the needs of your service users or a utility, fire alarm, call system or other item of safety equipment fails for more than 24 hours. Non-COVID-19 notifications should continue to be submitted, “without delay,” in the normal way.

• HSE: in cases of employee infection, RIDDOR reports should only be submitted where:
an unintended incident at work has led to someone’s possible, or actual, exposure to coronavirus, this must be reported as a dangerous occurrence. The example given by the HSE is a lab worker accidentally breaking a glass vial containing the virus;
a worker dies as a result of occupational exposure to coronavirus; or
a worker has been diagnosed as having COVID-19 (supported by a registered medical practitioner’s diagnosis) and there is reasonable evidence that it was caused by exposure to the virus whilst at work, this must be reported as a ‘disease’. The HSE gives the example of a healthcare professional who is diagnosed with COVID-19 after treating patients with the virus.

The requirement for an actual diagnosis by a medical practitioner before a case can be considered as potentially reportable is helpful. However, there is still room for interpretation over what amounts to, “reasonable evidence,” that the virus was contracted at work, with huge reliance being placed on any commentary from the diagnosing doctor as to the circumstances of transmission (which may or may not be available, or forthcoming).

Like all government agencies, the HSE is doing its best to keep pace with the pandemic. It accepts however that as the prevalence of the disease increases, it will be difficult for employers to establish whether or not an infection was contracted as a result of their work.

Going forwards all employers with open workplaces need to remain updated and alive to the potential need to report diagnosed cases.

Inquests
The spread of COVID-19 has had a significant impact on the court system. Mirroring procedural changes introduced within the mainstream judiciary, the Chief Coroner has produced a number of Guidance Notes in an effort to both limit the number of physical hearings taking place, as well as protect court staff.

At a practical level, COVID-19 is an acceptable (direct or underlying) cause of death for the purposes of the Medical Certificate of Cause of Death. Therefore the fact that an individual may have died as a result of COVID-19 is not, on its own, a reason to refer a death to the Coroner. There may however be other circumstances relating to such a death which do nonetheless justify referral and further investigation by the Coroner.

For those deaths which do proceed to inquest, the Coronavirus Act 2020 has suspended the requirement for a jury inquest even though COVID-19 is a notifiable disease.

The decision as to whether ongoing cases can continue to be heard is ultimately at the discretion of the senior coroner for each area. However the Chief Coroner has suggested that:
• no physical hearing should take place unless it is urgent, essential business and that it is safe for those involved for the hearing to take place. For example, any jury inquest, “of significant length,” listed to start between 31 March and 28 August will be adjourned. Currently those hearings listed from 1 September onwards should remain in the list;
• any hearings that do take place should be public and conducted in court; and
• coroners should, where feasible, use technology (including telephone and video-conferencing applications) to enable the participation of all Interested Persons and their representatives.

The full Guidance Note can be found at:
https://www.judiciary.uk/wp-content/uploads/2020/03/Chief-Coroner-Guidance-No.-34-COVID-19_26_March_2020-.pdf

Resident Admissions
Current Public Health England (PHE) advice permits service users to be admitted to a care home from a domestic setting. Whilst some may have COVID-19, PHE considers that such patients can be safely cared for if all other relevant guidance is followed.

If an individual has no COVID-19 symptoms, or has tested positive for COVID-19 but is no longer showing symptoms and has completed their isolation period, care can be provided as normal.

This advice does not overrule your general obligation to consider whether you can safely cater for a specific individual’s needs. That assessment must still be undertaken in respect of all new admissions in the normal way.

In respect of admissions from hospital, the onus is on the relevant Discharge Service to clarify with the receiving setting the COVID-19 status of an individual, as well as any symptoms observed during the transfer process.

Whilst national testing for the disease remains limited some hospital inpatients will qualify, for example those receiving critical care for pneumonia. However negative tests are not required prior to an individual’s transfer to a care home.

Further guidance can be found at the following link:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/878099/Admission_and_Care_of_Residents_during_COVID-19_Incident_in_a_Care_Home.pdf

Personal Protective Equipment (PPE)
A dedicated helpline has been established for organisations who have immediate PPE supply concerns. The contact details are: 0800 915 9964, or supplydiruptionservice@nhsbsa.nhs.uk

PHE has issued, and regularly updates, its guidance as to the appropriate use of PPE by those working in the sector and for those undertaking specialised or nursing care, specific guidance is available at:

https://www.gov.uk/government/publications/wuhan-novel-coronavirus-infection-prevention-and-control/covid-19-personal-protective-equipment-ppe

For those providing care to service users who are known to be possible or confirmed COVID-19 cases, specific PPE recommendations are provided. For other individuals an assessment is recommended, to be undertaken remotely if possible, to ascertain whether the individual meets the case definition for possible/ confirmed COVID-19 before care is delivered. If an individual is symptomatic and meets the case definition, appropriate PPE should be worn prior to care.

Current guidance states:
• Aprons and gloves remain subject to single use in accordance with Standard Infection Control Precautions.
• Respirators, fluid-resistant surgical masks, eye protection and long-sleeved disposable fluid repellent gowns can be subject to single sessional use, each session ending when the care worker leaves the clinical care setting or exposure environment.
• Once removed, all PPE should be disposed of safely.

In addition, users of face masks should be aware of the HSE’s guidance on face fit testing, full details of which can be found at:
https://www.hse.gov.uk/news/face-mask-ppe-rpe-coronavirus.htm

Medicines
The CQC recognises that the dispensing and checking of Multi-Compartment Compliance Aids (MCAs) is labour-intensive and that pharmacies may withdraw this service during the pandemic. If your supply changes from MCAs to original packs, the CQC recommends that you review and update your risk assessments, policies and procedures, staff training and competency assessments in response.

The key message is that all staff must understand how to administer medicines safely and in a manner which allows for continuity of care.

Additional advice, including in relation to the delegation of tasks to care workers from healthcare professionals, is available at:
https://www.cqc.org.uk/guidance-providers/adult-social-care/covid-19-medicines-information-adult-social-care-providers

DBS Checks
The CQC has issued interim guidance for recruiting staff and volunteers as a consequence of (and during) the pandemic and where the following three factors apply:
– you need staff to start urgently;
– waiting for a full DBS check could cause undue delay; and
– this delay could lead to risks in continuity of your service and impact the safety and wellbeing of people using it.

For emergency roles, you will be able to make use of a fast (and free) Barred List check and, whilst Enhanced Check information will still be processed, this will be issued subsequently.

Helpfully the CQC has confirmed that if employers take reasonable steps to ensure that new staff are recruited in line with the above guidance, they continue to be adequately supported and appropriately supervised and that service users remain safe, it will, “not take a punitive approach.” This means that so long as you record the decisions taken in respect of staff recruitment, together with any risks identified and mitigating control measures, this is likely to influence whether enforcement action is taken in respect of similar breaches in the future.

The CQC’s full advice can be found at:
https://www.cqc.org.uk/guidance-providers/all-services/covid-19-interim-guidance-dbs-other-recruitment-checks

Staff appointments which are not as a result of COVID-19 must continue to be processed in the usual manner.

Conclusion
Despite the relaxation of some regulatory requirements, you need to be mindful that matters potentially of interest to the regulators (and unrelated to COVID-19) will continue to occur. It is imperative therefore that you continue to abide with your pre-existing regulatory and professional obligations to ensure the safety and well-being of both your service users and employees.

A summary of the CQC’s advice, relating to all aspects of social care, can be found at the following link:
https://www.cqc.org.uk/guidance-providers/adult-social-care/information-adult-social-care-services-during-coronavirus-outbreak#restricting-visitors

Should you require any assistance in interpreting or applying current guidance, then please do not hesitate to contact us.

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There has been an emerging trend for individuals to sue for compensation for breaches of the GDPR including after cyber-attacks. Two recent cases give important guidance to controllers on the extent to which they may be liable for a data protection breach.
WM Morrison Supermarkets Plc v various Claimants
This is a recent Supreme Court decision which importantly found that the employer, Morrisons, was not vicariously liable for breach of data protection law committed by an employee.


The employee (S) was a senior auditor who as part of his job was given access to the payroll data of the whole workforce. Unbeknown to Morrisons S harboured a grudge which led to him copying and uploading the data of nearly 100,000 employees to a publicly accessible file sharing site as well as sending data to various newspapers. S took extensive steps to cover his tracks but was eventually caught and imprisoned. Morrisons spent more than £2.26 million in dealing with the aftermath of the disclosure.
A group action for damages was commenced by 9,263 employees/former employees who alleged they had suffered distress because of the disclosure. If successful Morrisons faced potential claims from all the affected individuals, so its potential liability was significant. In both the High Court and the Court of Appeal, Morrisons was found not to be directly liable for the disclosure. However, it was found to be liable on a vicarious basis as the employee was considered to be acting in the course of his employment when he made the disclosure. Fortunately for Morrisons, the Supreme Court overturned this decision.


The Supreme Court considered that the key question to establish vicarious liability is whether the disclosure of the data was so closely connected with acts that the employee was authorised to do that, for the purposes of the employer’s liability to third parties, the employee’s wrongful disclosure may fairly and properly be regarded as done by him while acting in the ordinary course of his employment. In this case the Court considered that the employee was not engaged in furthering the business of his employer when he committed the wrongdoing but rather was pursuing a personal vendetta. His wrongful conduct was not so closely connected with acts which he was authorised to do that it could fairly and properly be regarded as done by him while acting in the ordinary course of his employment so as to establish vicarious liability.


This marks a welcome decision for employers, particularly as the Court of Appeal and court of first instance had previously found Morrisons to be vicariously liable for S’s actions. However, it is important to remember that where an employee is processing data on behalf of their employer, the employer is directly liable for any non-compliance with the data protection legislation. Employees should be trained on data protection and compliance monitored. An employer who fails to put in place appropriate security measures to guard against unlawful disclosure and/or data loss which causes or contributes to a disclosure will also be liable under the GDPR.


Atkinson v Equifax Ltd
This case relates to a significant cyber-attack on Equifax US in 2017. Mr Atkinson brought a representative civil action seeking, according to his solicitors, compensation of £100 million on behalf of 15 million affected customers. He claimed damages for “loss of control” of his data. This followed the Court of Appeal judgement in Lloyd v Google which found that damages can be awarded for loss of control of data, even if there is no pecuniary loss or distress. Equifax Limited had already been fined £500,000 by the ICO, the maximum amount for a pre-GDPR breach, so the civil action represented further significant liability.


It has recently been reported by the barrister team acting on behalf of Equifax that, following service of the defence, Mr Atkinson is withdrawing his representative action and his solicitors have accepted that Equifax is entitled to recover its costs The defence is said to have challenged the correctness of Lloyd v Google and its application to a cyber-attack case and must have been persuasive to lead to the withdrawal of the claim.
It will be interesting to see whether this leads to a downturn in the number of class-action type claims brought by groups of individuals for damages following a cyber-attack. Lloyd v Google has also been appealed to the Supreme Court so further developments on “loss of control” damages are expected.


Conclusion
The potential fines for non-compliance with the GDPR have attracted headlines. However, there can also be potential liability to pay compensation to individuals for a data protection breach. For breaches that affect a large number of individuals this can be a significant additional liability. Whilst the Morrisons and Equifax cases demonstrate that there may be some limitations on such compensation claims, we await to see what effect they will have on the market for compensation claims.
If you require any further information or assistance please contact our specialist data protection team:


Amy Chandler, Partner, amy.chandler@pannonecorporate-com.stackstaging.com
Patricia Jones, Consultant, patricia.jones@pannonecorporate-com.stackstaging.com
Danielle Amor, Senior Associate, danielle.amor@pannonecorporate-com.stackstaging.com

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The Information Commissioner’s Office (ICO) has recently set up an information hub on its web site (https://ico.org.uk/global/data-protection-and-coronavirus-information-hub/) giving helpful guidance on data protection compliance in these difficult times.

