In-house lawyer tracker for 2021

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 18 April 2021.

The ongoing coronavirus (COVID-19) pandemic and the speed at which the situation continues to move 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 are monitoring the impact of the coronavirus closely and reporting 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 and is currently set to run with full government support until 30 June 2021 and then requiring employer contributions from 1 July 2021 until 30 September 2021.
For further information on the extended CJRS, see Practice Note:  Coronavirus Job Retention Scheme (extended version 1 November 2020 to 30 April 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).
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 November 2020 to 30 April 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

The government announced its intention to introduce a new Employment Bill to enhance employee rights as the UK leaves the EU. The main elements of the Bill are:
—creating a new, single enforcement body
—ensuring tips left for workers go to them in full
—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 extended 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
See:  LNB News 19/12/2019 23.
Three private members’ bills potentially affecting employment rights had been scheduled to progress faster through the Parliamentary timetable than many bills currently before Parliament:
—the Employment (Dismissal and Re-employment) (No. 2) Bill is intended to prevent dismissal and re-employment to avoid accrued employment rights
—the Employment (Reasonable Adjustment for Carers) Bill is intended to ensure employers offer reasonable adjustments to employees with caring responsibilities
—the Equal Pay (Information and Claims) Bill was introduced on 20 October 2020 and is intended, among other things, to give employees the right to access pay information of comparators and to reform equal pay claims and remedies
These bills are in the early stages and have now been delayed despite initial early scheduling for a second reading.
See:  Legislation tracker—Employment—Private Members’ Bills.

Employment Bill announced in the Queen’s Speech in December 2019. Draft Bill not yet published.
A proposed review of employment protection post-Brexit was scrapped on 29 January 2021 with the government stating its intention was to ensure employee rights and not water them down.
The Employment (Dismissal and Re-employment) (No. 2) Bill was introduced on 4 November 2020 to replace an earlier draft. This was due for its second reading on 5 February 2021 but has now been delayed with no new date set.
The Employment (Reasonable Adjustments for carers) Bill was due for a delayed second reading on 29 January 2021 but has now been delayed with no new date set.
The Equal Pay (Information and Claims) Bill, introduced on 20 October 2020 was due for its second reading on 22 January 2021 but has now been delayed with no new date set.

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.

Live-in workers’ entitlement to national minimum wage

Shannon v Rampersad t/a Clifton House Residential Home (joined with  Royal Mencap Society v Tomlinson-Blake in Court of Appeal)  [2018] All ER (D) 50 (Aug) concerns the question as to whether home workers required to remain at home for their shift and workers who sleep in are entitled to payment at national minimum wage for time not spent performing some specific activity.
The Court of Appeal held that only time spent working had to be taken into account, overturning the High Court at first instance. Appealed to the Supreme Court. On 19 March 2021 the appeal was unanimously dismissed.
This case could have wider implications for sectors requiring employees to be physically present at a specific location as part of their employment.
See News Analysis:  Supreme Court confirms national minimum wage position for sleep-in workers (Royal Mencap Society v Tomlinson-Blake, Shannon v Rampersad).

Hearing 12–13 February 2020.
Supreme Court judgment 19 March 2021. Appeal dismissed.

Off payroll working in the private sector (IR35)

The IR35 rules are designed to ensure that individuals who provide services through an intermediary (usually a personal services company) but would have otherwise been an employee pay the same PAYE and NICs as direct employees.
Following concerns about widespread non-compliance, the rules have changed from 6 April 2021.
Government guidance describes the basic change as follows:
Before 6 April 2021, if your worker provides services to a client through you in the:
—public sector, the client must decide your employment status
—private sector, you must decide your worker’s status
From 6 April 2021, all public sector clients and medium or large-sized private sector clients will be responsible for deciding your worker’s employment status. This includes some charities and third sector organisations.
If the off-payroll working rules apply, your worker’s fees will be subject to Income Tax and National Insurance contributions.
HMRC has produced  guidance on preparing for the changes.
See:  IR35—history, developments and key difficultiesIR35—off-payroll workersLNB News 07/02/2020 83 and  LNB News 12/02/2020 8.

In force with effect from 6 April 2021. Amendments have been included in the Finance Bill to remediate an unintentional widening of conditions determining intermediaries and introduce a targeted anti avoidance measure—see News Analysis:  Finance Bill 2021—minor amendments to the off-payroll IR35 regime.

