Commercial news update November 2018: ICO fees, Tribunal fees and Competition law awareness

Your updates across corporate & commercial, data security, advertising & marketing, employment, consumer and competition.

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

This month, we cover the following.

Brexit Watch

In October, Theresa May did send one clear message that Britain will not continue to give EU nationals preferential immigration treatment after Brexit, but that waivers of visa requirements may continue on a reciprocal basis with countries.

See News.

Corporate & Commercial

Director duties - In Wessely v White, a director of an insolvent company mistakenly signed deeds terminating two of the company's contracts mistakenly believing that he was novating the contracts.

See News Analysis: Interests of creditors are paramount where a company is insolvent (Wessely and another v White)

Letter of Intent - In the case of Hyder Consulting v AMEC, AMEC issued a letter of intent (‘LOI’) to Hyder to govern various projects.  The LOI included a cap on Hyder’s liability. Hyder acknowledged receipt of the LOI and wrote noting that certain items still needed to be agreed for incorporation into the formal contract. The formal contract never materialised.

See News Analysis: Court of Appeal holds that liability cap had been incorporated into contract (Arcadis v AMEC

Data security

Morrisons liable for rogue employee data leak - a rogue Morrisons Supermarket employee deliberately leaked payroll data of 5000 employees. Worryingly, The Court of Appeal agreed with an earlier court decision that held Morrisons liable as there was a ‘sufficient connection’ between the rogue activity and his employment.

See News Analysis: Court of Appeal confirms organisation liable for employee’s data breach, even though not at fault (Wm Morrison Supermarkets plc v Various Claimants)

ICO Fees - The Information Commissioner’s Office has begun enforcement against 34 organisations that have failed to pay their data protection fees.

See: ICO begins enforcement action for failure to pay new data protection fee

Advertising & Marketing

Online endorsements - The Competition and Markets Authority (CMA) launched an investigation earlier this year into concerns that celebrities do not properly declare when they have been paid or rewarded (in any form) to endorse goods or services.

See: Guidance released for influencers on advertising


Tribunal fees - In July 2017 the Supreme Court abolished employment tribunal fees and unsurprisingly there has been a significant increase in claims. Single-claim cases are up by 165% to 10,996 compared with the same period in 2017 when the fees still applied and multi-claim cases are up 344% to 42,700 although just one claim against a large airline accounts for 23,000 of those claims.

See News Analysis: Employment tribunal and EAT statistics for the year April 2017 to March 2018

Ethnicity pay gap - The government has started consulting on mandatory ethnicity pay gap reporting. The consultation seeks views on the scope, method, challenges and benefits of ethnicity pay reporting.

See News Analysis: Revealing the race pay gap

‘Gay Cake’ case – no direct discrimination - The Supreme Court has decided that a baker did not discriminate when it refused to bake a cake containing a message supportive of gay marriage.

See News Analysis: Supreme Court rules no discrimination over cake with message supporting gay marriage (Lee v Ashers Baking Company Ltd and others)

Changes to employment terms after transfer of employment - If an employer has had employees transfer to it following a TUPE transfer (e.g. where the employer has taken over the operation of a service and the employees have transferred) any changes to employment contracts of the transferring employees ‘because of the transfer’ will usually be void.

See: Tabberer and others v Mears Ltd and others


Super complaint - The Citizens Advice Bureau has launched a super complaint to the Competition and Markets Authority over its concerns that loyal customers who stay with their providers of certain products, such as household insurance or mobile phone contracts, can end up paying significantly higher rates than new customers who are often enticed with more favourable offers and rewards.

See: CMA investigation: December deadline for CMA response to super-complaint on 'loyalty penalties''


Competition Law awareness - The Competition and Markets Authority (CMA) has conducted market research on awareness of competition laws. This has produced some surprising results.

See: CMA: Launch of cartel awareness campaign; survey reveals patchy but improving business awareness of competition law

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