Regulatory action

Organisations may be concerned that they are no longer meeting their usual standards of data protection compliance because resources are being necessarily diverted elsewhere. The ICO has confirmed that it “won’t penalise organisations that we know need to prioritise other areas or adapt their usual approach during this extraordinary period.” Whilst the ICO is unable to extend the statutory time limits which apply to subject access requests (SARs) and other data protection rights of individuals, it will tell people that they may experience delays.

COVID-19 does not mean that organisations can ignore data protection legislation. You should still try to comply as much as possible. Keep a record of decisions made and the reasons for them, in case of scrutiny afterwards. You should continue to try to respond to SARs keeping individuals informed and updated on the response and likely time-scales.

Security measures for homeworking

The ICO confirms that data protection law does not prevent home working or staff from using their own device or communications equipment. However, the same kinds of security measures are needed as are used in normal circumstances.

Can you tell staff that a colleague may have contracted COVID-19?

Organisations should keep staff informed about cases, but individuals should not be named. The ICO states you should only disclose necessary information as required to satisfy your health and safety obligations and duty of care to staff.  

Can you collect COVID-19 information from employees or visitors?

You have an obligation to protect employees’ health but that this does not mean you can collect lots of information about them. The ICO suggests asking people to tell you if they are experiencing COVID-19 symptoms, advising staff to call 111 if that is the case and asking visitors to consider government advice before they decide to come. If specific health data is still needed then only collect what is necessary and ensure it is appropriately safeguarded. This includes keeping it secure and restricting access to it on a “need to know” basis.

Can you share employees’ health information with the authorities for public health purposes?

Yes, although the ICO considers it unlikely that you will need to share information about specific individuals.

Community groups

This crisis has demonstrated community altruism and groups are springing up to help the vulnerable and those self-isolating. The ICO has a dedicated blog on its web site for these groups.

We understand that there are data protection challenges in this time of crisis. If you require any further information or assistance in complying with data protection obligations please contact our specialist data protection team:

Amy Chandler, Partner, amy.chandler@pannonecorporate-com.stackstaging.com

Patricia Jones, Consultant, patricia.jones@pannonecorporate-com.stackstaging.com

Danielle Amor, Senior Associate, danielle.amor@pannonecorporate-com.stackstaging.com

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As a further measure to assist employers during the Coronavirus crisis, the Government is making a temporary change to the rules on statutory holiday so that where it is not reasonably practicable for a worker to take some, or all, of the holiday to which they are entitled due to the coronavirus, they will have the right to carry 4 weeks of that holiday entitlement into the next 2 leave years.  If a worker leaves their job or is dismissed during the 2 year period, they must be paid in lieu of any untaken holiday.

The Government says this measure will ensure all employers affected by COVID-19 have the flexibility to allow workers to carry over leave at a time when granting annual leave could leave them short-staffed in some of Britain’s key industries, such as food and healthcare. Acas however envisages additional situations when this carry over might be used, citing employees who are self-isolating or are too sick to take holiday before the end of their leave year, or who have been temporarily sent home as there’s no work (‘laid off’ or ‘put on furlough’).

It is correct that employees cannot be required to take holiday whilst they are off sick (although they can choose to do so). The issue of holiday whilst on furlough is less clear. Holiday is not covered in the Government’s guidance about the job retention scheme so it is not clear whether employees can take holiday whilst on furlough and, if they do, what they should be paid. There seems no reason why employees cannot be asked to take holiday during a period of furlough however until we have further guidance, employers should ensure there is a gap of at least three weeks between any periods of holiday taken during a period of furlough so that employees remain on furlough for the minimum period of three weeks on each occasion.

If you need a furlough agreement or a home working policy for your staff, or advice and guidance on the impact of the Coronavirus in your workplace more generally, please contact Fiona Hamor.

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Introduction
The Government has recognised the COVID-19 pandemic as a “significant challenge for the entire world” and has now taken decisive statutory action, enacting the Coronavirus Act 2020 (“the Act”).
Of particular interest to those in the landlord and tenant sector are sections 81 – 82 of the Act which cover both residential and commercial tenancies and apply to both England and Wales. This note summarises the key takeaways from the Act and the likely effects on both landlords and tenants.

Residential Tenancies
Section 81 of the Act makes various amendments to the Rent Act 1977, Protection from Eviction Act 1977, Housing Act 1985, Housing Act 1988 and Housing Act 1996.
The effect of the amendment is that the time period that a landlord must give to its tenant in any of the relevant statutory notices served in line with these Acts as a precursor to possession proceedings has now been increased to three months. There is scope for this period to be extended up to a maximum of six months by the Secretary of State. The amendment is time limited, only having effect until 30 September 2020, although official Government guidance has already indicated that this is subject to review and may be extended by secondary legislation.
In alignment with section 81 of the Act, the Master of the Rolls has issued Practice Direction 51Z, which suspends all possession proceedings under Part 55 of the Civil Procedure Rules from 27 March 2020 for a period of 90 days. This means that any ongoing litigation with the Court where a landlord was seeking possession of a property (as well as any proceedings seeking to enforce an order for possession already obtained) are now stayed. As with section 81 of the Act, PD 51Z is time limited, only having effect until 30 October 2020.
In further official guidance published over the weekend, the Government “strongly advise” against landlords continuing with present claims or commencing new action seeking possession during the pandemic “without a very good reason”. Unfortunately, the Government stop short at outlining what constitutes “a very good reason”.
In these unprecedented times, landlords should take steps to communicate with tenants who may find it difficult to meet their ongoing obligations. As possession proceedings are effectively suspended during this period, it would be prudent to have sensible conversations with tenants as regards the payment of rent. As an example it may be possible to agree to longer term payment plans to assist were possible.
The same applies to tenants; if you are suffering financial hardship due to the current COVID-19 pandemic, actively engage with your landlord to see if there is a way to come to a mutually beneficial agreement during these tough times. Burying your head in the sand and allowing rent arrears to accrue will only leave you exposed to enforcement action further down the line.

Commercial Tenancies
Section 82 of the Act deals with commercial tenancies; the Act confirmed that this section applies to any tenancy which has security of tenure for the purposes of the Landlord and Tenant Act 1954, or would have such protection if it had not been contracted-out.
The key headline is that a landlord cannot exercise a right of re-entry or forfeiture for non-payment of rent from 27 March 2020 until 30 June 2020, referred to in the Act as the “Relevant Period”. As for any ongoing litigation based on forfeiture for rent arrears, the tenant cannot be evicted until the end of the Relevant Period. Again, as with the provisions affecting the residential sector, the Secretary of State has the power to extend the Relevant Period.
This will provide relief for commercial tenants whose businesses have been forced to close following the strict restrictions imposed by Government on “non-essential businesses”, resulting in cash flow halting almost overnight in some cases.
It is important to note that the suspension of the right to forfeit does not create a rental holiday for commercial tenants; any rent which falls due in the Relevant Period will still payable by the commercial tenants. However, the likely effect of the provisions will result in a rent deferment in many instances as landlords have lost their key weapon for enforcing non-payment of rent.
Another piece of good news for landlords is that the Act makes it clear that no conduct by or on behalf of a landlord during the Relevant Period is to be regarded as waiving the right to forfeit for non-payment of rent (unless specifically waived in writing). This will preserve the landlord’s right to instigate forfeiture proceedings once the Relevant Period has come to an end.
The commentary above regarding parties communicating is equally as applicable to commercial tenancies. There is considerable merit in considering conversations in which the parties can discuss options, including:-
 accepting monthly payments instead of quarterly payments;
 offer a rent deferment (e.g. the March quarter’s rent becomes payable at the same time as the June quarter);
 offer a rent discount (e.g. reduce to a concessionary level for one or more payment periods); and
 offer a rent free period.
The above proposals will certainly ease the short-term financial pressure on commercial tenants. Even if no formal agreement is in place, it would certainly be wise for tenants to pay what they can towards the rent to ensure that any arrears that build over the next few months do not become unmanageable (leaving the tenant exposed to forfeiture action once the Relevant Period expires).
From a landlords’ perspective, they will have to carefully consider how they are to implement any agreements between the parties; any side letters must be carefully drafted so they accurately reflect the terms agreed and executed correctly so they can be relied upon.

Conclusion
In the current economic climate, the reality is that both parties are likely to suffer financially in the short-term. Having early conversations could help mitigate losses and build solid relationships between landlord and tenant, which will survive the COVID-19 pandemic and result in long-term connections that ultimately prove prosperous for both landlord and tenant.


Pannone Corporate
31 March 2020

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https://www.ioshmagazine.com/2020/03/27/coronavirus-and-law-faqs

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1. Are we still entitled to require employees to attend the workplace?

The Government announced on 23 March 2020 that all members of the public must stay at home, except in very limited circumstances. This means that all employees must be permitted to work from home where possible. The Prime Minister said “Travelling to and from work [is permitted], but only where it is absolutely necessary and cannot be done from home“. 

Therefore, you can require employees to attend work provided their work cannot be done from home.  However if employees are capable of doing their work from home but you would prefer to have them in the office, it may be a breach of the implied term of mutual trust and confidence to require attendance in light of the current Government guidance.  An employee in this situation may choose to resign and claim they have been constructively dismissed. Further, it may be automatically unfair to dismiss an employee who refuses to come into the office because they are concerned about the risk of catching the virus.

2. Where an employee falls into the category the government has identified as ‘extremely vulnerable’, can we require them to come into work if their role cannot be carried out remotely?

The Government has identified a limited category of people who are considered to be “extremely vulnerable” and should be “shielded”.  In summary these are:

These individuals are strongly advised to stay at home at all times and avoid any face-to-face contact for a period of at least 12 weeks.

If you have employees who fall into one of the categories above and their work cannot be done from home, you should not require them to attend work.  

The recently published Government guidance on the Coronavirus job retention scheme says that these employees can be furloughed however it is likely that this will only be the case where there is no work for that employee to do so they would otherwise have been laid off.

3. Where an employee can’t work from home and doesn’t wish to attend work, what should they be paid?

Only employees who are ill, self- isolating because they live in the same household as someone who has symptoms of the virus will be entitled to SSP.

Any other employees who don’t wish to attend work (however understandably) and can’t work from home are not entitled to SSP and not entitled to be paid their normal salary either as it is their choice not to come to work. It is up to you whether you continue to pay full salary, ask/allow them to take holiday or require them to take unpaid leave.

In the case of pregnant employees, where the nature of their role means that they cannot work from home and there is no suitable alternative work available that they could do from home, you should consider suspending on full pay in accordance with regulation 16(3) of the MHSW Regulations.

4. What about working parents whose children are off school due to the school closures?

Employees have the right to take unpaid time off to deal with an emergency involving a child or other dependent.  However the right is limited to allowing parents to put alternative arrangements in place and will not cover the extended period needed in this situation.

Employees also have a right to take unpaid “parental leave” to look after a child up to their 18th birthday.   Each parent can take up to 18 weeks for each child in blocks of a week at a time with a maximum of 4 weeks a year for each child. Only employees (not workers) are entitled to unpaid parental leave and only if they have worked for you for a year or more and have parental responsibility for the child. This includes step-parents who have parental responsibility. Normally employees must ask for such leave 21 days in advance however it would be reasonable to waive this notice requirement in the circumstances.

It is also open to you as an employer to simply agree that an employee may take unpaid leave for this purpose.  Alternatively, parents may choose to take annual leave in this situation, subject to your approval.

If you require employees to take holiday or unpaid leave in this situation, there is a risk of indirect sex discrimination. Women are more likely than men to be disadvantaged by the operation of this policy in the current situation because (it is judicially recognised) they tend to take the lion’s share when it comes to caring responsibilities. You may therefore have to justify this approach as a proportionate means of achieving a legitimate aim.

You should make sure therefore that you explore any alternative working arrangements which may avoid the need to take unpaid leave or holiday, such as flexible working hours or a change to duties, before any decisions are made.

5. What about working parents who can work from home but who you suspect are not being productive due to their childcare responsibilities?

You are entitled to require that an employee who is being paid to work from home carries out his full duties and responsibilities, although in the current situation, you may want to take a more flexible approach to the way in which employees carry out their duties.

If you have evidence that an employee is not working from home as they should, you should discuss this with them by telephone. If the problem is their childcare responsibilities, you should discuss the options above.

