Regulatory Tracker: Stay ahead of the key legal and regulatory changes impacting your organisation

Regulatory Tracker: Stay ahead of the key legal and regulatory changes impacting your organisation

This Practice Note, by Susanna Heley of RadcliffesLeBrasseur, highlights key legal and regulatory changes that affect or will affect in-house lawyers in 2021. While some are set in stone, others are more speculative at this stage or subject to the Parliamentary timetable. It was last updated on 3 July 2021. Topics covered include:

Coronavirus job retention scheme (CJRS) and job support scheme (JSS)

The CJRS has been extended several times. Between 1 May and 30 June 2021, employers were able to claim 80% of an employee’s usual salary for hours not worked, up to a maximum of £2,500 per month. From 1 July 2021, the CJRS grant reduces. Read more…

Employee protection legislation

Several new private members’ bills on employment rights have been reissued but remain at an early stage.

Separately, the government announced plans to create a single regulatory body to take on the employment regulation activities of the Gangmasters and Labour Abuse Authority, the Employment Agency Standards Inspectorate and HMRC in relation to modern slavery and minimum wage enforcement. Read more…

Burden of proof—discrimination

The Supreme Court will consider who bears the burden of proof in considering whether discrimination contrary to the Equality Act 2010 has occurred in an appeal from the Court of Appeal decision in Royal Mail Group Ltd (Respondent) v Efobi (Appellant) [2019] All ER (D) 129 (Jan), which held that the claimant carries the initial burden of proof. Read more…

NICS

The National Insurance Contributions Bill makes provision for NICS relief for employers in relation to freeport employees, the employment of veterans and the treatment of self isolation payments. Read more…

Individual rights arising from trade union membership

Kostal UK v Dunkley A2/2018/0108, [2019] EWCA Civ 1009, UKSC 2019/0153

Case about whether an employer’s attempt to bypass a recognised trade union by negotiating directly with individual employees regarding changes to terms and conditions amounted to unlawful inducement contrary to section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992.

The EAT held that the ET had not erred in finding that it did—see report of 15 December 2017. The Court of Appeal allowed the employer’s appeal, held that it did not amount to unlawful inducement and dismissed the claim—see report of 14 June 2019.

The Court of Appeal handed down judgment on 13 June 2019. Appealed to Supreme Court. Read more…

Non-disclosure agreements (NDAs)

Following political interest in the alleged misuse of non-disclosure agreements to prevent reporting of harassment and criminal conduct, DBEIS announced its intention to:

  • introduce legislation to regulate use of NDAs, and
  • consult on a potential requirement that all employers should be entitled to a basic reference

The Women and Equality Select Committee urged the government to treat this issue as a priority on 29 October 2019. Read more…

Data protection

The ICO has launched a data analytics toolkit for businesses using data analytics on customer data.

The ICO is now working on a project to develop further guidance on anonymisation and pseudonymisation and invites engagement prior to the issue of formal consultations to enable lawful data sharing.

The ICO has also reminded businesses that the Children’s Code comes into force in September 2021 applying to all major online services accessed by children. Read more…

International data transfers

The EU Commission adopted an adequacy decision in relation to the UK on 28 June 2021, meaning EEA countries can transfer personal data to the UK without additional measures such as standard contractual clauses. Read more…

Whether loss of control of personal data amounts to damage

The Supreme Court has heard the appeal in the Lloyd v Google LLC [2019] EWCA Civ 1599 case in which Mr Lloyd is seeking to bring a representative action against Google for placing cookies on users’ devices without the users’ consent. Read more…

Dividends

The Supreme Court will consider whether payment of a lawful dividend may amount to a transaction defrauding creditors contrary to section 423 of the Insolvency Act 1986 (IA 1986).

In BTI 2014 LLC v Sequana SA [2019] EWCA Civ 112, the Court of Appeal clarified when remedial relief under IA 1986, s 423 may be granted and when directors’ duties to have regard to the interests of creditors (the creditors’ interests duty) may apply. Read more…

Climate-related disclosures

The Department for Business, Energy & Industrial Strategy (BEIS) has been consulting on proposals to make it mandatory for public quoted companies, large private companies and LLPs to make climate-related disclosures in line with the Financial Stability Board’s Task Force for Climate-related Financial Disclosures (TCFD) framework. Read more…

Loyalty penalty

The FCA published its final report on general insurance pricing practices in September 2020 and consulted on ‘radical’ proposed reform of the home and motor insurance market to address the issue of loyalty penalties.

Following the consultation, new rules come into force on 1 October 2021 and 1 January 2022 to bring to an end the practices which led to loyalty penalties arising. Read more…

Economic duress

The Supreme Court will consider the ingredients of economic duress in the case of Pakistan Airline Corporation Limited (Respondent) v Times Travel (UK) Ltd (Appellant) (2019/0142). The case concerns whether or not a contractual waiver of pre-existing claims was avoidable as a result of economic duress. The contract was avoided at first instance but that decision was overturned on appeal. Read more…

Solicitors’ liens

The Supreme Court will assess the limits to the principle under which a solicitor can ask the court to grant an equitable lien to protect his entitlement to unpaid fees. This is relevant to companies seeking to obtain material from solicitors where fees are unpaid or in dispute and to companies offering legal services. Read more…

Powers of the Court to regulate solicitors’ firms, enforcement of solicitors’ undertakings

In Harcus Sinclair LLP (Respondent) v Your Lawyers Ltd (Appellant) UKSC 2019/0098, the Supreme Court will consider whether the court has inherent jurisdiction to regulate the entity through which a solicitor practices and whether enforcement of solicitors’ undertakings should be subject to public policy considerations in relation to restraint of trade. Read more…

Digital markets

The CMA has established a Digital Markets Unit pending consultation on legislation to introduce new regulation of the most powerful digital firms with a view to enhancing competition and consumer protection.

The government has also published a draft Online Safety Bill as part of its campaign to increase regulation of digital markets. Read more…

Brexit and beyond

The legislative fallout from Brexit continues with the publication of the Professional Qualifications Bill intended to move away from the remnants of the EU regime for recognition of professional qualifications. Read more…

Our Brexit toolkit brings together relevant content on the various legal requirements and implications of Brexit and includes links to Practice Notes, Checklists and Q&As as well as News Analysis and Legal Updates across a range of legal topics.

Trade Act 2021

The Trade Act 2021 provides the framework for the UK’s approach to international trade post Brexit. It provides for the establishment of the Trade Remedies Authority to protect UK business from unfair trade practices and addresses obligations under the Government Procurement Agreement. Read more…

Taxation

In Tinkler v HMRC UKSC 2019/0183 the Supreme Court considered whether a company was estopped from arguing that no valid enquiry had been opened where notices had been sent to the wrong address but the company’s accountants had nevertheless engaged on the basis that an enquiry had been opened. Read more…

Overseas property register

The draft Registration of Overseas Entities Bill was considered by a select committee in May 2019. The select committee reported and generally endorsed the proposal with some recommended improvements to minimise possible avoidance.

The government responded in July 2019. It stated that the types of overseas entity that will be exempt will be set out in secondary legislation, which will also set out any evidence that might be required to be presented to the land registries to demonstrate that an overseas entity is or was exempt (eg a conveyancer’s certificate). It confirmed it intends to publish, and consult on, draft regulations to ensure that the proposals are workable and will have no unintended consequences. Read more…

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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.