Latest legal and regulatory news: 20th May

Latest legal and regulatory news: 20th May

In this issue:

In-house resources

Risk & Compliance

Commercial

Information Law & TMT

Corporate

Employment

LexTalk®In-house: a Lexis®PSL community


 

In-house resources

 

Crafty Counsel videos available in Lexis®PSL

LexisNexis® has entered into a content sharing partnership with Crafty Counsel, the market-leading provider of video guidance for in-house lawyers.

A wide selection of Crafty Counsel videos are now available within Lexis®PSL—you can find them in the ‘Training for you and your team’ topic within Lexis®PSL In-house Advisor and they are also available alongside practical guidance and tools in related Lexis®PSL subtopic areas. For quick reference, Practice Note: Crafty Counsel videos in Lexis®PSL In-house Advisor contains a consolidated list of all the videos available.


 

Virtual networking and forum events

There’s no need to feel isolated if you’re working from home—join one of our virtual networking or forum events. Even if you aren’t working from home, take some time to network with your peers, find out what challenges they’re facing and how they are meeting those challenges.

26 May 2021
Your essential regulatory and commercial news update: Brexit, COVID-19, Data Protection and more
Register now to attend
Iain Larkins, Founder and CEO from Radius Law and Sandra Martins, Head of Employment, will highlight the key priorities for legal departments from recent government and regulatory guidance updates and recommended practical next steps to consider, including Brexit and COVID-19 Stop Press alerts and how to prepare for the outcome of an adequacy decision.
23 June 2021
The power of an effective learning, development and training strategy
Register now to attend
In this session we explore how a robust approach to learning, development and training can benefit you, your team and your organisation to tangibly demonstrate the value of the legal department. Interactive discussion led by senior counsel and subject matter experts will explore practical approaches on how to deliver effective training to the business; top tips on how to implement a learning and development programme for you and your team; and the opportunities presented by the SQE and the day-to-day implications to consider in the immediate future.
Various dates
LexisNexis® Aspire Forum for Junior In-house Lawyers
To register your interest in joining the events, sign up as an Aspire member today
Aspire is a professional development and networking forum for junior in-house counsel. We have several events planned for the new year to continue supporting you through these uncertain times and provide a platform for you to connect with your peers. Events take place at the same time each month, from 5pm to 6.30pm.

 


 

 

Risk & Compliance

 

Risk & Compliance forecast

Our new Risk & Compliance forecast (as at 18 May 2021) is now live. This month, we report on issues including (1) the government’s progress report on its economic crime plan; (2) a call for views on supply chain cybersecurity; (3) the ICO’s data sharing code of practice; and (4) whistleblowing. You can rest assured we're tracking forthcoming regulatory changes so you can plan ahead. See Practice Note: Risk & Compliance forecast as at 18 May 2021.


 

Cybersecurity

Law360: The US Biden administration has taken a major step toward curtailing a growing scourge of cyberattacks with a new executive order that not only imposes heightened cybersecurity requirements on the federal government and its contractors but also sets a strong example that's likely to rub off on private companies. See News Analysis: Biden’s cybersecurity order likely to reach beyond US Government.

The Department for Digital, Culture, Media & Sport (DCMS) has announced a call for views on supply chain cybersecurity and wishes to obtain industry input on how organisations manage supply chain cyber risk. The call for views will close at 23:59 on Sunday 11 July 2021. See: LNB News 17/05/2021 62.


 

Data protection

One of the most overlooked obligations in the EU’s General Data Protection Regulation (EU GDPR) is the requirement for organisations that are subject to EU GDPR but outside the EEA to appoint a data protection representative (DPR). But that’s likely to have much more attention now with the fine announced on 12 May 2021 for Locatefamily.com from the Netherlands supervisory authority (the Autoriteit Persoonsgegevens or AP) for failure to appoint a DPR. Jonathan Armstrong and André Bywater of Cordery explain. See News Analysis: Locatefamily.com fined €525,000 for failure to appoint data protection representative.