6. Can we lawfully conduct temperature checks on employees, workers or visitors?

You cannot require an employee, worker or visitor to your premises to undergo a medical examination without their consent. This would include taking temperatures.  Where an employee refuses to have their temperature checked you may refuse entry to the premises, but only where there is a compelling reason for doing so, such as the risk of contact with shielded individuals.

Making a record of the temperature check results entails processing special category personal data which is only lawful in very limited circumstances. The Information Commissioner’ Office has published guidance on data protection and Coronavirus which confirms that “if you need to collect specific health data, don’t collect more than you need and ensure that any information collected is treated with the appropriate safeguards.”

7. Do employees have the right to be notified if colleague/customer develops the virus?

Employees must be notified of any infection risk as soon as possible however you shouldn’t provide more information than necessary and the identity of employees who have contracted the virus should not be disclosed. You should simply advise that an employee who has been in the workplace has been infected and set out any additional precautionary measures that you will be taking to protect employees or that employees should be taking to protect themselves.

8. In what circumstances is Statutory Sick Pay (SSP) payable?

SSP is now payable to:

and who is unable to work as a result.

Employees who are healthy but have been instructed to self-isolate may be able to work from home. If this is an option, they should receive normal pay rather than SSP.

9. What about requiring a ‘fit note’?

For absences up to 7 days, employees should self-certify as usual.  Where the absence exceeds 7 days, employees can now obtain online self-isolation notes to evidence that they have been advised to self-isolate due to the coronavirus. The notes can be accessed from NHS 111 online (https://111.nhs.uk/isolation-note).

Keep in mind that employees who are sick for reasons not related to the coronavirus may struggle to obtain a ‘fit note’ given the closure of GP surgeries. You should therefore be flexible with an employee in this situation and use your discretion when requiring medical evidence.

10. What are the changes to SSP?

The following changes have been made to the SSP scheme:

The legislation for the above changes is not yet in effect however it is advisable that you make a record of any absences relating to the coronavirus (if you are not doing so already), so that you can easily identify those periods of absence which will qualify.

11.  Can we change our enhanced sick pay scheme to provide that only SSP is payable in the event of absence due to coronavirus?

This will depend on whether enhanced sick pay is a contractual right or a discretionary benefit.

Where there is a contractual right to enhanced sick pay, whether express or implied by custom and practice, to amend entitlement will amount to a variation of contract which you can only do with the agreement of employees.

Where enhanced sick pay is genuinely discretionary you can exercise discretion not to pay in the event of coronavirus related absence.

12. Should coronavirus sickness/self-isolation be disregarded when taking account of periods of absence for sickness triggers?

If you have a sickness trigger policy, you may want to consider informing all employees that a period of absence caused by coronavirus, whether because of infection or due to self-isolation in accordance with Government guidance, will be disregarded for the purposes of the absence threshold at which formal action is taken under the policy. A dismissal based on coronavirus related sickness absence may be unfair.

You should also bear in mind that employees with disabilities such as auto-immune conditions, respiratory conditions or diabetes, are likely to suffer more severe symptoms (and therefore take greater time off work) if they catch the virus, or may be more likely to self-isolate due to the potential risks of catching the virus. To avoid any potential disability discrimination issues arising, you should consider disregarding coronavirus absence for such employees.

13. Can holidays be used during periods of coronavirus sickness absence?

Workers are entitled to take statutory annual leave during sickness absence so workers who wish to take annual leave during a period when they would otherwise receive only SSP may be allowed to do so. 

Workers cannot however be compelled to take annual leave during sickness absence and must be allowed to reschedule a period of holiday which falls within a period of sickness absence should they wish to do so.

It is likely that the same principle would apply to someone who is absent because they have been forced to self-isolate (i.e. someone who qualifies for SSP).

14. Can we cancel a worker’s annual leave?

You are entitled in your employment contract to require workers not to take statutory annual leave on certain dates.

In the absence of any such contractual right, an employer may refuse a worker’s holiday request by serving a counter-notice. This must be given at least as many calendar days before the date on which the leave is due to start as the number of days which the employer is refusing.

Unless your employment contract provides otherwise, you must give notice of this requirement which is twice the length of the period of leave to be taken.

15. Is a healthy worker entitled to reschedule holiday?

In light of the current restrictions on movement, many workers are seeking to reschedule periods of holiday to a date later in the year.  It is up to you whether you allow employees to reschedule and it may be beneficial to require employees to take their holiday as planned, or even to give them notice of your requirement to take some of their holiday, during this period.

If you allow employees to reschedule holiday you may face operational difficulties later in the year when everyone wants to book their holiday at the same time.

16. Can we withdraw offers of employment or delay start dates for new recruits in light of the coronavirus outbreak?

If a new recruit has accepted an unconditional offer of employment, there is a binding contract of employment so you would have to serve contractual notice to terminate the contract.The amount of notice pay due will depend on how much of the notice period falls after the agreed start date.

Whilst it would be a breach of contract to impose a varied start date, you can agree this with a new recruit as an alternative to giving notice.

17. What do we know about the furlough scheme in light of the latest Government guidance?

The Government’s guidance is detailed but leaves a number of questions outstanding, such as whether the scheme applies retrospectively to those who have already been laid off without pay, and whether furlough leave could be rotated amongst employees provided each employee is off for a period of at least three weeks.  Here is what we do know:

Overview

Who does it apply to?

How will it be paid?

Employers may choose to top up employees’ wages to 100%, but there is no obligation to do this.

What are the conditions?

https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme

18. What is the new Emergency Volunteering Leave (EVL)?

EVL is a new form of statutory unpaid leave. Employees will be able to take a maximum of four weeks leave in any 16-week volunteering period. This is unpaid leave, but otherwise terms and conditions continue as normal. Employees have the right to return to work on the same terms etc. at the end of the leave and are protected against detriment and dismissal for taking the leave. To take EVL, an employee must be certified as an emergency volunteer by an appropriate authority. A compensation scheme will be set up to cover any losses employees incur taking the leave. Certain employees will not be eligible for EVL, for example, if they work in the emergency services or where their employer employs 10 or fewer employees.  

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The Government’s furlough proposals are aimed at helping businesses to survive the COVID-19 crisis.  The proposals are still in outline form.

Further guidance can be found by following these links.

https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19/covid-19-support-for-businesses#support-for-businesses-through-the-coronavirus-job-retention-scheme

https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19/covid-19-guidance-for-employees#furloughed-workers

If you would like more advice on any of the issues raised above or in our Coronavirus FAQs (read here), please do not hesitate to get in touch with us.

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Covid-19 is raising a number of legal issues in addition to a host of other problems. We set out below a practical analysis of the relevant law.

Force Majeure

As ‘force majeure’ is not defined in statute or case law, contractual clauses are interpreted by looking at their precise wording under the regular principles of contractual interpretation. Some contracts attempt to include “force majeure conditions” without going further but English courts have concluded these are too uncertain and found them void.  It is important to understand that the English courts will not imply a force majeure clause.

The courts have also held that where a clause states that a force majeure event must “prevent” a party from performing its duties (or render it unable to do so), then it must be impossible for the parties to perform the duties – not just more costly or most difficult.

On the other hand, the courts have found that where a clause states that a force majeure event must “hinder”, “impede”, “impair” or “delay” a party in the performance of their duties, the performance only needs to be significantly more onerous.

Parties to a contract can claim force majeure even if the event was not unforeseeable, but a party cannot claim if the event was caused by their own negligence. It was also decided in a recent case that a force majeure clause will only apply if the force majeure event was the only cause of a party’s non-performance.

A party to a contract seeking to excuse non-performance under the contract by relying on a force majeure provision must demonstrate that:

Where the force majeure event definition includes a list of specific events, followed by a catch-all phrase (such as “any other cause beyond the parties reasonable control”) the catch-all phrase will not be qualified by the list and will keep its wide meaning.

Force Majeure and Epidemics

Deciding if Covid-19 would trigger a force majeure clause in a contract will be determined on a case by case basis by looking at the wording of the contract. It is likely to be triggered if the definition of a force majeure event includes words such as “epidemics” or “diseases”.

If such wording is not included, parties may have to rely on more generic language in order to classify the Covid-19 outbreak as a force majeure event.

Examples might include “outbreak”, “crisis” or “government action”.

It may be worth noting that the China Council of the Promotion of International Trade (an international trade promotion agency in China) is currently issuing force majeure certificates to Chinese businesses struggling under the effects of the outbreak.

Frustration

As stated the courts will not imply a force majeure clause where one is not included in the contract, but the concept of frustration may apply.

Put simply, if after the formation of a contract an event occurs that makes it impossible to perform a fundamental obligation of the contract OR makes a fundamental obligation radically different to how it was imagined when the contract was entered into, then the contract will be frustrated and therefore automatically terminated.

Usually the threshold for proving frustration is higher than the standard required by force majeure clauses.

Some (non-exhaustive) examples of situations where a party cannot claim that a contract has been frustrated include:

The 2019 case Canary Wharf (BP4) T1 Ltd v European Medicines Agency shows how difficult it can be to prove frustration. In this case, the European Medicines Agency (the EMA) tried to convince the High Court that its 25 year commercial lease was frustrated as, after Brexit, they were required to move their headquarters from London to Amsterdam. The court held that it was foreseeable to both parties when the lease was agreed that EMA may need to leave the premises during the term and had included provisions allowing the tenant to assign or sub-let the lease during its term. Therefore, it was found that Brexit did not radically alter the EMA’s performance of the contract as it still had the ability to assign or sub-let the lease. The parties, despite not foreseeing Brexit, had foreseen the possibility of the tenant wishing to leave the premises during the term AND had included provisions for this by including an assignment/sub-letting clause.

Covid-19

It is of course difficult to predict the possible impact of Covid-19, but the fact of an outbreak can longer be characterised as “unforeseen”. Under English and Welsh law, if a contract is silent on whether the force majeure event needs to be unforeseen, the court will be reluctant to impose the qualification.

The current outbreak may impact the performances of countless contracts, not rendering them impossible but more difficult or more expensive to perform. Under English and Welsh law, there is no implied right to renegotiate a contract – the right to renegotiate would need to be specifically drafted into the contract. Even if it was included, courts are very reluctant to hold parties to an “agreement to agree” as this is too uncertain as to be enforceable.

Practical tips

19 March 2020

Paul Jonson
Senior Partner
Email: paul.jonson@pannonecorporate-com.stackstaging.com
DDI: 0161 393 9035
Mob: 07737 571147

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The World Health Organisation has now classified the coronavirus COVID-19 as a public health emergency of international concern.  European countries have advised protective measures to encourage social distancing, with Italy going so far as a total lockdown. The international reaction is already putting a strain on supply chains into the UK and, with the likelihood of similar protective measures being introduced by the British Government over the coming weeks, where does that leave Employers and Contractors engaged on active construction projects?

The key question will be: Who carries the risk for such an event delaying the project or preventing its completion? The place to find the answer, so far as can be ascertained, given that this is such a new phenomenon, will be in the written form of contract between the parties.

NEC

The terms of unamended NEC3 and NEC 4 are likely to provide compensatory protection for Contractors for delays and for additional costs incurred as a result of the impact and effects of COVID-19. Clause 60.1(19) includes, as a Compensation Event, an event which:

In order to benefit from this provision the Contractor will only have the right to seek an extension to the completion date and/or to seek additional costs if it complies with the strict condition precedent for notifying a Compensation Event.  Under the NEC Main Contract, the Contractor must give notice of an event within 8 weeks of becoming aware that the event has happened.  For Sub-Contractors also working under NEC 3 or NEC4, they should note that their notice period is only 7 weeks.

If notice is not given within this time period, the right to any change to the price or the completion date is lost.

It will also be necessary to check the completed Contract Data to ascertain if the risk allocation for such an event precludes either an entitlement to an extension to the completion date or to associated costs. In any event, an early warning notice should be given, by one or other of the parties, as early as possible in order that the parties can engage in discussions to manage and reduce the impact of COVID-19 before either party is required to take more draconian steps to best protect themselves.

