Commercial news vlog - November 2020: C-19 Job Retention Scheme, Business Interruption Insurance and Subject Access Requests

Commercial news vlog - November 2020: C-19 Job Retention Scheme, Business Interruption Insurance and Subject Access Requests

 

 

 

COVID

COVID measures extended

The Government has announced extensions of measures to help businesses through the pandemic, including:

  • the allowance for companies to hold AGMs virtually until 30 December;
  • restrictions on statutory demands and winding-up petitions until 31 December;
  • modifications to the new moratorium procedure, which relax the entry requirements to it, until 30 March 2021.

It’s important to note, however, that the temporary suspension of personal liability of directors for wrongful trading has not been extended.

Practice Note: Coronavirus (COVID-19)—holding general meetings and AGMs

Practice Note: Corporate Insolvency and Governance Act 2020—temporary changes to corporate statutory demands and winding-up petitions

Practice Note: Corporate Insolvency and Governance Act 2020—temporary changes to the wrongful trading regime

News Analysis: Corporate Insolvency and Governance Act 2020—extension of temporary measures

Coronavirus Job Retention Scheme

The Coronavirus Job Retention Scheme (CJRS) has also been extended until March 2021. Initially, the level of support available under the extended scheme mirrors that available under the CJRS in August, with the Government paying 80% of wages up to a cap of £2,500 (although the % payable will be reviewed in January). Flexible furloughing is allowed under the extended CJRS, as well as full-time furloughing. The Job Support Scheme, which was scheduled to come into effect on 1 November, has been postponed until the CJRS ends.

News Analysis: CJRS extended to end of March 2021, JRB and SEISS amended

Precedent: Letter—from employer to employee regarding flexible furlough arrangements (extended CJRS from 1 November 2020)

 

Business Interruption insurance

In September the High Court ruled on the Financial Conduct Authority (FCA) case that sought clarification on behalf of business interruption insurance policyholders– following the insurers refusal to pay out claims that arose from the pandemic.  The Court only reviewed a sample of policy wordings and agreed with the FCA on most issues.  Whilst each case will need to be decided on its own facts and circumstances this decision will be welcome news for most policy holders.  This is not however the end of the story as an appeal to the Supreme Court is scheduled for four days commencing on the 16th November.

Practice Note: Coronavirus (COVID-19)—business interruption insurance

LNB News: FCA business interruption test case—Supreme Court grants permission to appeal

 

Corporate & Commercial

Supply chain due diligence

The need for improved supply chain due diligence was highlighted in Alison Levitt QC’s recent independent report into the fashion giant, Boohoo. The report confirmed an earlier Sunday Times’ investigation that revealed poor working conditions and low rates of pay at some of Boohoo’s UK suppliers and inadequate corporate governance by Boohoo’s management. The report identified that Boohoo’s senior management had been aware of serious issues about the treatment of factory workers since, at least, December 2019.

This news will inevitably support the Government new plans to strengthen the existing modern slavery reporting requirements. These include new compulsory contents of modern slavery statements and an obligation to publish the statements on a government-run reporting service.   

In addition, the Government has announced that it is developing legislation that would require large businesses to audit their supply chains to ensure they are not using ‘forest-risk commodities’ that have been produced unlawfully.

Practice Note: Assessing modern slavery risk in supply chains

Practice Note: Supply chain sustainability

Toolkit: Supply chain management toolkit

Checklist: Modern slavery checklist

Precedent: Modern slavery: contract clauses

Precedent: Slavery and human trafficking statement

 

Data security

Controller, Joint Controllers and Processors

Data Protection law places different obligations on parties depending on whether a party controls or jointly controls how personal data is used or is simply processing personal data on behalf of a controller. Deciphering which obligations are applicable is sometimes difficult. The European Data Protection Board (‘EDPB’) has published new guidelines (available on the EDPB website) on these concepts to hopefully provide more clarity.

Practice Note: Determining roles under data protection law in commercial transactions between businesses (processor, independent controller or joint controller)

Age Appropriate Design Code

The Age Appropriate Design Code came into force in September, although it does allow a one year transition period. It applies to organisations providing online services and products likely to be accessed by children up to age 18 and sets out 15 standards how they should comply with data protection law.

The Code expects organisations to:

  • create an open, transparent and protected place for children when they are online;
  • follow a series of standards when designing, developing or providing your online services where they are likely to be accessed by children;
  • consider the best interests of the child when processing their personal data. The code applies to apps, connected toys and devices, search engines, social media sites and online games; and
  • implement high privacy settings by default and use language that is clear and easy for children at different development stages to understand.

Practice Note: Children and data protection law—code of practice for online services

Practice Note: Children and data protection law

Subject Access Requests

Individuals, with a few exceptions, have a right to access personal data that organisations hold about them. This right known as a Data Subject Access Request (DSAR) is a common headache for organisations, particularly when the requests are frequent and unclear. The UK data regulator, the Information Commissioner’s Office (ICO) has now published further guidance for organisations on how to deal with DSARs. The guidance runs to 81 pages, but we think there are three key points, as follows:

  • Organisations must provide copies of the individual’s personal data within one month of receipt of the request.  The guidance however clarifies that the clock can be stopped to seek clarification of the DSAR.  Extensions of up to two further months are also allowed where necessary.

