Regulatory Tracker: Stay ahead of the key legal and regulatory changes impacting your organisation – part 2

Regulatory Tracker: Stay ahead of the key legal and regulatory changes impacting your organisation – part 2

This Practice Note 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 8 November 2021. Topics covered in this blog include:

  • Data & privacy
  • Employment & HR
  • Responsible business

To find out more on Business crime, Commercial, Corporate governance click here.

Data & privacy:

Processing of employee data

The ICO is looking to update its employment practices guidance, in particular to address new ways of working. A call for views on employment practices was published on 12 August 2021. Read more…

Use of browser-generated information without consent

In Lloyd v Google LLC [2019] EWCA Civ 1599, [2020] QB 747,  the Court of Appeal held that in principle damages were capable of being awarded for loss of control of data pursuant to UK data protection law, without the claimant being able to prove pecuniary loss or even specific distress (the distress in theory being established by the fact of a loss of control of personal data (even where unknown at the time of the loss)).

Thus, in principle, the loss of control of the data was held to be sufficient to ground a claim for non-pecuniary damages. Read more…

UK data protection and ePrivacy regime

On 10 September 2021, the Department for Digital, Culture, Media & Sport (DCMS) published a consultation on its future plans for the UK data protection regime. Read more…

EU Standard contractual clauses (SCCs or model clauses)

On 4 June 2021, the European Commission adopted new SCCs for international transfers. Read more…

UK international data transfer agreement (IDTA)

The ICO is consulting on a draft IDTA, which is designed to replace SCCs for the purposes of the UK GDPR. Read more…

Surveillance camera code of practice

The Surveillance Camera Commissioner has proposed draft changes to its surveillance camera code of practice. This will be the first revision of the code since it was introduced in 2013. Read more…

Anonymisation, pseudonymisation and privacy enhancing technologies

The ICO is working on a project to develop further guidance on anonymisation, pseudonymisation and privacy enhancing technologies and has launched a consultation on the first draft chapter of its new guidance. Read more…

Direct marketing code of practice

On 8 January 2020, the ICO published a Consultation on the draft direct marketing code of practice. Read more…

Employment & HR:

Individual rights arising from trade union membership

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

Whether an employer's attempt to bypass a recognised trade union by negotiating directly with individual workers 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. The Court of Appeal allowed the employer’s appeal and held that it did not amount to unlawful inducement and dismissed the claims.

The Supreme Court allowed the workers’ appeal. Read more…

Prerequisite for ‘worker’ status under the Equality Act 2010

Nursing and Midwifery Council v Somerville, A2/2021/1185

Whether the EAT was correct to hold that the Court of Appeal’s decision in Windle v Secretary of State for Justice [2016] IRLR 628 does not mean that an irreducible minimum of obligation is a prerequisite for ‘worker’ status under the Equality Act 2010 nor by extension under the ERA 1996.

In this case, the EAT held that the absence of any obligation on a claimant to accept and perform some minimum amount of work was not fatal to establishing ‘worker’ status under s 230(3)(b) of the ERA 1996 in circumstances where he had an overarching contract with the employer. Read more…

Vicarious liability

Chell v Tarmac Cement and Lime, B3/2020/2079

Whether an employer was vicariously liable for the consequences of an employee's practical joke in the workplace. The High Court held that in the circumstances the employer was not vicariously or directly liable. Read more…

Agency workers

Kocur v Angard Staffing Solutions, A2/2021/0413

Various issues on aspects of agency workers’ rights under the AWR 2010 including the scope of the right under reg 13(1) to be informed of any relevant vacant posts. Read more…

Ownership of copyright in software created by employee

Penhallurick v MD5 Ltd, A3/2021/0936

Whether the High Court was correct to hold (see [2021] EWHC 293 (IPEC)) that the employer was the owner of copyright in software created by an employee, despite being created predominantly at home outside of working hours and the employee having identified himself as the author. Read more…

Age discrimination

Pitcher v Oxford University (con-joined with Ewart v Oxford University),  UKEAT/0083/20 (conjoined with UKEAT/0032/20)