 

The Information Commissioner’s Office (ICO) has fined Tested.me Ltd £8,000 for sending nearly 84,000 nuisance marketing emails using data acquired for contact tracing during the coronavirus (COVID-19) pandemic. The company provides digital contact tracing services, by offering QR codes for people to scan when entering businesses. In a separate investigation, ICO contacted 16 QR code providers to ensure personal data was being utilised correctly. See: LNB News 18/05/2021 108.

 

The ICO has published a statement in response to the Data Sharing Code of Practice being laid before Parliament on 18 May 2021. The statement welcomes the code, noting that it ‘aims to give businesses and organisations the confidence to share data in a fair, safe and transparent way, and it dispels many of the remaining myths about data sharing’. The code is to lay before Parliament for 40 sitting days before it comes into force. See: LNB News 18/05/2021 15.

 

Financial crime prevention 

MLex: A new EU-wide money laundering watchdog will hold both supervisory and intelligence functions to fight illicit financial flows across the EU by 2026, the EU’s Financial Services Commissioner, Mairead McGuinness, has said. See News Analysis: EU money-laundering regulator to hold supervisory, intelligence functions, McGuinness says.

Law360, London: Iranian banks and businesses should be allowed to ask EU courts to invoke a blocking law if they think a company has cut ties over fears of violating US sanctions, a legal adviser has told the EU's top court. See News Analysis: EU courts told to let Iranian companies use sanction blocking law.


 

Coronavirus 

The Health and Safety Executive (HSE) has announced that it is collaborating with local authorities in conducting spot checks and inspections on local business as lockdown measures ease during coronavirus. If businesses do not adhere to current guidance, action will be taken in the form of prosecution. See: LNB News 14/05/2021 81.


 

Commercial

 

Contracts

In Donovan v Grainmarket Asset Management, the parties entered into a joint venture agreement to attract investors for the development of certain properties. Their agreement had been reached by a mixture of written and oral communications and by conduct, and lacked any degree of formality. The judge at first instance found that Mr Donovan was entitled to an agreed fixed percentage of the fees which the investors paid to Grainmarket Asset Management (GAM) when the properties were managed, developed and sold. On appeal GAM asserted that the payments to Mr Donovan were, inter alia, conditional upon his performance and/or that the agreement had been wrongly terminated by Mr Donovan. The Court of Appeal dismissed GAM’s appeal on all grounds. Written by Charles Joseph, barrister at Tanfield Chambers. See News Analysis: Joint venture—termination of contract (Donovan v Grainmarket Asset Management).

In Olympic Council of Asia v Novans Jets, the court provided a helpful summary of the current state of the law of unjust enrichment. Written by Christopher Humby, of counsel at Quinn Emanuel Urquhart & Sullivan LLP. See News Analysis: Commercial Court refuses summary judgment application in unjust enrichment claim (Olympic Council of Asia v Novans Jets).

MLex: When Supreme Court judges had the last word in the UK’s widely watched business-interruption insurance test case in January, ruling largely in favour of pandemic-hit policyholders, they left one big question up to the litigants: what exactly does ‘loss’ mean? That was no mistake; each contract is different, and judges were never going to rule on how much a business should be owed for losses suffered as a result of the coronavirus (COVID-19) pandemic, nor even how to go about calculating an amount. See News Analysis: Comment—UK insurers incite new dispute over calculations of businesses’ coronavirus (COVID-19) losses


 

International

The Cabinet Office has published new guidance for importing and exporting goods. Subjects covered in this guidance include importing goods into the UK and new border requirements for moving goods to and from the EU. HMRC has also published updated guidance on how to move goods through ports. See: LNB News 13/05/2021 23.

The Cabinet Office has also published a series of webinars offering guidance for those involved in trade with EU countries. See: LNB News 17/05/2021 113.

HM Revenue & Customs (HMRC) has published updated guidance for stakeholders. Subjects covered in this guidance include updated information on what you will need to get a goods movement reference, particularly the need for a declaration unique consignment reference for goods moving directly from Northern Ireland (NI) to Great Britain, where the goods are under a customs special procedure in NI, in an authorised temporary storage facility, or on a list of goods that specific processes apply for based on specific international obligations. See: LNB News 17/05/2021 40.

HMRC has also updated its import, export and customs guidance to reflect the post Brexit regime. The update covers the period from 11 May 2021 to 17 May 2021. See: LNB News 17/05/2021 97.