In terms of the Employer’s options, the Project Manager can instruct the Contractor to stop work for up to 13 weeks under unamended NEC, before either party can seek to terminate the contract under clause 91.6. Such instruction would be a Compensation Event giving rise to a Contractor’s right to an extension and to additional cost.

The Employer only also has a separate right to terminate under clause 91.7 for an event which stops the Contractor completing the works or is forecast to delay completion by more than 13 weeks and which neither party could have prevented and which an experienced contractor would not have judged as occurring when entering into the contract.

JCT

Under unamended JCT the position might not be so clear.  The specified Relevant Events, which give rise to a right to an extension of time for completion, include, at clause 2.26.14, ‘force majeure’ but which term is not defined and currently has no recognised meaning under English Law.

Force majeure is generally understood to cover an event or circumstance beyond the control of either party, and so, on a reasonable interpretation, a proven adverse impact of COVID-19 may be a force majeure event but this is by no means certain.

The time period for giving notice of delay under unamended JCT is whenever it become reasonably apparent that the progress of the works is being or is likely to be delayed.  However, amendments to the JCT terms often include a strict time period for so notifying.

Also, under JCT, force majeure is not a Relevant Matter so there is no means for the Contractor to seek recovery of the cost of the delay, even if an extension of time is secured.

Under clause 3.10, the Employer could postpone operations on site, which in itself is both a Relevant Event and a Relevant Matter entitling the Contractor to claim an extension and associated loss and expense.  Any Employer seeking to postpone must also be aware that JCT does include a force majeure event as a ground for termination by either party if the works are suspended for the continuous period of time specified in the Contract Particulars.  The default period of suspension in JCT is 2 months but this may have been expressly amended. 

Contract Amendments

It is important to review the express amendments or additional terms incorporated into a contract.  The terms may provide the Employer with the right to terminate at will, or to suspend the works for a certain period.

Conversely, the express terms could limit the Contractor’s rights in such circumstances, limiting the grounds for securing an extension, and precluding it taking steps to terminate.

At common law

In the absence of adequate grounds for securing an extension under the contract or for suspending or terminating, the common law offers little assistance. 

It is only possible to avoid the express terms of the contract addressing delaying events which give rise to an extension if the Employer has prevented performance.  COVID-19 is not an Employer act of prevention.

The common law doctrine of frustration, which would discharge the parties from all future obligations, only applies in certain restricted circumstances where performance has become physically or commercially impossible, which the Courts have interpreted narrowly.  If the Contract can be performed, but subject to delays, it is not impossible to perform, so will not provide sufficient ground to seek to terminate the contract.

Future contracts

If you are due to enter into contract, be warned – The potential delaying impact of COVID-19 is now reasonably contemplated.  That means that it will not be deemed a force majeure event. It will therefore be necessary to either expressly provide for the impact of COVID-19 in the terms of contract or factor in sufficient float to the programme in order to avoid the delaying impact of this pandemic over the coming months.

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It was confirmed in yesterday’s budget that, as a temporary measure to help contain the spread of the Coronavirus, the Government will refund employers with fewer than 250 employees (to be determined by the number of people a business employed as of 28 February 2020) the first 14 days of Statutory Sick Pay they pay to employees as a result of Coronavirus related absence.

It is anticipated that this measure will come into effect at the same time as the temporary regulations to extend Statutory Sick Pay to be available from day one (rather than day four) for employees who self-isolate.

It was also announced that the Government will introduce a temporary alternative to the fit note in the coming weeks which can be used for the duration of the Coronavirus outbreak. This will enable people who are advised to self-isolate to obtain a notification via NHS111 which they can use as evidence for absence from work where necessary. This notification would meet an employers’ need for evidence when paying Statutory Sick Pay. If you would like more advice on any of the issues raised above or in our Coronavirus FAQs (read here), please do not hesitate to get in touch with us.

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1. If someone is healthy but has received a written notice to self-isolate from a GP or NHS 111 are they entitled to sick pay?

Yes, because they are deemed (in accordance with 2 of the Statutory Sick Pay (General) Regulations 1982) to be incapable of work, and so are entitled to statutory or company sick pay in line with your normal sick pay procedure.

This is assuming they are unable to continue working remotely. Employees who are healthy but have been instructed to self-isolate may be able to work from home – if this is an option, you may wish to discuss this with employees in this situation.

On 4 March 2020 the Prime Minister announced plans for Statutory Sick Pay to be available from day one (rather than day four) for employees who self-isolate as a temporary measure to respond to the outbreak. This change has not yet come into effect but we will make you aware when it does.

2. If somebody chooses to self-isolate, and/or is not given formal written notice to do so by a GP or NHS 111, are they entitled to sick pay?

No, they are not entitled to statutory or company sick pay as they are not incapable (or deemed to be incapable) of work. You can of course use your discretion to pay sick pay in this circumstance but there is no obligation, in which case anyone who chooses to self-isolate will either have to:

In practice, as this is a preventative measure to reduce the transmission of the virus, you should consider whether other arrangements can be put in place to allow the employee to self-isolate whilst still working, for example home working. If it is possible to put such arrangements in place, the employee should be paid as normal.

3. If an employee is self-isolating, can we still require him or her to submit a ‘fit note’?

You may need to be flexible with an employee in this situation. For example, someone who has been told to self-isolate for 14 days may well not be able to provide a fit note after 7 days. You should therefore use your discretion when requiring medical evidence.

4. What if we are concerned about someone who has recently returned from a high risk country such as China or Italy, can we tell them not to come into work?

You are under a duty to protect the health and safety of your employees, so if there is an identified risk that an employee may have been exposed to the virus, you can ask them not to come to work as a preventative measure for the protection of other employees.  You should also check whether they have followed the current Government and NHS guidance on self- isolation. If they have returned from one of the countries listed by the NHS as being at higher risk of Coronavirus, it may well be that if they contact their GP or NHS111 they will be issued with a written notice requiring them to self-isolate.

Any instruction not to attend work should be related to potential exposure to the virus in line with the current Government and NHS guidance and should apply to all staff regardless of nationality or ethnicity. Where there are viable alternatives, such as working from home, these should be explored before any instruction is given to stay away from work.

If the individual is not unfit to work, their entitlement to sick pay will be determined by whether or not they have a written notice requiring them to self- isolate.  If the individual is later diagnosed with Coronavirus or otherwise becomes too unwell to work, they will be entitled to statutory or company sick pay in the normal way.

5. What if an employee requests time off to look after someone else who has or may have the Coronavirus?

Employees are entitled to unpaid time off work to deal with an unexpected situation or emergency involving someone who depends on them (i.e. child, spouse, parent or other individual in the same household). This might apply in the context of Coronavirus where an employee:

The amount of time off an employee is entitled to take must be reasonable to deal with the emergency in question – usually no more than two or three days. There is no statutory right to paid or unpaid time off to provide ongoing childcare or to look after an elderly parent in the long term so if more time is needed, an employee will have to book holiday or take it as unpaid leave.

6. What if employees cancel their current holiday plans at short notice if they were planning to visit an affected country. Do we have to accept this if the rotas have already been reorganised?

These requests should be granted if at all possible otherwise employees may feel pressured to risk taking their holiday as originally planned, leading to a period of self-isolation or a risk to colleagues on their return to work.

7. What if employees are refusing to come to work for fear of catching the Coronavirus?

You should listen to any concerns employees may have and where there are genuine concerns, you should try to resolve them to protect the health and safety of employees. For example, you should consider flexible working arrangements such as home working or it may be possible to allow employees who wish to do so to take holiday or unpaid leave. If their fear is the risk of infection on public transport, it may be possible to adjust their hours to enable them to travel outside rush hour.

If you do permit remote working or holiday, you should reserve the right to require workplace attendance on short notice in case you find yourself short staffed. You should also make it clear that disciplinary action could be taken if an employee refuses to attend work without good reason.

You are not obliged to agree to a request to take time off, whether paid or unpaid, where the request is not in line with Government or NHS guidance. If you refuse a request for time off and an employee still refuses to attend work, you are entitled to take disciplinary action.  Before any disciplinary sanction is imposed, the situation should be discussed in full with the individual and account should be taken of any mitigating circumstances.  Whilst you may wish to impose a disciplinary warning, bear in mind that it is likely to be unfair to dismiss because of a refusal to attend work arising out of a genuine albeit misguided fear of infection.

8. Can we require employees to take annual leave if they have requested time off work?

An employer may give notice ordering a worker to take statutory holiday on specified dates, however, such notice must be at least twice the length of the period of leave the worker is being ordered to take.  That means if an employee is concerned about coming into work and you require them to take a week’s holiday, you will have to give them at least 14 days’ advance notice.  As such, this is unlikely to be a practical option. Obviously if an employee agrees to take holiday at your request, no notice is needed.

9. What if we decide to close because of the risk of people catching the virus?

If this becomes necessary, you should where possible make alternative arrangements so employees can continue to work, whether that be from home or at another location. You should also ensure that employees know how to communicate with managers and colleagues.

You should note that where an employee is willing and able to perform work in accordance with their contract, you have an obligation to pay wages so employees in this situation will be entitled to their normal pay unless their contract provides otherwise.

We have considered whether a contractual right to lay off and/ or short-time working could be used to avoid having to pay full pay to employees in this situation. The answer is that it depends. An employee is “laid off” and entitled to a guarantee payment from the Government if the terms of their employment contract provide that whether or not they are paid depends on their employer providing them with the work they are employed to do, and they are not entitled to any pay during the period in question because their employer does not provide work for them.  That means lay off may be an option for hourly paid employees but may not be appropriate for salaried employees.  Note, this approach is not an option where there is no right to lay off in the contract of employment.

10. What if an employee or member of the public who is confirmed to have the virus has recently been in the workplace?

You will be contacted by the PHE local Health Protection Team to discuss the case, identify people who have been in contact with them and advise on any actions or precautions that should be taken.

The government guidance suggests closure of the workplace is not required unless the PHE local Health Protection Team advise you of this.

11.  What if an employee has had contact with a person who has a confirmed case of the virus for example, an employee living in the same household as a confirmed case?

If an employee informs you that their child/partner has a confirmed case of the virus, urge them to seek immediate advice from their GP or NHS 111. Those who have had close contact will be asked to self-isolate at home for 14 days from the last time they had contact with the confirmed case.

Employees who have not had close contact with the original confirmed case, i.e. those who have just had contact with an employee who has had contact with the confirmed case, do not need to take any precautions and can continue to attend work as normal in accordance with current Government guidance.

12. What if an employee is refusing to handle post, packages or food from affected areas

The Government guidance states that there is no perceived increase in risk when handling post or freight from specified areas so employees should continue to follow existing risk assessments and safe systems of work and be asked to review the Government guidance in this regard for peace of mind.

If employees refuse to do certain tasks without good reason, disciplinary action may be appropriate. 

13. Should we be doing anything to reduce the risks of exposure in the workplace?

Yes, you are under a duty to protect the health and safety of employees. Such actions could include:

You should keep everyone updated on actions being taken to reduce the risk of exposure in the workplace. It is also a good time to remind employees that they should make sure their contact numbers and emergency contact details are up to date.

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What’s New? This month we look at new ICO guidance on the time limit for responding to a subject access request and data protection after Brexit; new rates for statutory family and sick pay; and parental bereavement leave.

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/656487_whats-new-february-2020new.pdf?dm_i=21HH,6RB6T,NK38PB,R0LO2,1

Look out next month Proposals for the new points based immigration system will take effect from 1 January 2021.

Stop Press! ACAS issues new advice for employers on the impact of Corona Virus

https://www.acas.org.uk/coronavirus?dm_i=21HH,6RB6T,NK38PB,R0NUD,1

When is a detriment caused by an act of whistleblowing? In the case of Jesudason v Alder Hey Children’s NHS Foundation Trust the Court of Appeal found that the Trust was not liable to the claimant for detriments caused to him by steps the Trust had taken to protect its reputation following the claimant blowing the whistle.   

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/656350_jesudason-v-alder-hey-nhs.pdf?dm_i=21HH,6RB6T,NK38PB,R0LO2,1

Can a compulsory retirement policy be justified? In Ewart v Chancellor, Master and Scholars of the University of Oxford, the Employment Tribunal upheld a university professor’s claims for direct age discrimination and unfair dismissal following his compulsory retirement.

