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.

The ongoing coronavirus (COVID-19) pandemic will have a lasting impact on all areas of law, regulation and policy development. Inevitably some of the anticipated developments in this tracker will be affected and new issues may arise, particularly regarding the availability and extent of business support. We continue to monitor the impact of the coronavirus closely and report changes via our news updating service. To help you find and access relevant news, practical guidance and Q&As from across Lexis®PSL Practice Areas all in one place (subject to subscription), Lexis®PSL has also produced a coronavirus (COVID-19) toolkit. In addition to coronavirus-specific content, the toolkit also highlights additional guidance and support materials of general relevance. See: Coronavirus (COVID-19) toolkit.

Category Details Expected or actual date

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

The government introduced the CJRS in March 2020. Employees whose jobs would have been redundant due to lockdown may instead be furloughed and paid through the CJRS. A revised version of the CJRS was in place between 1 July and 31 October.

On 24 September 2020, the Chancellor announced a replacement JSS which was intended to come into effect from 1 November 2020.

The CJRS has since 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.

For further information on the extended CJRS, see Practice Note:  Coronavirus Job Retention Scheme (extended version 1 May to 30 September 2021).

For information on the original CJRS, in place from 1 March 2020 to 30 June 2020, see Practice Note:  Coronavirus Job Retention Scheme (original version to 30 June 2020).

For information on the revised CJRS, in place between 1 July 2020 and 31 October 2020, see Practice Note:  Coronavirus Job Retention Scheme (revised version 1 July to 31 October 2020).

For information on the extended CJRS in place between 1 November 2020 and 30 April 2021, see Practice Note:  Coronavirus Job Retention Scheme (extended version 1 November 2020 to 30 April 2021).

Note: Penalties related to abuse of the CJRS are included in   Finance Act 2020.   There is a rolling 90-day period for notification of overclaims to avoid imposition of penalties—see Practice Note:   Coronavirus Job Retention Scheme (extended version 1 May to 30 September 2021) — HMRC enforcement and tax treatment.

The extended CJRS is due to be in place until 30 September 2021.

The JSS was due to come into effect when the CJRS ends, but is currently on hold. It is unclear whether it will come into force as currently structured.

Employee protection legislation

No employment legislation was carried over into the new parliamentary session from May 2021. 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.

See: Legislation tracker—Employment—Private Members’ Bills and LNB News 09/06/2021 58.

Several private members’ bills addressing issues such as whistleblowing, employment rights, dismissal and re-engagement and carers leave are at early stages.

Primary legislation for the new regulatory body will be issued when Parliamentary time permits.

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.
See:  Case tracker—Employment.

Hearing 27 April 2021. Judgment awaited.

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.

See: Legislation tracker—Employment.

The Bill is currently at report stage.

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.

Relevant to employers who recognise trade unions.

See: Case tracker—Employment.

Supreme Court hearing 18 May 2021. Judgment awaited.

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.

See DBEIS: Crack down on misuse of NDAs in the workplace. A Private Members’ Bill has been laid before Parliament but is at a very early stage. See: Legislation tracker—Employment—Private Members’ Bills.

Second reading of the Non-Disclosure Agreements Bill December 2021.

Category Details Expected or actual date

Data protection

The Information Commissioner’s Office (ICO) published a new data sharing Code of Practice on 17 December 2020. This sits alongside a suite of data sharing resources, including FAQs and guidance for small organisations and businesses on data sharing.

Further, more general, data protection guidance is expected following two recent consultations on statutory guidance (closed November 2020) and the role of ethics in GDPR compliance (closed January 2021).

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.

Ongoing programme of guidance.

Data Analytics toolkit launched 17 February 2021

Children’s Code coming into force September 2021

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.

28 June 2021.

Whether loss of control of personal data amounts to damage

Lloyd v Google LLC  [2019] EWCA Civ 1599
The Supreme Court has heard the appeal in the  Lloyd v Google LLC case in which Mr Lloyd is seeking to bring a representative action against Google for placing cookies on users’ devices without the users’ consent.
The issue on appeal centres on whether Mr Lloyd should be given permission to serve out of the jurisdiction on Google LLC. To obtain permission, Mr Lloyd needs to show an arguable case and demonstrate that loss of control of personal data may constitute ‘damage’ for that purpose.

Hearing 28–29 April 2021.
Judgment awaited.

Category Details Expected or actual date

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.

See News Analysis:  Challenging lawful dividend payment as a transaction defrauding creditors and for breach of directors’ duties (BTI 2014 LLC v Sequana SA and others; BAT Industries plc v Sequana SA).

Hearing 4–5 May 2021. Judgment awaited.

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.

See News Analysis:  Proposals to require mandatory climate-related disclosures by quoted companies, large private companies and LLPs.

The BEIS consultation is separate to a new rule and guidance issued by the FCA on statements to be included in annual financial reports of UK premium listed commercial companies. The FCA requirements apply to accounting periods from 1 January 2021 and will affect financial reports filed from Spring 2022.

The BEIS consultation closed on 5 May 2021.

FCA requirements apply to accounting periods beginning on or after 1 January 2021.

Category Details Expected or actual date

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.

See: LNB News 28/05/2021 82.

The rules relating to pricing, automatic renewal and data reporting remedies come into effect on 1 January 2022.

Additional rules on systems and controls, product governance and premium finance come into effect on 1 October 2021.

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.

See News Analysis:  Commercial contract not avoided on economic duress grounds where duress was lawful (Times Travel (UK) LTD v Pakistan International Airlines Corporation).

Hearing 2 November 2020.
Judgment awaited.

Category Details Expected or actual date

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.

See:  Bott & Co v Ryanair DAC  UKSC 2019/0054 and News Analysis:  Court of Appeal: solicitors have no equitable interest in compensation which is paid in cases where there is no dispute (Bott & Co v Ryanair DAC).

Hearing 20 May 2021.
Judgment awaited.

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

In  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.

See further News Analysis:  NDA non-compete clause held unenforceable restraint of trade (Harcus Sinclair LLP and another v Your Lawyers Ltd and another).

Hearing 24–25 March 2021.
Judgment awaited.

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.

See:  LNB News 07/04/2021 20.

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

See News Analysis: UK publishes Online Safety Bill—a new era in digital regulation.

DMU announced 7 April 2021. Consultation on new regime promised in 2021.

Draft Online Safety Bill published 12 May 2021.

Category Details Expected or actual date

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.

See:   Legislation tracker—Employment. 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.

Professional Qualifications Bill passed committee stage on 22 June 2021. Report stage is yet to be scheduled.

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.

See:  LNB News 04/05/2021 6 and Brexit legislation tracker—Trade Act 2021

Royal Assent 29 April 2021.

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.

Hearing 12 May 2021.
Judgment awaited.

Overseas property register

Proposed register of ownership and control of foreign companies that purchase property in the UK.
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.

This moves the UK one step closer to a ‘world-first’ public register of overseas entities owning UK property and is relevant to overseas businesses that purchase property in the UK.

The new register was expected to become operational in 2021, but no legislation is currently before Parliament and no new information is available on whether the register will be introduced at this time.