Commercial news update – June 2018: Variation of contracts, GDPR updates, pay freeze and mishandling whistleblower reports

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This month we provide updates across corporate & commercial, data security, employment, and bribery and corruption.

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

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This month, we cover the following:

Corporate & Commercial—tune in from 0:12 secs

Variation to contracts - The Supreme Court decided that an oral variation of a licence agreement, which contained a clause requiring all variations to be in writing, was invalid.

Merger Control - The Competition and Markets Authority (CMA) may intervene in any merger if the turnover of the target exceeds £70m (‘Turnover Test’) or if the combined market share is or exceeds 25% (‘Share Supply Test’).

Termination clauses and limits of liability - A recent court decision for contract termination clauses and limits to liability found that where the defaulting party has a right to not proceed with the contract, it will limit the innocent party’s claim.

Directors prosecuted for health and safety breaches - A company, Skip-It Containers Ltd and its two directors have been prosecuted following an incident where an employee’s arm was caught in a conveyor belt. The company was fined £120,000 and the directors were given 16-week custodial sentences, suspended for nine months, as well as significant personal fines. These prosecutions again highlight the HSE’s more robust approach to prosecuting poor health and safety practices.

Data Security—tune in from 3:00 secs

Network and Information Systems Regulations 2018 - On 10 May the Network and Information Systems Regulations 2018 came into force in the UK. This imposes new rules on Operators of Essential Services (OES) and Digital Service Providers (DSP).

GDPR updates – Article 30 does not exempt companies with less than 250 employees from maintaining record of processing. The ICO has updated its guidance on the right to data portability.

Employment—tune in from 4:50 secs

Pay freeze – The Court of Appeal decision in Abrahall and others v Nottingham City Council5 has sent a stark warning to employers that assume that an employment contract variation has been agreed.

DBS Check Guidance - The Home Office and the Disclosure and Barring Service have updated their guidance for employers on requesting DBS checks for potential employees. The new guidance is available on the government website.

When does notice take effect? - In a recent case, an NHS Trust sent a letter making an employee redundant, but there was a dispute about when the notice was given.

Are men entitled to enhanced paternity pay? - We reported last month on the case of Ali v Capita7 that determined that Mr Ali was not entitled to enhanced 14 weeks paternity pay. Another Employment Appeal case on the same point found errors in the way the employment tribunal dismissed the claim. We await to see how this case develops.

Itemised pay statement for all - Implementing one of the Taylor Review suggested reforms, the Employment Rights Act 1996 has been amended and with effect from 6 April 2019 every worker (rather than only employees) will have the right to an itemised pay statement.

Bribery & Corruption–tune in from 7:35 secs

Mishandling whistle blower reports - The CEO of Barclays Mr James Staley has been fined £642,430 for his failing in connection with a whistle-blower report.

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