     

  • Employers can only charge a ‘reasonable fee’ for the administrative costs of complying with a DSAR if:
    • it is manifestly unfounded or excessive; or
    • an individual requests further copies of their data following a request.
  • While an employer must make genuine and extensive efforts to respond to a DSAR, it does not have to go so far as to leave no stone unturned. The DSAR requirements are subject to the principles of proportionality.

Practice Note: Rights of data subjects

Cyber-attacks, big data fines and insurance

Big fines have been issued against British Airways (£20m) and Marriot Hotels (£18.4m) following findings that insufficient security had allowed cyber-attackers to access personal data.  Whilst the fines are big, they were slashed from the original fine notices of £183m and £99m respectively – due to new ICO methodology of calculating the fines, mitigating representations and the impact of the COVID-19 pandemic.  Both businesses also face class actions from individuals whose personal data was compromised.

The BA penalty notice (available on the ICO website) is worth reading as it provides some helpful guidance on how organisations can ensure that they have appropriate security measures in place.  It’s also worth noting that the ICO has issued a consultation about the calculation of fines.  This consultation closes on the 12th November.

These cases highlight that Cyber-attacks are common threats to all businesses, but cyber insurance is often overlooked by businesses mistakenly thinking that it will be covered by other policies. The National Cyber Security Centre (NCSC) has published guidance  for organisations of all sizes who are considering purchasing cyber insurance.

Practice Note: Cybercrime—issues, threats and vulnerabilities

Practice Note: Managing personal data breaches,

Practice Note: Cybercrime incident management

Practice Note: GDPR enforcement by UK and EEA supervisory authorities—tracker

Practice Note: Cybercrime prevention

Practice Note: Responding to a GDPR compensation claim—a practical guide

Practice Note: Cyber insurance—the essentials

 

Employment

Equality Act - Gender fluid/non-binary

A recent tribunal decision has found that person who identified as gender fluid/non-binary is protected by the Equality Act 2010 and was awarded £180,000 compensation for discrimination that she had suffered.

News Analysis: Gender fluid and non-binary people protected by Equality Act and Practice Note: Transgender and other gender issues

Monitoring employees

H&M has been fined €35m by the Hamburg Data Protection Authority for privacy violations that included extensive staff surveys that collected details of holidays, medical symptoms and diagnoses for illnesses. The information was used build a profile of the employees which was then used in making employment decisions. H&M has provided an unreserved apology and explained that the staff will receive compensation.

Uber is also under the spotlight for employee monitoring.  A claim brought in the Netherlands on behalf of Uber drivers is challenging whether Uber broke data protection laws which, broadly, prohibit decisions that have significant effects on individuals being made solely via automated processing.  Uber is defending the claim by stating that its algorithm merely identified the suspicious activity, with human managers then reviewing the evidence and making final decisions. Uber’s case is however not helped by its own privacy policy, which states that it uses automated decisions to deactivate drivers suspected of fraud.

Practice Note: Monitoring staff, IT and communications systems in the workplace

Precedent: Policy—internet, email and communications

Liability for employees’ actions

In Chell v. Tarmac Cement and Lime Ltd, the High Court held that an employer was not liable for a contractor’s personal injury suffered in its workplace because of an employee’s practical joke. This follows the Supreme Court’s decision in Morrison Supermarkets plc v. Various Claimants earlier this year that stated an employer is not liable for the acts of an employee if those actions are unconnected with any instruction given to the employee in connection with his or her work and did not in any way advance the purpose of his employer.

Practice Note: Liability of employers for the acts of their employees and others

Case Tracker: Vicarious liability—case tracker

News Analysis: Employer not directly or vicariously liable for personal injury from practical joke gone wrong (Chell v Tarmac)

Cases, laws, decisions referred to in this Bulletin

1 The Financial Conduct Authority v - Arch Insurance (UK) Limited and others, [2020] EWHC 2448 (Comm) Case No:  FL-2020-000018
2 Taylor v Jaguar Land Rover ET1304471/2018
3 Chell v Tarmac Cement and Lime Ltd [2020] EWHC 2613 (QB)
4 Morrison Supermarkets plc v. Various Claimants [2020] UKSC 12, UKSC 2018/0213

 

Disclaimer

Nothing in this Bulletin, or on the associated website, is legal advice. We have taken all reasonable care in the preparation of this Bulletin, but neither we nor the individual authors accept liability for any loss or damage (other than for liability that cannot be excluded at law).

 

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About the author:

Louisa leads marketing for the in-house legal community at LexisNexis. She joined the dedicated in-house team at LexisNexis four years ago and has a passion for driving and facilitating initiatives which are customer-focused at their heart. Her vision is to support in-house counsel succeed in their fast-evolving role based on deep insight, data analysis and best practice gathered across the in-house community.

Prior to her in-house focused role, Louisa led the marketing for the bar and mid-market private practice sectors as well as product marketing lead for LexisPSL - LexisNexis' cloud based, practical guidance and legal research software solution.

She brings 20 years' marketing experience both client and agency side, specialising in B2B marketing in the Legal, TMT (Telco, Media and Technology) and Financial Services industries. In both South Africa, Europe and the UK.

Louisa is also an active member on the LexisNexis Gender Equality Matters (GEM) steering committee and is involved with the Families at LexisNexis Group which brings together, supports and lobbies for change those with an interest in balancing the challenges of work and family.