Commercial news update November 2017: corruption, offshoring and unjustified threats

Red skies, autumn leaves—the nights may be drawing in but there’s no shortage of legal developments.

Welcome to our Commercial news update for November, created in partnership with Radius Law. From transfer rights when offshoring, to a new way to trademark holograms, to being fully prepared with the Criminal Finances Act now in force, we bring together in one place the key news relevant to in-house lawyers.

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

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This month, we cover the following.

Corporate & Commercial—tune in from 0:12 seconds

When the Braganza duty applies… discretion in a contract must be reasonably exercised under the Braganza duty, a duty examined in the recent Forex trading case of Shurbanova v Forex Capital Markets [2017] EWHC 2133 (QB). The broker revoked the claimant’s trading on the basis of a contractual clause forbidding abusive trading strategies. The high court held the Braganza duty did not apply because the clause raised an objective question.

Employment—tune in from 2:25 secs

New caselaw on TUPE and offshoring… the EAT found that TUPE can only protect employee’s terms not enhance them, leaving Xerox employees in Yorkshire with a Hobson’s choice when their jobs transferred to another group company in the Philippines, in Xerox Business Services Philippines Inc Ltd v Zeb UKEAT/0121/16/DM.

Compensation includes pensions… ‘a week’s pay’ includes employer pension contributions, the EAT has held in University of Sunderland v Drossou UKEAT/0341/16/RN, a decision that is likely to have far-reaching consequences.

Part-time workers and proportionality… employers must not offer part-time workers less favourable treatment, as demonstrated by the recent case of British Airways v Pinaud UKEAT/0291/16/DA.

Intellectual property—tune in from 4:52 seconds

Changes to trademark law… holograms can now be trademarked, thanks to changes to the EU trade mark regime on 1 October 2017 including dropping the requirement for trademarks to be graphically represented.

New legislation on unjustified threats… on 1 October, the Intellectual Property (Unjustified Threats) Act 2017 came into force, clarifying which communications are permitted and what is considered a threat.

Bribery & Corruption—tune in from 6:16 secs

Ignorance is no defence… from 30 September 2017, the Criminal Finances Act 2017 makes companies and partnerships criminally liable if they fail to prevent an employee or external agent committing tax evasion, even if the business was unaware the offence was taking place. Previously, only individuals could commit the offence. Corporates can rely on the defence of showing they had reasonable prevention procedures in place.

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