February In-house newscast

February In-house newscast



Get to grips with the top stories for in-house lawyers with our monthly newscasts brought to you by Radius Law and LexisNexis.

We have scoured the news and therefore are bringing you the most compelling news that's relevant to you - watch, listen, read (see below) or download your crucial monthly update.

This month's top stories...

Employment: Is obesity a disability?
In a recent landmark European ruling it has been held that obesity in some instances will be considered a disability and therefore subject to disability discrimination law. Regretfully, the European Court has not given precise rules when this will be the case, but it seems that if the obesity restricts an individual’s ability to actively and fully engage in their work then it is likely to be considered a disability.  This case has significant ramifications for employers. If obesity may be considered a disability then employers in some circumstances will need to make appropriate adjustments for such staff.  We’ll keep an eye on developments in this area and, of course, keep you up to date.

Remote working
Relocating to Australia would have previously meant finding a new job, but if your job allows for remote working then why not work from the other side of the world?  In a recent case an employee had continued working for her UK employer after emigrating.  All good so far, but when a dispute arises does the relocation affect the employee’s legal rights?  The tribunal in this case gave an unequivocal, no; this does not alter the employee’s rights.  The employee in this case was still entitled to bring a claim under the Employment Rights Act.

Employment holiday pay saga
Following the decision in November last year requesting employers to include regular overtime in holiday pay calculations; concern has mounted about the risk to employers facing significant back-dated claims.  To restore business confidence the Government announced in December that it would make changes to the Employment Rights Act to limit backdated claims to a maximum of two years.  Workers still however have six months to make claims as the changes will not apply until 1 July 2015.  The real effect of the governments announcements are however questionable as the November ruling had already placed severe restrictions on the prospects of backdating claims.  The majority of people under this ruling would be limited to a 12 month period in any event.

Data Protection: Device finger printing
The European Data Protection Working Party that is made up of representatives of 27 EU data protection authorities, including the UK’s ICO, has published its opinion on device fingerprinting.
Device fingerprinting works by collecting a number of pieces of information about a computer or other devices. Although individually, each piece of information is not unique or identifiable, the combination of all of the different pieces of information can create a unique identifier.
The practical effect is therefore similar or the same to using cookies that allow businesses to obtain information about visitors to their websites.
Whether device fingerprinting is covered by the existing cookie laws is questionable, the view of the European Data Protection Working Party is that such online technologies do require an individual’s consent before being placed on a person’s electronic device.

Covert surveillance on an employee
Caerphilly Council has been warned by the ICO about its conduct after carrying out covert surveillance on an employee.
The surveillance had been authorised on anecdotal evidence and began only four weeks into the employee’s sickness absence. No other measures were taken to discuss the employee’s absence.  The ICO has re-emphasised its view that covert surveillance should only be used as a last resort and when less intrusive alternatives have first been considered and determined as not appropriate. The ICO’s website has guidance on the circumstances when it is appropriate to monitor employees at work.

Corporate: New regulations for naming companies
From the end of January new regulations were effective to consolidate the rules relating to the naming of companies, limited liability partnerships (LLPs) and trading disclosures.  The changes include:
• the list of characters that can be used in a company name has been extended (currently businesses can only pick from the Roman alphabet and a few additional characters);
• the rules concerning how to deal with company names which may be considered the same have been changed, e.g, Stone Company Ltd will now be treated the same as Stone and Company Limited;
• the list of words and expressions to be ignored when considering whether names are the same has been reduced, the terms 'export', 'group', 'imports' and 'international' have all been removed;
• if six or more companies operate from one location, they will no longer have to display the company name at all times. Instead, they can be shown in rotation (i.e. digitally), or be available for inspection.
In a separate set of regulations, in force from the 31 January, a revised list of names that the Secretary of State must approve for use in a company or LLP name.  26 words have been removed from the list including “European”, “International” and “United Kingdom” so those words can now be used without first obtaining permission.

Intellectual Property: Enterprise Holdings Inc v Europcar Group UK Ltd 
The judgment in the battle between Europcar and Enterprise over the use of the letter ‘e’ was handed down in January. The facts, briefly, are that Enterprise has been using a stylised ‘e’ as a logo since 1969 and in 2012 Europcar also started using a stylised ‘e’, albeit in a different font but with similar green colours.
Enterprise commenced proceedings against Europcar for trademark infringement and passing off.  Enterprise’s claim was slightly hampered by some of its trademarks being subject to cancellation proceedings and was therefore forced to focus on the infringement of its community trademark which was registered in black and white.  Nevertheless the court found in favour of Enterprise following some significant evidence that consumers had been confused by the two brands.
This case does not make new law but re-emphasises the risk of confusion is key in determining whether a case for trademark and / or passing off will be successful.  For businesses it is a good reminder of the importance of taking a cautious approach when there is a risk of brand confusion. Those familiar with the brands would not have been confused but, of course, the true test in most cases will be whether the general public are confused.