 

Supply of goods and services

The Environment, Food and Rural Affairs (EFRA) Committee is concerned that Britain’s food supply chain, under the government’s new immigration policy, may not be able to secure enough labour for Summer 2021. Concerns about time frame to recruit labour overseas and shortages of skilled workers have been expressed by the Committee. See: LNB News 17/05/2021 114.


 

Information Law & TMT

 

Data protection

MLex: Facebook has failed at an Irish court to stop the Irish Data Protection Commission (Irish DPC) from investigating whether its trans-Atlantic data transfers are in line with EU law following a ruling by the EU's top court in July 2020. The High Court in Dublin ruled that the Irish DPC had the right to open an 'own volition' investigation into whether Facebook's Irish subsidiary was in breach of EU data protection rules by transferring personal data to the US. See News Analysis: Facebook loses bid to halt Irish probe into EU-US data flows after Schrems II ruling.

The DCMS has published its response to the consultation it ran on the UK National Data Strategy (NDS) from 9 September 2020 to 9 December 2020. Of more than 250 responses received, the government records that respondents ‘generally welcomed’ its approach to data as a strategic asset to be used for social and economic benefit, considering data to be not just a threat to be managed, but an opportunity to be embraced. In response the government has announced that it will share frequent and focused updates regarding the NDS, launch the National Data Strategy Forum, make efforts to build trust in the government’s own use of data, and maintain momentum across other priority areas by appointing a new Information Commissioner and a new Board and Chair for the Centre for Data Ethics and Innovation. See: LNB News 18/05/2021 12.

The Information Commissioner’s Office (ICO) has published the UK Information Commissioner Elizabeth Denham’s keynote speech at the Data and the Future of Financial Services 2021 conference. In consideration of how ‘good data protection is an investment’ that can be used to maximise the value of data, Denham discusses data protection and trust, data protection and data security, data protection and data flows, and the ICO’s role. See: LNB News 13/05/2021 19.


 

Internet

Over two years since the government first laid out its plans to introduce a new regulatory framework for ‘online harms’, the Online Safety Bill was published on 12 May 2021. The draft Bill imposes duties of care on providers of digital services to make them responsible for illegal and harmful content generated and shared by their users as well as duties to protect users’ rights to freedom of expression and privacy. Charles Brasted, partner, and Telha Arshad, senior associate, at Hogan Lovells discuss the Bill’s impacts. See News Analysis: UK publishes Online Safety Bill—a new era in digital regulation.


 

New technologies

The Internet of Things (IoT) (ie connected ‘smart’ devices) is not new. But the number of innovative and sometimes unexpected use cases we see IoT being applied to each year is astonishing, and never more so than now, with it being used to help manage the coronavirus (COVID-19) crisis and improve healthcare. Kate Armstrong, senior associate at Taylor Wessing, discusses the impact of the pandemic on the regulation of IoT. See News Analysis: Surge in IoT during the coronavirus (COVID-19) pandemic helps pave the way for new IoT laws.


 

Advertising, marketing and sponsorship

The Gambling Commission has warned businesses that they will face regulatory action if they fail to carefully manage their third-party websites. This follows regulatory action being brought against FSB Technology (UK) after it was found that the gambling company did not have sufficient oversight over three of its third-party websites or effective anti-money laundering and social responsibility policies and procedures in place between January 2017 and August 2019. FSB Technology (UK) was ordered to pay £600,000 towards the National Strategy to Reduce Gambling Harms, and will have additional conditions placed on its gambling licence in an effort to ensure that the company ‘conducts risk-based due diligence on new and current third party partners it runs websites on behalf of’. See: LNB News 18/05/2021 83.


 

Corporate

 

Accounts and reports

The Financial Reporting Council (FRC) has published a thematic review ahead of the 2021 interim reporting season, highlighting exemplary good practices in a company’s interim reporting as well as areas which require more improvements. The FRC also highlights that companies should give better explanations on balance sheet movements. See: LNB News 18/05/2021 44.