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/656478_retirement—-ewart-v-uni-of-oxford-new.pdf?dm_i=21HH,6RB6T,NK38PB,R0LO2,1

Grievances and reasonable adjustments In the case of Ishola v Transport for London the Court of Appeal looked at the meaning of “provision, criterion or practice” in the context of a claim about an alleged failure to make reasonable adjustments. 

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/656482_ishola-v-tfl-new.pdf?dm_i=21HH,6RB6T,NK38PB,R0LO2,1

Disability – assessing the long term effect of an impairment In Tesco Stores Ltd v Tennant, the EAT has held that for the purposes of a disability discrimination claim, a claimant must show that their condition had a “long-term effect” at the time the alleged acts of discrimination were committed. 

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/656481_tennant-v-tesco-formatted-new.pdf?dm_i=21HH,6RB6T,NK38PB,R0LO2,1

Pannone Academy offers a range of employment law and HR courses designed to help companies ensure they operate within the law, with a clear focus on prevention rather than cure. More details can be found online at Pannone Academy

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If your business uses the services of consultants and contractors through an intermediary such as a personal service company, you will be aware of the importance of getting ready for the off-payroll rules (IR35) that will apply in the private sector from 6 April 2020.

HMRC and HM Treasury have now issued helpful clarification that the new off-payroll rules will only apply to services carried out on or after 6 April 2020 and will not catch services performed before that date even if they were paid for after that date.

If payment is made on or after 6 April 2020 in respect of services provided both before and after 6 April 2020, a “just and reasonable” apportionment will be required.

https://www.gov.uk/government/news/hmrc-announces-change-to-the-off-payroll-working-rules

Our employment team can carry out an assessment of the status of the individuals you engage and provide advice and support on the new IR35 new rules. Get in touch if you’d like to discuss this with us further.

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What’s New?

This month we look at the new guidance on data protection for small businesses, increases to the national minimum wage, and the new employment bill announced in the Queen’s speech.

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/652823_whats-new-january-2020.pdf?dm_i=21HH,6PINI,NK38PB,QRZCO,1

Disciplinary investigations

In Sunshine Hotel Ltd v Goddard the EAT held that an employer must carry out as much investigation as is reasonable in the circumstances but this does not necessarily mean that a separate investigatory and disciplinary hearing is required in every case. 

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/652873_unfair-dismissal—investigation.pdf?dm_i=21HH,6PINI,NK38PB,QRZCO,1

Protecting philosophical belief

In  two recent cases, the employment tribunal has explored the outer limits of what counts as a “philosophical belief” for the purposes of the Equality Act.

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/652815_belief-discrimination–formatted.pdf?dm_i=21HH,6PINI,NK38PB,QRZCO,1

Substitution clause does not automatically prevent ‘worker’ status

In yet another case, Stuart Delivery v Augustine, the courts have confirmed worker status for couriers in the gig economy. The discussion in this particular case centres on the scope of substitution clauses and when such a clause can, or in this case cannot, mean that someone is genuinely self-employed.

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/652818_substitution-clause—stuart-delivery-v-augustine.pdf?dm_i=21HH,6PINI,NK38PB,QRZCO,1

Blanket “no beards” policy was indirectly discriminatory

In Sethi v Elements Personnel Services Ltd, an employment tribunal decided that a blanket “no beards” policy operated by a temping agency amounted to indirect religious discrimination against a practising Sikh who had been refused work based on that policy. 

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/652821_sethi-v-elements-personnel-services.pdf?dm_i=21HH,6PINI,NK38PB,QRZCO,1

Pannone Academy offers a range of employment law and HR courses designed to help companies ensure they operate within the law, with a clear focus on prevention rather than cure. More details can be found online at Pannone Academy

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Earlier this week the Government announced a package of proposals designed to ensure building owners address fire safety risks.  Part of what has been dubbed “the biggest change in building safety for a generation” Housing Secretary Robert Jenrick MP hopes the changes will ensure that, “everyone is safe, and feels safe, in their own home.”

So what has the Government announced this week?

A new Building Safety Regulator

Grabbing the headlines is the immediate establishment of a new Building Safety Regulator (BSR) within the HSE to raise building safety and performance standards and to have oversight of a stringent new regime for higher-risk buildings.

The BSR will be established initially in shadow form ahead of its formal creation on a statutory basis. Dame Judith Hackitt, former Chair of the HSE and author of ‘Building a Safer Future,’ the independent review into building regulations and fire safety commissioned following Grenfell, will chair a board overseeing transition to the new regime.

Previous plans for the BSR incorporated representatives of the Fire Service and Local Authorities in a joint competent authority arrangement.  However, the Government has, instead, chosen the HSE to run the BSR exclusively. 

Details as to the nature, scope and powers of the BSR are yet to be confirmed, as is the basis and source of its funding.

Consolidated building safety guidance

The Government also issued simplified consolidated guidance to building owners on the actions they should take to ensure their buildings are safe (https://www.gov.uk/government/publications/building-safety-advice-for-building-owners-including-fire-doors). 

Covering a range of topics from smoke control to fire doors, the document requires immediate action from owners of buildings of any height to assess and manage the risk of external fire spread.  It also reflects the view that cladding material comprised of ACM with an unmodified polythene core should not be used on buildings of any height and should be removed. 

To speed up remediation efforts in the private sector, the Government will appoint a construction expert to identify ways to speed up the pace of ACM removal. As an added incentive, Mr Jenrick has announced that from February 2020 he will name and shame those responsible for buildings where remediation works have not started.

What next?

With the second phase of the Grenfell Inquiry starting next week, we can expect further announcements in the coming months, including:-

Viewpoint

There has been widespread frustration and concern at the slow pace of change post-Grenfell and this injection of renewed momentum is welcome. However, the lack of detail in this week’s announcement makes it tough to determine how effective this package of measures might be. 

And whilst there is widespread support for the HSE’s newly expanded role, the BSR must be properly resourced if it is to make the impact sought.  Mike Robinson, Chief Executive of the British Safety Council agrees; “between 2010 and 2017 the HSE had a real terms cut of over 50%, losing nearly a third of their staff…the Secretary of State has promised that the [BSR] will get the funds it needs.  I’d like to see that funding ring-fenced so that it doesn’t disappear to plug the existing funding gap at HSE”.

It seems clear that we can expect a change of approach when it comes to the assessment and prioritisation of building risks, which Robert Jenrick says have relied on, “crude height limits with binary consequences [which] does not reflect the complexity of the challenge at hand.”  Whilst height will remain a significant factor, going forwards it seems it will be just one of a number of risk factors to be considered.

Further updates will follow as additional measures are announced.  In the meantime, if you have any queries regarding these developments, please contact Rhian Greaves (rhian.greaves@pannonecorporate-com.stackstaging.com) or Bill Dunkerley (bill.dunkerley@pannonecorporate-com.stackstaging.com).

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2019 saw climate change making the headlines with ‘climate emergency’ being declared the word of the year, demonstrating that it is at the forefront of the public’s interest. As we move into 2020, there are changes in environmental legislation which are due to come into force and further proposed changes.

Energy Performance

The Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 (“MEES Regulations”) mean that it is unlawful to grant a new tenancy of a property with an EPC rating of E (a sub-standard property), unless an exemption has been validly registered.

From 1 April 2020, it will be unlawful for landlords to continue to let a sub-standard domestic property, unless they have validly registered an exemption, or they have made all the relevant energy efficiency improvements for the property and the property remains sub-substandard. If a landlord breaches the MEES Regulations, they can be subject to fines and a publication penalty.

The government has published a consultation on amending the MEES Regulations to improve the energy performance of non-domestic private rented properties. The consultation sought opinions on two targets: either all non-domestic private rent properties are to achieve a minimum EPC rating of B by 1 April 2030 (where cost effective); or a minimum EPC rating of C (where cost effective). The government’s preference is for the ambitious target of a minimum EPC rating of B. The outcome of the consultation is awaited.

There are also intentions for the government to consult on increasing the minimum energy efficiency for domestic private rented properties.  

MEES provisions are becoming more common in leases and can impact on other aspects of the lease, such as rent review reinstatement and dilapidations.

Conservation Covenants

The government has proposed the introduction of conservation covenants in England to improve the natural environment for future generations. A conservation covenant is an agreement between a property owner and a body such as a conservation organisation (for example, the National Trust), local authority or government body. The covenant could contain positive or restrictive obligations for a conservation purpose. The covenant would be binding on future owners of the land and will last indefinitely, unless it provides for a shorter period or is with a tenant. There will be no restriction on the number of conservation covenants on one property.

Conservation covenants were included in the Environment Bill 2019, but it was not passed before the dissolution of Parliament. It is expected that the new Parliament will pick up the Environment Bill 2019.

The potential implications of conservation consents are not yet known. However, as with restrictive covenants, an onerous conservation covenant could affect the value of the land and the ability of the property owner to deal with or sell the property.

Electric Vehicle Charging Structure

In 2019, consultations were published by the Department for Transport looking at improving the charging infrastructure for electric vehicles.

The consultation included proposed amendments to the Building Regulations 2010 to include electric vehicle infrastructure requirements. The proposals would impact on developers by requiring the installation of charge points and/or cables (depending on whether the building is residential or non-residential) for new buildings and where existing buildings are undergoing major renovation (subject to exemptions). The outcome of the consultation is awaited.

Looking Ahead

As the public continue to demand action on climate change, it is likely that we will see further environmentally aware initiatives which could impact on real estate. 

For real estate advice, get in touch with the Pannone Corporate team on 0800 131 3355 or  complete our contact form.

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Manchester manufacturing specialist M&I Materials is targeting new international markets after turnover soared by more than 20 per cent.

The company – which is being advised on its overseas expansion strategy by Pannone Corporate – reported a rise in sales from £38m to £46m during its most recent financial year.

Chief executive Giles Salt attributed the growth to M&I’s international efforts, which now account for 91 per cent of income. Customers include Boeing, CERN and F1.

“It’s not often you see an industry transform before your eyes, let alone in a way that you can actively contribute to,” said Salt. “The UK wants to be a leader in the EV transition and it can be, but only if we can crack the issues of range anxiety and edge towards charge times more similar to the petrol pump experience.

“We can help do that. We have been working in advanced materials and electrical insulation for more than 100 years, with a core specialism in dielectric fluids for more than 40. We work with some of the world’s best universities and research institutions to keep innovating and growing.”

Pannone Corporate senior partner Paul Jonson added: “M&I Materials has been a client for several years and, through its innovative and highly specialised products and commitment to building long-term relationships with its global supply chain, has become a leader in its markets.”

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An employment tribunal ruled last week that ethical veganism is protected under the Equality Act in the same way as a religious belief, but what does that mean for employers?

In purely legal terms it means it is unlawful for an employer to treat a worker less favourably, put them at a particular disadvantage or harass them because of their vegan beliefs.

In practice, it is difficult to imagine circumstances in which this might become an issue – most employers would protest that they didn’t treat vegan employees any differently before this decision and they aren’t about to start now!

Let’s take a closer look however….

With veganism on the rise, it is clear there are circumstances in which last week’s tribunal decision could have an impact on your business.

What can (should) employers be doing?

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The tumultuous political landscape of 2019 created massive uncertainty about what would happen regarding Brexit and with our own laws and policies. Now the dust has settled, and with the new year stretching out before us, we can set out with more clarity some of the developments we expect to impact on employers and employees over the next 12 months and beyond.

A number of changes have already been legislated for and will come into force on 6 April 2020 so employers should start now on the necessary preparatory steps to ensure they are in a position to meet their new legal obligations.

Off-payroll working and IR35

The off-payroll working rules will be extended to large and medium-sized companies in the private sector. Employers using agencies, consultants and contractors will need to review these working arrangements to identify whether they may be responsible for deducting tax and NI from payments made to these individuals.

Termination payments

All termination payments above the £30,000 threshold will be subject to class 1A NICs. If you are negotiating a settlement agreement or exit package this is something that both parties will need to consider as it places obligations on the employer and may result in a smaller financial sum for the employee.