Both cases challenge the University's retirement policy of 67. In both cases, the ET held the policy did have legitimate aims. In Pitcher the ET agreed with the University that it was a proportionate means of achieving those aims, but in Ewart the ET rejected the University's arguments to find it was not proportionate. The EAT dismissed both appeals. Read more…

Working time

Harpur Trust v Brazel, UKSC 2019/0209

Calculation of holiday pay for part-time term-time workers. The EAT held it was wrong to apply a cap of 12.07% of annualised hours, the employer must use the average over the preceding 12 weeks under WTR 1998, SI 1998/1833, reg 16

The Court of Appeal agreed with the EAT and dismissed the employer’s appeal. Read more…

Working time

BX v Unitatea administrativ-teritorială D, C-909/19

Whether time spent on compulsory vocational training at premises away from the workplace without performing any services for the employer, counts as working time.

The CJEU held that Article 2(1) of the Working Time Directive must be interpreted that it does count, see judgment here. Read more…

Criminal records checks

The Police, Crime, Sentencing and Courts Bill was introduced in the House of Commons on 12 May 2021. It includes provisions about the rehabilitation of offenders, following proposals to reduce the time it takes for certain convictions to become ‘spent’ so that they are no longer automatically disclosed on employment checks.

These changes will not apply to convictions relating to serious sexual, violent or terrorist offences for which the sentence was four years or more. Read more…

Professional Qualifications Bill

This Bill was announced in the Queen’s Speech on 11 May 2021. It will create a new framework for recognising qualifications from overseas. Read more…

Employment Bill

This was announced by the government in the Queen’s Speech on 19 December 2019. The main elements of the Bill are: creating a new, single enforcement body, ensuring tips left for workers go to them in full (see below), introducing a new right for all workers to request a more predictable contract, extending redundancy protections to prevent pregnancy and maternity discrimination, allowing parents to take ex-tended leave for neonatal care, introducing an entitlement to one week’s leave for unpaid carers and, subject to consultation, make flexible working the default unless employers have a good reason not to.

It was not mentioned in the Queen’s Speech on 11 May 2021 but it is understood that the government intends to introduce it in due course. Read more…

Non-Disclosure Agreements (NDAs)

Following political interest in the alleged misuse of NDAs to prevent reporting of harassment and criminal conduct, BEIS 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…

Flexible working

BEIS is consulting on proposals to reform flexible working regulations. Its Making flexible working the default consultation was published 23 September 2021.

Exclusivity clauses and non-compete clauses

BEIS launched two consultations in December 2020 with a view to introduce new measures to:

Read more…

Whistleblowing

The EU Whistleblowing Directive (EU) 2019/1937 entered into force in December 2019. Member States must implement the Directive by 17 December 2021. Read more…

Whistleblowing

Liberal Democrat peer, Baroness Kramer has introduced a new Private Members’ Bill to make provision for an Office of the Whistleblower. The Bill had its second reading on 25 June 2021 and was committed to a Committee of the Whole House. Read more…

Responsible business:

Independent review of the Modern Slavery Act 2015 (MSA 2015)

The government has been engaged in a review of MSA 2015 since 2018. It has announced a number of changes will be made to MSA 2015 and government guidance. Read more…

Modern Slavery (Amendment) Bill

This Private Members’ Bill would prohibit the falsification of slavery and human trafficking statements, establish minimum standards of transparency in supply chains in relation to modern slavery and hu-man trafficking, and prohibit companies using supply chains which fail to demonstrate those minimum standards.

It had its first reading on 15 June 2021. Read more…

Supply chain due diligence – forest risk commodities

In August 2020, the government launched a consultation on proposals to introduce new legislation designed to prevent forests and other important natural areas from being illegally converted into agricultural land. It proposes to make it illegal for larger businesses to use so-called ‘forest risk commodities’ that have not been produced in accordance with relevant local laws, and would require larger businesses to undertake due diligence to show that they have taken proportionate action to ensure this is the case. Read more…

Human Rights, Environmental and Good Governance Due Diligence

On 10 March 2021, the European Parliament approved an outline proposal for the EU Directive on Mandatory Human Rights, Environmental and Good Governance Due Diligence. If adopted, the proposals would require companies within scope to conduct environ-mental and human rights due diligence along their full value chain or face concrete fines, sanctions and/or civil liability. Read more…

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