 

Corporate manslaughter

Corporate Crime analysis: In R v Wood Treatment Ltd and another [2021] EWCA Crim 618, the Court of Appeal upheld Mrs Justice May’s grant of the defendants’ submissions of no case to answer, resulting in the jury being directed to return not guilty verdicts on eight counts of corporate manslaughter and gross negligence manslaughter against an employer and its managing director. Four employees lost their lives in the explosion of a wood dust mill in 2015. The court found that May J was right to hold that, after the evidence of the Crown’s expert witness, there was a realistic possibility which could not be excluded that the cause of the explosion was consistent with innocence. The jury could not therefore safely return guilty verdicts. Written by Harry Vann, barrister at Crown Office Chambers. See News Analysis: Causation in corporate and gross negligence manslaughter (R v Wood Treatment).


 

 

Coronavirus

Large employers spanning the UK, including Santander, Asda and IKEA, have pledged to encourage and facilitate staff receiving the coronavirus vaccine. They are doing so by disseminating positive messages about the vaccines and allowing workers flexibility in their hours so that they can go to receive their shot. The Department of Health and Social Care has urged more business to do the same. See: LNB News 14/05/2021 89.

The Advisory, Conciliation and Arbitration Service (Acas) has published its five top tips for businesses reopening from 17 May 2021 as coronavirus restrictions ease. Acas recommends that businesses ensure their workplace is coronavirus-secure, plan ahead with staffing, discuss working arrangements with staff, consider the health and wellbeing of staff, and consider employment rights. See: LNB News 14/05/2021 108.

On 17 May 2021, England entered Step 3 of the government’s roadmap for the lifting of restrictions following the third national lockdown. Hannah Ford, Partner, and Sarah Taylor, PSL, of Stevens & Bolton set out below the key changes and what employers should be doing in this next stage in the easing of restrictions. See News Analysis: Step into step 3: Employer’s guide to the next stage of the government’s roadmap.


 

Diversity and gender pay gap

In the fifth in a series of articles exploring how diversity and inclusion can play a part in shaping the ‘new normal’ as businesses move out of lockdown as an opportunity to ‘build back better’, Tracey Marsden, Partner, at CMS (Sheffield) and Catriona Aldridge, Senior Associate, at CMS (Edinburgh), consider how the coronavirus crisis threatens the progress that has been made in reducing the gender pay gap and explore the opportunities the pandemic presents for employers to change the gender pay gap for the better. See News Analysis: The gender pay gap in a COVID-19 world—Are we falling back on old habits?

In the sixth in the series, Gary Henderson, Partner, at CMS (Reading) explores both the negative and positive aspects the pandemic has had on employees with disabilities. In particular, he highlights the legal obligations and the steps employers can take now and in the longer term to support employees with disabilities. See News Analysis: Hold onto the good and keep addressing the bad—the impact of the pandemic on employees with disabilities.

The government has responded to the Women and Equalities Committee’s fifth report of session 2019–2021, ‘Unequal impact? Coronavirus and the gendered economic impact’. The government welcomes the report and acknowledges that coronavirus is the greatest challenge the UK has encountered in decades. The government has welcomed some of the recommendations, including amending flexible working regulations, and is considering others. See: LNB News 14/05/2021 26.


 

Status and worker categories

When considering whether an individual has the status of a ‘worker’ for the purpose of various statutory rights, eg to holiday pay, there is no need for there to be an irreducible minimum of obligation on both parties, ie for there to be an obligation on a putative worker to accept and perform a minimum amount of work and an obligation on the putative employer to offer some work and/or pay for the same, according to the EAT. See News Analysis: Worker status does not require minimum obligation on both parties (Nursing and Midwifery Council v Somerville).

The Education and Skills Funding Agency (ESFA) has published guidance for providers, employers and learners who are affected by the termination of provider agreements for apprenticeships, funding agreements and contracts between the ESFA and providers. See: LNB News 17/05/2021 47.

HMRC has updated its guidance for employers detailing who needs to pay the apprenticeship levy, how to work out what is owed and how to use the levy allowance. See: LNB News 18/05/2021 5.


 

UK/EU divergence—have your say

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About the author:
Allison is a former partner of Shoosmiths, with extensive experience of legal management and practice compliance.