Statement of terms for all workers

All workers, not just employees, will be entitled to a written statement of terms of employment from day one of their employment (or before), rather than within two months of starting. This information must also now include: details of all remuneration and benefits; any paid leave the worker is entitled to; any probationary period; the hours and days of the week the worker is required to work; and details of any training provided by the employer.

Changes to holiday pay calculations

The reference period to calculate a ‘week’s pay’ for those who do not have normal working hours or those whose pay varies will be extended from 12 to 52 weeks. If an employee has worked for less than 52 weeks then the reference period will be the number of weeks the employee has worked.

Changes to agency worker contracts

Employment businesses must provide agency work-seekers with a key information document before the terms under which they will work are agreed. The information to be given includes: minimum rate of pay; any deductions to that pay, how they will be paid and by whom; and annual leave entitlement.
The “Swedish Derogation” provision that appears in many agency workers’ contracts (which enabled businesses to opt out of equal pay requirements) will no longer apply. Temporary work agencies must advise workers of this in writing by 30 April 2020.

Statutory Parental Bereavement Pay

In April 2020, the Parental Bereavement (Leave and Pay) Act 2018 is expected to come into effect. This provides employed parents with 2 weeks’ paid leave if they lose a child under the age of 18, or suffer a stillbirth after at least 24 weeks of pregnancy.
In light of the changes set out above, now is a good time to review and update your current contracts, documents and policies. We can assist with this to ensure you are in a position to comply with the new legal requirements when they come into force in a few months’ time.

Brexit and the impact on EU workers’ rights

The UK is now almost certain to leave the EU on 31 January. Under the anticipated transitional arrangements, EU nationals will continue to be permitted to enter the UK without additional requirements until the transition period expires on 31 December 2020 and to apply for settled status before a deadline of 30 June 2021.

A new points-based immigration system which will apply equally to EU and non-EU migrants is planned for January 2021. The new regime promises to simplify ways for UK employers to access skilled migrant workers but there are currently no long-term plans relating to those in ‘low skilled’ occupations such as social care or hospitality. Employers will be expected to fill any gaps in their workforce by hiring UK workers where possible, or through temporary short-term routes.

What steps can employers take now?

• Plan ahead for the January 2021 changes – consider ongoing staffing requirements and if you may need workers from overseas after January 2021, consider applying for a sponsorship licence in advance of the changes coming into force;
• Stay up to date with new developments and government announcements regarding EU and other migrant workers – the UK Visas and Immigration page of the Home Office website can be a good place to start https://www.gov.uk/government/organisations/uk-visas-and-immigration;
• Be aware of the new checking requirements for establishing a right to work after the documentation deadline of June 2021 and make sure you have a robust internal procedure in place for ongoing right to work checks; and
• Exercise caution in making any significant decisions regarding EU workers during the transition period, remembering that general employment law principles still apply.

If you have any queries about current right to work checks, recruiting migrant workers or other business immigration matters then don’t hesitate to contact us.

Employment Bill

The Queen’s Speech referred to a new Employment Bill which will protect and enhance workers’ rights as the UK leaves the EU. The proposals include the creation of a new enforcement body for workers’ rights; the right for all workers to request a more predictable contract; an increase in the leave entitlement for neonatal care and unpaid carers; the extension of redundancy protections to prevent pregnancy and maternity discrimination; and (subject to consultation) making flexible working the default unless employers have good reason not to agree.

We are likely to see further developments as the year progresses, but you can put yourself in the best position to keep on top of the forthcoming changes by taking steps now to ensure you have the correct documentation and processes in place. We can do the hard work of reviewing and updating your contracts and policies, so get in touch and we would be happy to discuss how we can help you.

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What’s New?
This month we look at the disability pay gap, new ICO guidance on
special category data, the Government’s new holiday calculator, and the
final word on carry over of holiday pay.

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/649720_amended-whats-new-december-2019.pdf?dm_i=21HH,6NFM5,NK38PB,QI0UY,1

Whose motivation counts when it comes to the reason for dismissal?

In two recent cases, the courts have looked at whether a dismissal can be automatically unfair when the decision maker was not motivated or even aware of the automatically unfair reason for the dismissal.

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/649590_royal-mail-v-jhuti—knowledge-of-decision-maker.pdf?dm_i=21HH,6NFM5,NK38PB,QI0UY,1

‘Workers’ not just employees covered by TUPE

In what could be one of the most significant decisions in many years relating to the application of TUPE, the Central London employment tribunal in Dewhurst v Revisecatch Ltd t/a Ecourier has held that ‘workers’ and not just employees are entitled to the protection of the TUPE legislation

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/649600_tupe-and-workers-formatted.pdf?dm_i=21HH,6NFM5,NK38PB,QI0UY,1

The extent of an employee’s right to freedom of expression

The European Court of Human Rights has held that the dismissal of an employee who set up and posted articles on a professional knowledge-sharing website was in violation of his rights under Article 10 of the European Convention on Human Rights.

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/649606_right-to-freedom-of-expression-formatted.pdf?dm_i=21HH,6NFM5,NK38PB,QI0UY,1

What constitutes satisfactory evidence of right to work?

In the case of Badara v Pulse Healthcare Limited, the Employment Appeal Tribunal clarified the approach an employer should take to the issue of right to work for a non EEA family member of an EEA national.   

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/649718_amended-right-to-work.pdf?dm_i=21HH,6NFM5,NK38PB,QI0UY,1

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What’s New?
This month we look at the latest recommendations for reforming the use of non disclosure agreements in discrimination cases, new rules for Class 1A employer NICs liabilities on termination awards and sporting testimonials, and the benefits of a minimum wage

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/647179_whats-new-november-2019.pdf?dm_i=21HH,6M33R,TG9LI9,QBRD7,1

Third party harassment – can employers still be liable? The Employment Appeal Tribunal has held that employers are only liable for third party harassment where their action or inaction in respect of the third party’s conduct is on the ground of a protected characteristic. However, the employee was successful in his claim against the employer itself for indirect discrimination arising out of the same scenario, which means that employers may still be exposed to potential claims even if the discriminatory conduct is that of a third party.

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/647139_third-party-harassment-article-final.pdf?dm_i=21HH,6M33R,TG9LI9,QBRD7,1

Covert monitoring and the right to privacy In López Ribalda and others v Spain, the European Court of Human Rights has decided that the use of hidden cameras to monitor suspected workplace theft by a number of supermarket cashiers did not violate their privacy rights under Article 8 of the European Convention on Human Rights.

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/647140_cctv-ecj-decision—lopez.pdf?dm_i=21HH,6M33R,TG9LI9,QBRD7,1

What constitutes a philosophical belief? In Gray v Mulberry Company (Design) Ltd, the Court of Appeal has given the latest judgment in a line of cases which test the extent of what constitutes a protected philosophical belief under the Equality Act.

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/647176_discrimination-and-philosophical-belief—gray.pdf?dm_i=21HH,6M33R,TG9LI9,QBRD7,1

Protected conversations In the recent case of Harrison v Aryma Limited the Employment Appeal Tribunal considered when an offer of termination under a settlement agreement is, and is not, protected.

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/647141_protected-conversations-formatted.pdf?dm_i=21HH,6M33R,TG9LI9,QBRD7,1

Pannone Academy offers a range of employment law and HR courses designed to help companies ensure they operate within the law, with a clear focus on prevention rather than cure. More details can be found online at Pannone Academy

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Welcome to the latest edition of Regulatory News! It’s been a busy time since our first edition, not least because we hosted our first client seminar, which focused on property risk. Thanks to all those who came to support the event and, for those unable to make it, we’ve included the headlines in this edition of the newsletter. We were also delighted to be recognised again by our clients and our peers in both of the leading independent legal directories; the Legal 500 and Chambers & Partners, which were published last month. Legal 500 commented: “Pannone has emerged as a specialist in the area of Health and Safety. They have recruited the best from other firms in the marketplace and are now well poised to become a big player. Their attention to detail and strength in depth enables them to provide a comprehensive service to their clients. One to watch for the future.” Thanks to all our wonderful client referees for their feedback!

Thank you for your comments on our first newsletter, issued in September (https://tinyurl.com/wwyqtm8). As always, we really value your opinion so if you have any questions or comments on the newsletter attached, please don’t hesitate to get in touch.

H&S Viewpoint:

Report from our inaugural seminar read more

H&S News:

£3M fine halved on appeal read more

New work related stress inspection criteria read more

HSE review of the impact of the sentencing guideline read more

Fire Safety News:

New role for Dame Judith Hackitt  read more

Care News:

CQC enforcement on the rise read more

New memorandum of understanding read more

Inquest News:

Care home manager jailed read more

Environmental News:

Annual report on environmental performance read more

Climate change risk assessments required for new bespoke permits read more

Waste exemptions consultation ongoing read more

Abstraction and impoundment move into permitting regime read more

Consultation on plastic straws read more

WEEE compliance fee consultation read more

Trading Standards News:

OPSS publishes delivery report read more

OPSS publishes national market surveillance programme read more

Food Safety News:

British consumers take food safety for granted read more

Modern Slavery News: Government publishes annual report read more

Latest News

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What’s new
This month we look at the latest recommendations for reforming the use of non disclosure agreements in discrimination cases, new rules for Class 1A employer NICs liabilities on termination awards and sporting testimonials, and the benefits of a minimum wage. Read more

Third party harassment – can employers still be liable?

The Employment Appeal Tribunal has held that employers are only liable for third party harassment where their action or inaction in respect of the third party’s conduct is on the ground of a protected characteristic. However, the employee was successful in his claim against the employer itself for indirect discrimination arising out of the same scenario, which means that employers may still be exposed to potential claims even if the discriminatory conduct is that of a third party. Read more

Covert monitoring and the right to privacy

In López Ribalda and others v Spain, the European Court of Human Rights has decided that the use of hidden cameras to monitor suspected workplace theft by a number of supermarket cashiers did not violate their privacy rights under Article 8 of the European Convention on Human Rights. Read more

What constitutes a philosophical belief?

In Gray v Mulberry Company (Design) Ltd, the Court of Appeal has given the latest judgment in a line of cases which test the extent of what constitutes a protected philosophical belief under the Equality Act. Read more

Protected conversations

In the recent case of Harrison v Aryma Limited the Employment Appeal Tribunal considered when an offer of termination under a settlement agreement is, and is not, protected. Read more

Who to contact

Jack Harrington

Head of Employment

0161 393 9050

jack.harrington@pannonecorporate-com.stackstaging.com

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What’s new

This month we look at two shocking reports on sexual harassment at work, new ACAS guidance on overtime and suspension, updated Home Office guidance on right to work checks, and the latest statistics from the employment tribunal. Read more

Case law review

Warnings for disability related absence

Most employers issue disciplinary warnings where an employee’s attendance levels fall below a satisfactory standard, but what if poor attendance is caused by a disability? In the recent case of DL Insurance Services Ltd v O’Connor the EAT considered this question. Read more

 

A rock and a hard place – dismissals where there may be no right to work

Under current immigration legislation, an employer is liable for a civil penalty of up to £20,000 if it employs someone who does not have the right to work in the UK and it does not have the necessary evidence of right to work to establish a statutory excuse to a civil penalty. Obtaining evidence of right to work before employment has started is straightforward however where an employee fails to provide evidence of an ongoing right to work, an employer can find itself caught between the rock of civil or even criminal liability, and the hard place of an unfair dismissal claim. Read more

 

Disability Discrimination

In the case of Ali v Bedford Hill Family Practice the EAT considered whether a decision to dismiss an employee who was unable to return to work full time because of an ongoing heart condition amounted to disability discrimination. Read more

 

Lower termination payments for fixed-term workers not unlawful

In the cases of Montero Mateos and Grupo Norte, the ECJ has held that a Spanish law giving fixed-term workers less compensation than permanent staff on the termination of their employment did not breach the Fixed-Term Work Directive. Read more

 

Leaking confidential information part of ‘trade union activities’

In the recent case of Morris v Metrolink the Court of Appeal has decided that the dismissal of a trade union representative when he retained and used leaked confidential information relating to union members was a dismissal for taking part in trade union activities and hence automatically unfair. Read more

Who to contact

Jack Harrington

Head of Employment

0161 393 9050

jack.harrington@pannonecorporate-com.stackstaging.com

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What’s New?
This month we look at the latest statistics from the employment tribunal, ongoing questions about worker status, a proposal to reduce the qualifying age for the national living wage and additions to the Tier 2 shortage occupation list.

