Commercial news update December 2018: Corporate Governance changes 2019, ICO prosecutes an individual under a law which carries a custodial sentence and Improper use of NDAs

Your updates across Brexit watch, corporate & commercial, data security and employment.

We focus on the commercial aspects and look at the practical steps for you to consider.

This month, we cover the following.

Brexit Watch

Draft withdrawal agreementOn 14th November, the UK government and the EU agreed the draft Brexit Agreement. It’s a 585-page document that we have summarised for you along with the two potential outcomes.

See news Analysis: Brexit Bulletin—examining the key announcements, documents and next steps for the draft Withdrawal Agreement

Corporate & Commercial

Corporate Governance changes 2019We have previously reported on the new corporate reporting obligations that will be implemented on the 1st January 2019. The Government has published an updated Q&A document on the reporting obligations and this is available on the Government website.

See: BEIS publishes revised Q&A on Companies (Miscellaneous Reporting) Regulations 2018

Legal privilegeThe Court, in Glaxo Wellcome v Sandoz, decided that legal privilege will not protect documents passing between an in-house lawyer and internal clients if the in-house lawyer is merely collating those documents to send on to external lawyers for advice.

See case: Glaxo Wellcome UK Ltd (trading as Allen & Hanburys) and another company v Sandoz Ltd and other companies

When is a contract formed?Without a signed contract, it’s often difficult to assess when and if a contract has ever been formed.  Ultimately, the court will assess whether and when the parties’ communications, by words or conduct, show that they intended to be bound and had agreed the terms that they regarded as essential.

A recent case has helped to provide some clarity to this common challenge.

See News Analysis: Commercial negotiations, draft contracts and the formation of a contract (Rotam Agrochemical Co Ltd v GAT Microencapsulation GmbH)

Data security

ICO flexes its musclesThe Information Commissioner’s Office (‘ICO’) has prosecuted an individual (under the Computer Misuse Act 1990) for unauthorised access to computer material.  This is the first occasion that the ICO has prosecuted under a law which carries a custodial sentence.

See: First prosecution brought under Computer Misuse Act

In addition to the ICO has also reported that the average fine for a data breach has doubled in the last year to £146,000 and the total value of penalties rose to £4.98 million, up 24% from £4 million the year before.

See: UK data breach fines doubled as GDPR sets in


Unsigned employment contractThe recent case of Tenon FM v Cawley has demonstrated the importance of ensuring employment contracts are signed and that a good process is followed.

See: Tenon FM v Cawley

Co-workers liable for a whistleblowing claimThe Court of Appeal has decided that co-workers can be liable to an employee who has been dismissed for whistleblowing.

See case: Timis and another v Osipov (Protect intervening)

Improper use of NDAsFollowing the Court of Appeal recent decision to stop the Telegraph from publishing allegations of discreditable conduct that were protected by non-disclosure agreements (NDAs), Theresa May said that the government would review the potentially unethical use of NDAs. It likely that clearer guidance or regulation will follow.

See: Inquiry launched into NDA use for any form of harassment and discrimination

Top tips for treating staff fairlyACAS has published new advice providing ‘top tips’ for employers on how to treat their staff fairly. The new advice comes as research revealed only one in four organisations have adapted their performance management processes to accommodate staff with special needs, disabilities and conditions, such as dyslexia and autism.

See: Acas publishes new guidance for employers to implement fairer performance management processes

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