In-house commercial legal news January 2019: Changes to ePrivacy Regulation, the Gig economy and Geo-blocking laws

Welcome to 2019!

Here's an overview of the in-house legal horizon for 2019.

You will find updates across Brexit, Corporate & Commercial, Data Security, Employment, Consumer and Competition law.

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

Watch this video or click on the content/links below for more information.

 

Brexit watch

The UK is currently scheduled to leave the EU on the 29th March 2019. There are broadly three options: a 'cliff edge' no deal and transition to the WTO rules; remaining in the EU or  transitional arrangements which are proposed to end on 31 December 2020.

Until a decision is made, it’s difficult to make plans however we recommend some contingency work, particularly for businesses that rely on European workers.  European workers currently living in the UK will be able to apply for settled status in 2019, allowing them to remain indefinitely in the UK.

We’ll keep you updated with practical guidance as the Brexit news develops.

Corporate & Commercial

Corporate Governance reforms

New annual corporate governance reporting requirements will apply to financial years starting since the 1st January. 

See LNB News: New corporate governance code for large private companies launched and Practice Note: Corporate governance for private companies

Data security

Planned changes to the ePrivacy Regulation

The European Commission's planned replacement of the existing Privacy and Electronic Communication Regulations (‘PECR’) was postponed in 2018 and we do not yet have any implementation date but anticipate that it will be in the second half of 2019.

The proposed regulation has some worrying changes - further information on these can be found via the link below.

See: ePrivacy Regulation—timeline

Employment

Gig economy

We expect to hear the final determination of the Court of Appeal King v Sash Window case. In this case it has already been decided that King was wrongly classified as self-employed rather than being a worker. The outstanding question is how much holiday back pay he should be paid. 

The Taylor review in 2017 also focussed on the gig economy and made many recommendations. One recommendation was to ensure every worker (rather than only employees) has the right to an itemised pay statement. Following an amendment to the Employment Rights Act 1996 this change will be law from 6 April.

See LNB News: Government’s Good Work Plan to take forward Taylor Review recommendations

Equal Pay

There were some important cases on equal pay in 2018 involving the big supermarkets. Asda's case is the most advanced and was heard by the Court of Appeal in October. We expect to hear the outcome early this year but suspect that there will be further appeals.

Shared paternity leave

Last year’s Employment Appeal Tribunal (EAT) decisions in Ali v Capita Customer Management Ltd and Hextall v Chief Constable of Leicestershire Police both related to shared parental leave and whether it is sex discrimination to deny male employees the chance to receive enhanced pay whilst taking shared parental leave equivalent to the enhanced maternity pay available to female colleagues.  The EAT decisions had some inconsistencies and both are being appealed to the Court of Appeal. Its expected that the hearings will take place separately in May.

Gender pay gap reporting

Private organisations with 250 or more employees will again be required to publish their gender pay gap figures on the 4th April. We anticipate that they will be heavily scrutinised to identify what efforts have been made to address any significant pay disparity highlighted in the 2018 figures.

See LNB News: EHRC calls on employers to take meaningful action against the gender pay gap

Pay rates and a rise in minimum contributions to auto-enrolment

There will be the usual rises to minimum wage rates in April and the minimum contributions for auto-enrolment pension schemes will increase for both employers from 2% to 3% and employees from 3% to 5%.

Consumer

The Governments 2018 Modernising Consumer Markets consultation set out three principles to improve consumer markets:

  • competition should be central to the UK’s approach;
  • consumers should benefit from new technology and new business models with competition and regulation working for consumers; and
  • consumers should be able to obtain redress when things go wrong.

Some of the proposed regulatory changes include:

  • all consumers to get a good deal – not just those who shop around;
  • improved transparency in the way that pricing and other personalisation works;
  • terms and conditions to be shorter and simpler – as reports have shown that fewer than 1% of shoppers open the terms and conditions;
  • removing subscription traps; and
  • more power to law enforcers to allow them to ask the courts to impose fines, as a standalone remedy with a proposed financial penalty of up to 10% of a firm’s worldwide turnover.

There’s not yet a time-line on these plans although we are already seeing action in some areas.

In September last year the Citizens Advice Bureau launched a super complaint to the Competition and Markets Authority over its concerns that loyal customers who stay with their providers (often on default or roll over contracts) can end up paying significantly higher rates than new customers enticed with more favourable offers and rewards.

In addition, the EU has announced its planned package of reforms to deliver a  new deal for consumers, these include:

  • GDPR level fines for breaches that cause ‘mass harm’;
  • making it easier for consumer bodies such as Which to bring group actions to seek redress on behalf of consumers that have been harmed by an illegal commercial practice;
  • new rights for consumers to seek compensation when they have been affected by unfair commercial practices, such as aggressive or misleading marketing;
  • more transparency for sales on on-line market places.

We expect the proposals to be law by May 2019 but that there will be a 2-year transition period.

Competition

Geo-blocking laws

Since the 3rd December, new laws have prohibited traders selling goods or services (subject to certain exceptions) in the EU from unjustified discrimination on the grounds of nationality, place of residence or place of establishment in the EU.  The classic form of discrimination that the law aims to stamp out are websites that automatically re-route a user to the website that’s aimed at the country where that user is resident.  As this law has now been implemented it’s important to review the operation of websites and terms and conditions to ensure there is no unjustified discrimination.

See Practice Note: The EU Geo-blocking Regulation

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