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/643199_whats-new-october2019.pdf?dm_i=21HH,6K7OZ,TG9LI9,Q3OBW,1

Amendments to a disciplinary investigation did not render dismissal unfair In Dronsfield v The University of Reading the EAT considered whether an employee’s dismissal had been rendered unfair by amendments to an investigation report made as the result of legal advice.

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/643200_investigation-report.pdf?dm_i=21HH,6K7OZ,TG9LI9,Q3OBW,1

Refusal of a rest break The EAT has held that a kitchen porter who complained about not having a rest break and was subsequently threatened with dismissal was subject to an unlawful detriment

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/643202_refusal-of-a-rest-break.pdf?dm_i=21HH,6K7OZ,TG9LI9,Q3OBW,1

Vegetarianism – lifestyle choice or protected belief? Under the Equality Act, it is unlawful to harass or discriminate against an employee because of religion or belief, but what sort of belief merits protection?  In a recent case an employment tribunal considered whether vegetarianism is a protected belief.

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/643203_vegetarianism.pdf?dm_i=21HH,6K7OZ,TG9LI9,Q3OBW,1

Giving a false reason for dismissal was sufficient to shift the burden of proof In Base Childrenswear Ltd v Otshudi the Court of Appeal found that an employer giving a false reason for dismissal was sufficient to lead to a finding of race discrimination.

https://i.emlfiles4.com/cmpdoc/7/3/2/5/9/files/643204_burden-of-proof.pdf?dm_i=21HH,6K7OZ,TG9LI9,Q3OBW,1

Pannone Academy

News of the fine issued to PwC in this month’s update highlights the
importance for employers of understanding their obligations under the
GDPR.  As part of its range of employment law and HR courses, Pannone
Academy offers an introduction to the GDPR which outlines employer
obligations under the GDPR and will assist in training staff to ensure they are aware of these obligations. 
More details can be found online at https://www.pannoneacademy.com/

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The Sentencing Council has today published the Definitive Guideline for offences of manslaughter.  Previously left to judicial discretion, in issuing this new document the Council has completed the suite of guidance available to Courts tasked with sentencing these serious crimes.

In preparing the Guideline, the Sentencing Council had the unenviable task of attempting to deal fairly, consistently and justly with all manslaughter offences, notwithstanding the hugely varying circumstances in which these offences can be committed.  Distilling their efforts into a concise and user friendly format can have been no mean feat.

The Guideline is overdue, particularly given the well-publicised bolstering of the Courts’ powers when sentencing health and safety cases. Although gross negligence manslaughter cases are still relatively rare, they often accompany charges of corporate manslaughter and serious breaches under the Health and Safety at Work etc, Act 1974, both of which were covered in the February 2016 Guideline.

The consultation exercise that preceded today’s publication demonstrated this nexus and there was clearly much consideration of the workplace fatality as a source of gross negligence manslaughter cases.  Indeed, key changes were made to the original draft Guideline to reflect these discussions

How does the Guideline work?

The Guideline bears the now familiar step by step approach we have become used to in health and safety cases. It calls on Judges to retain some flexibility when sentencing to achieve fairness; partly a way of reflecting upon the huge range of circumstances that might result in conviction.

 

Step 1:

 

Determine the offence category by examining the offender’s culpability and the harm caused.  There are four classes of culpability:

 

·         Level A: very high

·         Level B: high

·         Level C: medium

·         Level D: low

 

 

The Court will consider factors such as offending motivated by financial gain, “blatant disregard” for the high risk of death resulting from the negligent conduct and the offender’s role (if acting with others).

 

The Courts are directed to “avoid an overly mechanistic application of these factors”, a direct result of arguments raised at the consultation stage.

 

The Guideline quite properly notes that in these cases, “the harm caused will inevitably be of the utmost seriousness”.

 

 

Step 2:

 

Identify the starting point and category range:-

 

·         Level A culpability: starting point 12 years (range 10 – 18 years)

·         Level B culpability: starting point 8 years (range 6 – 12 years)

·         Level C culpability: starting point 4 years (range 3 – 7 years)

·         Level D culpability: starting point 2 years (range 1 – 4 years)

 

The Court is then directed to a non-exhaustive list of factors that may aggravate or mitigate the offence.  Matters increasing seriousness include previous (relevant) convictions, ignorance of warnings and attempts to conceal evidence.  Amongst the mitigating factors are previous good character, remorse, attempts to assist the victim and self reporting/co-operation with the investigation.

 

 

Step 3:

 

 

Consider any factors warranting a reduction in sentence for assistance to the prosecution.

 

 

Step 4:

 

Reduction in sentence for guilty plea.

 

 

Step 5:

 

 

Dangerousness: is it appropriate to impose a life sentence or an extended sentence?

 

Step 6:

 

Totality: when sentencing for more than one offence or where the offender is already serving a sentence, consider whether the penalty is just and appropriate to reflect the offending as a whole.

 

 

Step 7:

 

 

Consider whether to make a compensation order and/or a directors disqualification order.

 

Step 8:

 

 

Give reasons for the decision

 

Step 9:

 

 

Consider time spent on bail

Can we expect longer sentences?

Almost certainly; yes.

In developing the Guideline, the Council looked at sentencing data for 2014 and found that the median sentence for manslaughter in that period was 4 years.

The Guideline sees the overall sentencing range for gross negligence manslaughter run from 1 year through to 18 years. However, that 2014 median sentence lies at the upper end of a low culpability sentence and is the starting point for a medium culpability offender under the new regime.  If we consider the criminality of the negligence required to bring a case of this type in the first place, it seems very likely that the median sentence will be considerably higher in coming years.

The Guideline makes no mention of the potential for sentences to be suspended; a clear indicator of the approach the Council expects from the Crown Courts.

Toughening sentencing in gross negligence manslaughter cases is the final piece of the jigsaw when it comes to arming the judiciary with the support they need to impose heavier penalties on a more consistent basis where a death results from a workplace incident.

When will this apply?

The Guideline will apply to all cases sentenced after 1 November 2018, regardless of the date of offending.

The Guideline and consultation response are available here https://www.sentencingcouncil.org.uk/wp-content/uploads/Manslaughter_Definitive-Guideline_WEB.pdf and https://www.sentencingcouncil.org.uk/wp-content/uploads/Manslaughter-consultation-response_WEB.pdf

Rhian Greaves is a Director in the Regulatory team at Pannone Corporate LLP

 

 

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Like all public services, the HSE has had to bear its fair share of cuts since 2009/10; indeed it has seen a 46% reduction in central Government funding in that time.  So it was perhaps no surprise to see that this week’s annual statistics release from the regulator confirmed what those of us in practice have been seeing over the past few years; a continued drop in enforcement activity.

The publication of the Executive’s annual statistics ought to provide food for thought for all employers.  This year is no different.  Headlines include:-

Industries with statistically significantly higher injury rates included:-

Turning to the enforcement perspective, the picture across the board shows consistently less activity from the HSE:-

Where prosecutions have been pursued, there has been a drop in the conviction rate, from 95% to 92%.  That said there remain industries where every single case pursued has resulted in a guilty plea or verdict.  Sectors in that bracket include:-

Employers in the North West remain the most heavily prosecuted.  In line with the national picture however, the region has seen one third fewer cases reach a conclusion than in the previous year. 

With conviction rates remaining high, the spectre of sentencing continues to be at the forefront.  Here there has been a significant 24% drop in the overall fines collected (from £71.5m to £54.5m).  Interestingly however the average fine per conviction continues to rise, albeit at a slower rate than in recent years, now standing at £149,661.

Looking at the detail:-

As a country however, we continue to out perform our European neighbours from a health and safety perspective, a point rightly noted by HSE Chair Martin Temple.  “Great Britain’s position as one of the safest places to work should be a point of pride for us all, but these figures show there is still much to be done to ensure workers go home both healthy and safe”. Like other regulators, the HSE will continue to strive to manage with its ever reducing budget and an analysis based on enforcement statistics is far too simplistic to give the whole picture.  However, a strong and properly resourced regulator is a key component in the daily challenge of improving our health and safety performance as a whole.

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How do you prepare for and ensure that a mediation has the most chance of success? When it comes to mediation, the measure of success depends on a wide range of factors. But, the methods of reaching a mutual and agreeable solution are often the same.

 

We have won national awards for our use of mediation. We have been using mediation as a method of dispute resolution for over 16 years. The dispute resolution team at Pannone Corporate know that mediation is a valuable and preferable form of dispute resolution for clients. Mediation is confidential, flexible, easy to arrange and a controlled environment. It is also much less expensive than a trial. While the following tips are by no means comprehensive, they are a good starting point and essential to consider prior to any mediation proceedings.

 

1) Timing is Critical

When it comes to mediation, timing can be key. Introducing mediation early into a situation can prevent further legal escalation, as well as helping to maintain relationships between parties. It can also help to avoid the legal fees, management time, reputational risk and other associated costs of going to trial. However mediating too early can be a mistake if the parties don’t understand enough about their own position or the opponent’s case. Again mediating very late on in a dispute, such as a few weeks before trial, can be a mistake as the parties are usually entrenched in their positions and significant costs have been incurred.

 

Additionally, if neither side has any expectation or intention of settling the case then mediation is not a good use of time or money.

 

2) Preparation

A large part of successful negotiation derives from preparing your case. This sounds obvious but there is nothing that beats knowing your case, including any weaknesses, as part of mediation preparation. You want to work with your lawyers in the approach to a mediation to understand the likely approach of the mediator, the issues that will form the basis of the discussions, the difficult legal and commercial issues, parameters for settlement and, importantly, what is your plan if mediation fails. Do you have a plan B? You do not want to be trying to devise a plan B while sitting in the mediation at 6pm.

 

3) Devil’s Advocate

As part of the preparation for mediation, you must understand the strengths and weaknesses of the opposition’s argument and have answers to their strongest points if possible. Knowing the opponent’s position as well as you do your own case is vital. The opponent’s perception of its case will influence their approach to settlement. Put yourself in their shoes as part of your preparation. What will be their focus?

 

4) Don’t Be Afraid to Walk Away

Mediation has a good track record in settling disputes but it is not always successful. If it is apparent that the two positions being argued for are worlds apart, then you should feel confident to walk away from mediation at any point. Before doing so you must appreciate what your next step will be. Leaving a mediation when the other party is behaving unreasonably can be a cathartic step but you need to know what your plan B is. Sometimes it is useful to postpone or adjourn the mediation as this can give both sides a chance to consider further their positions following a period of reflection or taking further advice. A bad deal is not better than no deal in most cases.

 

The disputes team at Pannone Corporate have represented clients in hundreds of mediations across a wide range of disputes and sectors. We have long-standing relationships with some of the foremost mediators in the UK and we use our experience to suggest the most appropriate mediator for any particular dispute. For an obligation-free discussion of your circumstances, please call our expert team of dispute resolution solicitors on 0800 131 3355 or contact us via our enquiry form.

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When making wills avoiding potential disputes should always be a consideration. Disputes post-death are all too common and can incur huge legal costs, stress and inconvenience.

Estate Planning 

The primary point of estate planning is to ensure that your assets pass efficiently to the people you want them to. Preparing your Will is the only way to ensure that there are no unintended beneficiaries of your assets. It also provides you with reassurance that your personal and financial affairs will be handled according to your wishes. Any rights or claims any person may have against an estate must be considered.

Explain All Aspects of Your Will 

If you choose to benefit one person over another and your Will is unequal, explaining the reasoning behind this may be important. Similarly, if you do not wish to leave any part of your estate to someone who may expect to receive a share, you should detail why your Will is drafted this way. 

