Commercial news update December 2017: implied terms, whistleblowers and TUPE liability

Commercial news update December 2017: implied terms, whistleblowers and TUPE liability

The festive season is in full swing, and it’s time to deck the halls with boughs of holly.

As well as keeping up-to-date with new legal developments, lawyers also have a plethora of Christmas drinks, office parties, shopping and holidays to enjoy. How to fit it all in is a perennial problem. Fortunately, our Commercial news update for December, created in partnership with Radius Law, is here to help.

Quicker to digest than a mini-mince pie, it brings together in one place the latest key developments relevant to in-house lawyers. This month’s update looks at recent caselaw on contract interpretation, the Royal Mail whistleblower case and the risks associated with TUPE transfers.

Our updates always focus on the commercial aspects, and look at the practical steps to consider.

Watch or  listen—and be fully up-to-speed in less than 10 minutes.

And may we take this opportunity to wish you all a very happy festive season!

This month, we cover the following:

Corporate & Commercial—tune in from 0:14 secs

Precise terms must be observed when serving a warranty claim, communications company Zayo found to its cost in Zayo v Ainger. A sale agreement required that any claim be served on all sellers at their specified addresses. Unfortunately for Zayo, one of the sellers had moved and the courier delivered the notice to an alternate address. Zayo’s claim was knocked out for not being validly served.

What happens where a contract term is not clearly stated but is so obvious that it goes ‘without saying’? Answer: the term is implied, according to the Court of Appeal in Sparks v Biden. Sparks sold land for the development of houses, and also stood to gain from the eventual sale of the houses through overage provisions. The contract obliged the buyer to develop the land as soon as reasonably practicable, but did not expressly refer to a timescale for selling the houses. The buyer decided to rent rather than sell the homes. However, the Court of Appeal held that the agreement had obviously meant to oblige the developer to sell the houses (as well as develop the land) as soon as reasonably practicable. Therefore, the term was implied.

Data security—tune in from 2:21 secs

There are updates on the General Data Protection Regulation (GDPR). Data controllers will still need to pay the Information Commissioner’s Office an annual fee, which could be as much as £1,000, and the European Commission has released new guidance on impact assessments.

Employment—tune in from 3:32 secs

Whistle blower reports came under the spotlight in a recent unfair dismissal case involving a Royal Mail worker. The Court of Appeal has now overturned the Employment Appeals Tribunal decision last September, in Royal Mail v Jhuti. The Court held the employer could not be liable for the employee’s dismissal where the dismissing manager was unaware of a protected whistle blowing report, which had been made to the employee’s line manager.

A breast-feeding mother is entitled to a specific assessment into her individual situation, and for appropriate adjustments to be made. The employer cannot simply rely on a standard risk assessment, the European Court of Justice has held.

Baker v British Gas highlights the risks posed by TUPE transfers. An electric shock caused an employee to fall off his ladder, sadly suffering brain damage in the process. Negligence related to the incident dated back two years, prior to a TUPE transfer. The employee sued his current employers, and the High Court agreed—TUPE law made the current employer responsible for the past acts of employees.

Competition—tune in from 6:36 secs

Simply attending a meeting where confidential pricing information was exchanged (and which was covertly filmed) was sufficient to count as a competition law infringement. Balmoral Tanks’ excuses that its representative had stated the company did not want to be part of a cartel, only attended one meeting, and may have disclosed incorrect information were not enough to save it from a fine.

Bribery & Corruption—tune in from 8:02 secs

The government has issued new guidance on the Modern Slavery Act, which can be found on the website.

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About the author:
Iain founded Radius Law in September 2013 which has been designed to meet the exacting standards that Iain had of his law firms during his time as an in-house counsel.


Iain’s in-house career spans 14 years with the 7 years from 2006 to 2013 being the General Counsel and Chief Compliance officer for the Mercedes-Benz UK Group. In this role he led a team of 18 staff.
Iain has previously been recognised in the Financial Times Innovative Lawyers report as a thought leader in legal management. He has spoken regularly and had published articles particularly on how to measure legal value.

Aside from legal management, Iain has significant expertise in regulatory work, particularly competition law and anti-bribery. Iain has led the implementation of large scale compliance programmes and also managed regulatory investigations.

Outside of the day job Iain has a passion for community projects and has been a non-executive director of a housing association and also established a debt advice centre. This social conscious approach continues in Radius Law with a bold commitment to pay 10% of profits to charity.