Advertising: Copywatch
Many companies are unaware of the need for a copyright licence for actions such as making copies of press cuttings. To increase awareness, the Copyright Licensing Agency (CLA) has launched a redesigned website for its compliance arm, Copywatch. The redesign aims to make it easier for licensees to understand compliance in the workplace by providing both employers and employees with information that allows them to make informed decisions about copyright licences. Interestingly, it also includes a simple form for employees to report when their employers breach copyright law.

Dispute Resolution: Subject to contract
The High Court held in a recent case that the parties had settled their litigation by an agreement contained in an exchange of emails. Although the settlement agreed by the parties contemplated that a court order would be filed at court, the judge found that settlement was not conditional upon the formal court order.  This case is a clear reminder of the need to include appropriate words e.g. 'subject to contract' if you do not wish to be bound by the correspondence.

Financial Services: Disclosure of conflicts of interest
The Upper Tribunal has rejected an appeal by a non-executive director who failed to declare a conflict of interest. The Financial Conduct Authority (FCA) imposed a financial penalty of £154,800 and made a prohibition order. These sanctions were based on the FCA's findings that she had misused her non-executive director position, advanced her own commercial interests and failed to disclose conflicts of interest. The case emphasises the need for directors to make regular, up-to-date declarations of interest and the increased regulatory burden on directors, particularly in sectors such as financial services.

The FCA has announced a new consultation on proposals to limit sales of GAP insurance when it is sold as an ancillary product.  Typically GAP insurance is sold at the point of sale of a motor vehicle.
There have been concerns that often the consumer does not have sufficient information to make an informed decision at that point.  The FCA’s market study in 2014 found that consumers were often buying GAP insurance without having previously thought about the product or considering alternatives, therefore not always getting the best deal.
The FCA's key proposals are to require any businesses selling GAP as an ancillary product to encourage customers to shop around and to introduce a deferred opt-in or pause in the sale. A dealership sales person can start the sales process but can’t conclude the sale for a set time period, giving customers time to consider whether they need the product at all and perhaps shop around if they do.
The FCA has requested feedback by the 13 March and has advised that it plans for new rules to be effective from September.

Anti-Bribery: SFO gain first convictions
The Serious Fraud Office (SFO) obtained its first convictions under the Bribery Act on 5 December 2014. Sentences of 28 years in total were imposed on three men. Two of those accused were convicted of offences under the Bribery Act. The offences followed an investigation by the SFO into Sustainable AgroEnergy Plc. These are not the first Bribery Act convictions, previous prosecutions have related to a relatively minor activity, including the conviction of the magistrate's court clerk who took a £500 bribe to remove a speeding conviction from a court record and the conviction of a Chinese student who tried to bribe his university professor. The prosecution in this case followed an investigation into offences that took place between April 2011 and February 2012. The defendants were found to have been involved in a pension investor scam where people were encouraged to invest in a bio-fuel scheme that was supposed to yield huge returns. The scheme was a sham and investors were defrauded of around £23m. There are some interesting points to note from this case:
• the speed with which the case was processed—the men were charged relatively recently on 14 August 2013;
• the fact that both the bribe payer and the bribe receiver were prosecuted—under the Bribery Act it is no longer better to give than to receive a bribe;
• the fact that the SFO will take on bribery cases with an international element—this case had Swiss bank accounts, foreign companies and misrepresentations about land in Cambodia; and
• the fact that this prosecution was successful—bribery and corruption cases have been notoriously difficult to prosecute in the UK and abroad.

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About the author:
Helen Hart studied in Cardiff and Germany and qualified as a solicitor in 1998 after a training contract at Allen & Overy in London and Frankfurt. She spent over six years working in-house at Centrica plc and Palm Europe Limited focusing mainly on consumer, advertising and data protection law before returning to private practice at Stevens & Bolton where she was an associate in the corporate and commercial team. She worked for a legal publisher between 2008 and 2012 and has also worked in local government library services. Her main areas of expertise are general commercial law, advertising law and consumer law.