By addressing your decision to exclude that person, they cannot claim that they were simply overlooked as you have explained the reasons for your action. This will reduce the likelihood of someone being able to challenge your Will after your death. 

In England and Wales a person has testamentary freedom to dispose of their estate however they wish. There are no forced heirship rules compelling a person to leave their property to particular family members. However, there is the possibility that a person could make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. In order to bring a successful claim the person must show that the deceased’s Will did not make reasonable financial provision for the claimant. It is therefore important to consider anyone who may be able to claim against your estate when drafting your Will.

Distribute Personal Items 

While it is natural to be concerned about ensuring your wealth is distributed appropriately, you may also wish to give some thought to who will receive your personal items. By dealing with this at the estate planning stage, you can choose who should receive items of family importance and help prevent arguments over sentimental pieces. 

Update Your Will When Necessary 

Significant life events such as divorce or remarriage should prompt you to review your Will. This is because the act of marriage revokes any Will you may already have in place and divorce, too, has an impact on any existing Will. Therefore, should your personal circumstances change in this manner, you should seek advice and consider putting a new will in place. In any event, we recommend reviewing your Will every five years so that your Will remains fit for your circumstances.

If you would like to know more, then get in touch with the team here at Pannone Corporate on 0800 131 3355

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Mr Justice Mann has handed down his decision in the case brought by Sir Cliff against the BBC and South Yorkshire Police for infringement of his right to privacy.

In 2014, unknown to Sir Cliff, he became the subject of an investigation by the police in relation to an allegation of an historic sex offence. The investigation was at that time being conducted by South Yorkshire Police.  Mr Daniel Johnson, a BBC reporter, had found out about the investigation from a confidential source and approached the police about it.  That led to a meeting between Mr Johnson and the police at which he was told about an intended search of Sir Cliff’s home, a secure gated complex in Berkshire, and at which it was agreed that Mr Johnson would be given advance notice of the search when it had been arranged.

The search took place on 14 August 2014 and the BBC immediately gave prominent and extensive television coverage to it (including footage from an overhead helicopter), as the search was happening and afterwards.  The story attracted world wide coverage. Sir Cliff wholly denied the allegations. He remained under investigation until June 2016, when it was announced that there would be no charges brought against him.

The questions for the judge to decide were:

The judge held that the question of whether the existence of a police investigation is something in relation to which that person has a reasonable expectation of privacy is not something which has to date been clearly judicially determined.  He took into account the report of Sir Brian Leveson in his enquiry into the culture, practices and ethics of the press that it should be made abundantly clear that save in exceptional and clearly indentified circumstances (for example, where there may be an immediate risk to the public), the names or identifying details of those who are arrested or suspected of a crime should not be released to the press nor the public.  The judge also referred to the fact that this guidance is reflected in the police’s own guidance on relationships with the media.

The judge held that as a matter of general principle, a suspect has a reasonable expectation of privacy in relation to a police investigation. If the general public was universally capable of adopting a completely open and broad-minded view of the presumption of innocence so that there was no risk of taint either during an investigation or afterwards (assuming no charge), then the matter would be different.  However, the fact of an investigation as a general rule will of itself carry some stigma, and mud will invariably stick.

The judge held that an accused should at least prima facie have a reasonable expectation of privacy in respect of an investigation, although expressly did not find that there is always an invariable right to privacy.

In balancing this right to privacy with the press right to freedom of expression, the judge recognised that sexual abuse of children is matter of serious public concern, and abuse carried out by those in a public position and who had contact with children in that position is of particular concern. Police investigations into such people are a matter of legitimate public interest.  The judge concluded however that it does not follow that because an investigation at a general level is a matter of public interest, the identity of the subject of the investigation attracts the same character.  Knowledge of the identity of the subject of the investigation is not necessarily a material legitimate addition to the stock of public knowledge, and does not contribute materially to the genuine public interest as regards the existence of police investigations in this area. The judge stated that public figures are not “fair game” for any invasion of privacy.

Other important factors in the decision were that the BBC did not afford Sir Cliff a sufficient opportunity to challenge the publication before it happened, being more focused on preserving the exclusivity of its own scoop. The investigation and search were further subsequently “presented with a significant degree of breathless sensationalism”.

The judge ordered the BBC should pay Sir Cliff damages in the sum of £210,000 (a significant amount and over double that awarded to Max Mosley in relation to his privacy claim against the News of the World), including £20,000 in aggravated damages, following the BBC’s decision to nominate its story for an award at the World’s Television Society Awards as the “scoop of the year”.

Since the decision has been handed down, it has been reported that the BBC is looking to appeal it on the basis that the judgement could have far reaching effects for media freedom and the public’s right to know.  It is being argued that in many situations publishing the name of someone under investigation has led to other witnesses and victims coming forward. Moreover the police should be kept under scrutiny in a free society, and this decision will make this much harder for the press to do.

Nonetheless, contrary to some reports in the media, the judge did not make it unlawful for anyone under investigation to be named. This is not necessarily ‘a dark day for press freedom’, as the decision is being described. It is accepted that it is often a difficult decision for a broadcaster whether to name a suspect before they have been charged. Where there is a genuine public interest in a person being named, the press rightly continues to be free to identify the person being investigated notwithstanding this judgment. Nonetheless, after careful consideration of the facts in this particular case, the judge vindicated Sir Cliff’s claim that the nature of the BBC’s reporting and the level of intrusion into his privacy was in this case plainly excessive.

 

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Estate planning is essential, whatever your family circumstances; however, when you have a blended family, it is even more important. 

Second spouses, biological children and step-children can find themselves in conflict with regard to their loved one’s final wishes. Not only does this exacerbate grief at an already stressful time but it is also likely to be costly and time-consuming.

If you have remarried and have children from a previous marriage it may not be as simple as leaving everything to your surviving spouse in the case of your death. While you may expect them to honour your wishes – providing for your children and their children equally – there is a risk that they could amend their Will after your death or remarry and fail to execute a new Will. This could result in your estate passing to your spouse’s biological children or that he or she could remarry or have future children. 

If, on the other hand, you have step-children who you would want to inherit then it is imperative that you make a Will as dying intestate would mean that only your spouse and blood relatives could benefit from your estate. 

You should be able to provide for your intended beneficiaries in the way that best reflects your intentions. It is also important to consider the implications of inheritance tax. A properly drafted Will incorporating a trust can enable you to provide for a spouse during his or her lifetime whilst still making sure that on their death your estate passes to your children and not anyone the spouse may choose to leave it to. This not only protects your assets for your children but can also ensure your estate passes in a tax-efficient manner.

For more information, get in touch with our team here at Pannone Corporate on 0800 131 3355.

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What’s new

This month we look at new guidance on dress codes and discrimination, Acas guidance on religion and belief discrimination, and updates to the EHRC’s handbook on the Equality Act

EHRC updates handbook on the Equality Act 2010

The Equality and Human Rights Commission has published a handbook which provides a brief overview of the Equality Act 2010 and guidance for advisers in England and Wales. The handbook is not designed to be a comprehensive summary of equality law but to act as a reference guide and direct further reading. The handbook covers:

https://www.equalityhumanrights.com/sites/default/files/equality-act-2010-handbook-for-advisers.pdf

Government guidance on dress codes and sex discrimination

The Government Equalities Office has published guidance for employers, employees, and job applicants on dress codes and discrimination. The guidance was produced following recommendations made in a report by the Women and Equalities Select Committee and the Petitions Committee. The report called for the Government to impose stricter penalties on employers who enforced discriminatory dress codes however the guidance contains no details of any measures to toughen up sanctions.

The guidance is brief and vague but sets out how the law might apply in cases of sex discrimination and employers’ legal responsibilities when setting a workplace dress code. The guidance specifically addresses the issue of transgender employees and religious symbols in the workplace.

It should be noted that the guidance only deals with the rights of employees and does not address the rights of the wider category of workers protected under the Equality Act 2010 such as agency workers.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/709535/dress-code-guidance-may2018-2.pdf

New Acas guide on religion and belief discrimination

The Advisory, Conciliation and Arbitration Service has published new guidance on religion and belief to help prevent discrimination at work.

The guidance offers advice to employers where discrimination is most likely to occur, namely recruitment, requests for annual leave, dress codes, and training and development opportunities.

As well as an explanation of the law, it contains practical advice on a variety of issues including:

http://www.acas.org.uk/index.aspx?articleid=1856

Amendments to the Time Off for Public Duties Order

 The Time Off for Public Duties Order 2018 (SI 665/2018) was made on 30 May 2018 and will come into force on 1 October 2018.

The Order will grant unpaid time off work to four groups of volunteers in the criminal justice system who monitor conditions of those in custody. These four groups are:

Currently employers are not obliged to grant time off work for the above volunteers to perform public duties, but they will be obliged to from 1 October 2018.

https://www.legislation.gov.uk/uksi/2018/665/made

Case law review

Strict liability for disability discrimination

The Court of Appeal has confirmed that an employer may find that it has discriminated against an employee for a reason arising as a consequence of his or her disability even when the employer was not aware at the relevant time that there was a link between the disability and the reason for dismissal. Read more

Conduct short of gross misconduct

Two recent EAT decisions have given food for thought on the subject of dismissal for serious misconduct. Is it fair to dismiss for conduct short of gross misconduct without prior warnings?  Is it fair to dismiss where there has been a course of serious conduct but no single act of gross misconduct? Read More

Part-time worker claims – definition of ‘the same type of contract’

In Roddis v Sheffield Hallam University the EAT held that the use of the term ‘zero-hours’ as part of the contract of employment for a ‘part-time associate lecturer’ did not preclude him arguing that he was on the same type of contract as a ‘permanent, full-time lecturer’ for the purposes of a claim under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. Read More

Religious harassment

In Bakkali v Greater Manchester Buses (South) Ltd (t/a Stage Coach Manchester) the EAT determined that asking a Muslim employee whether he supported a particular terrorist organisation (namely Islamic State), was not harassment relating to religion. Read more

JACK HARRINGTON

HEAD OF EMPLOYMENT

0161 393 9050

jack.harrington@pannonecorporate-com.stackstaging.com

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The UK’s data protection regulator (the ICO) has announced that it intends to impose a fine of £500,0000 on Facebook for its role in the Cambridge Analytica scandal*. With the recent coverage of the GDPR and the increased fines of up to €20 million or 4% of global annual turnover for the most serious breaches, £500k may seem surprisingly low. However, this is the maximum penalty the ICO is able to issue in respect of breaches occurring before 25 May 2018 and would in fact be the highest fine the ICO has ever issued.

The announcement was made as part of the ICO’s progress report into its investigation of the use of data analytics in political campaigns. The investigation was launched in response to allegations that data obtained from Facebook by Cambridge Analytica was misused by both sides in the UK referendum on membership of the EU and to target voters during the 2016 American Presidential election process.

The breaches relate to the Cambridge Analytica app which scraped data from the profiles of the 320,000 US Facebook users who used the app (a personality quiz) and also from those users’ friends’ accounts (an estimated 87 million users worldwide, including 1 million UK users). Facebook was not sufficiently transparent with users concerning the ability of the app to access profile data and, despite being aware of potential breaches of its terms of service, Facebook did not implement adequate security measures to restrict Cambridge Analytica’s collection and use of Facebook data.

This is the strongest indication yet from the ICO that it is prepared to use the full range of its regulatory powers to deal with the most flagrant data breaches. Facebook has certainly got off lightly with a fine of £500k due to the timing of the breach; a GDPR fine could have easily have been in the tens of millions. Social media platforms and political parties and campaigns are clearly high on the ICO’s current agenda, but other global businesses ought to take note too.

Most businesses are unlikely to ever face fines in the region of €20m or higher. However, practices which show a disregard for data laws and the privacy rights of individuals will attract the ICO’s attention and little leniency will be shown. Businesses operating in the EEA must ensure that they provide sufficient information to individuals about the use of their personal data, that they properly safeguard that personal data and, in the event of a data breach, take prompt and effective measures in response.

*Facebook now have an opportunity to respond to the ICO Notice before the penalty is finalised.

Excerpts from this article were first published on LexisPSL on 11/07/2018

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