Equal pay

Asda Stores v Brierly  [2021] UKSC 10.
The Supreme Court considered the appropriate comparators in equal pay claims in which female claimants in retail stores sought to use male comparators working largely in distribution centres.
The Supreme Court dismissed Asda’s appeal and held that distribution workers’ terms and conditions could be used as a valid comparison for employees in the retail part of the business on established principles. In doing so, it provided definitive guidance on the proper operation of the statutory ‘common terms’ requirement applicable in equal pay claims where the comparator works at a different establishment to the claimant.
See News Analysis:  Equal pay: Supreme Court guidance on ‘common terms’ where comparator is at different establishment (Asda Stores v Brierley and others).

Supreme Court judgment 26 March 2021.

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 18–19 May 2021.

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.

Announcement 21 July 2019 following consultation issued in March.
Timetable to implementation has not been fixed.
Meanwhile, the Solicitors Regulation Authority updated its  warning notice on the use of NDAs on 12 November 2020.

Finance Bill

The Finance Bill makes amendments in relation to the taxation of termination payments to remove known inconsistencies.
See:  Legislation tracker—Employment and News Analysis:  Spring Budget 2021—Tax analysis of employment measures.

6 April 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 European Court of Justice delivered judgment in the ‘Schrems II’ case on 16 July 2020. This case concerns the lawfulness of data transfers outside of the EU based on standard contractual clauses (SCCs) and, in particular, affects mechanisms for transferring data to the US.
In its judgment the Court of Justice invalidated the EU-US Privacy Shield.
The court also took the view that parties using SCCs must verify, on a case-by-case basis, whether the law in the recipient country provides a level of protection that is essentially equivalent to that provided under the GDPR. If not, it may be necessary to supplement the SCCs with other clauses or additional safeguards.
See Practice Note:  International data transfers—practical compliance—Is the transfer covered by appropriate safeguards?
Following the end of the Brexit implementation period, transfers  from the UK to other countries, including to the EEA, are subject to the UK GDPR. Transfers  from the UK to the (i) EEA, (ii) Gibraltar and (iii) third countries that have the benefit of an EU Commission adequacy decision can continue as normal. If this is not an option, the UK GDPR permits transfers to be made on the basis of SCCs.
Transfers  to the UK from the EEA are subject to the EU GDPR. See Practice Note:  International data transfers—practical compliance—Transfers from EEA countries. In an ideal world, such transfers would be based on an adequacy decision granted by the EU Commission in favour of the UK. The UK government is seeking such an adequacy decision, but this has not yet been granted. Early indications are positive with some notes of caution regarding direction of travel.
The EU Commission published a draft adequacy decision on 19 February 2021—see:  LNB News 19/02/2021 66. The EDPB issued its opinion on the draft adequacy decision on 13 April 2021—see News Analysis:  EDPB’s opinion on the draft adequacy decision for the UK under the EU GDPR.
In the meantime, the EU-UK Trade and Cooperation Agreement (TCA) provides for the continued free flow of personal data from the EEA to the UK for a period of four months, extendable to six months.
For more information on the impact of Brexit and the Schrems decision on international transfers of data, see Practice Notes:  What does IP completion day mean for Risk & Compliance? and  International data transfers—practical compliance.

European Court of Justice judgment 16 July 2020.
Draft adequacy decision published on 19 February 2021. EDPB opinion 13 April 2021, completing stage two of a four stage process.

Whether loss of control of personal data amounts to damage

Lloyd v Google LLC  [2019] EWCA Civ 1599
The Supreme Court has given permission to 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

Category Details Expected or actual date

Pension Schemes Act 2021

The  Pension Schemes Act 2021 creates new criminal offences relating to pension schemes and creates added reporting duties for pension scheme administrators and employers. The Bill introduces stricter rules about the transfer of pensions and enhances powers of the Pensions Regulator to impose fines of up to £1m. The new measures are intended to deter employers from acting recklessly with regard to pension monies.
See:  Legislation tracker—pensions.

Royal Assent 11 February 2021.
Commencement on a date to be specified.

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 provisionally listed for 4–5 May 2021 following adjournment.

Climate-related disclosures

The Department for Business, Energy & Industrial Strategy (BEIS) is 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 is open until 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. Some of the remedies proposed may apply to the wider insurance market. The consultation covers other proposed new measures designed to promote competition and ensure fair pricing.
The CMA’s draft  annual plan for 2020/2021 confirms that the loyalty penalty remains a key plank of its consumer protection work. This is likely to be extended into issues such as auto renewal of contracts and the antivirus market.
The timetable to implementation is estimated at four months after the FCA response to the consultation, expected in Q2 2021.
See:  LNB News 22/09/2020 66.

FCA response to consultation due Q2 2021, with implementation expected four months after response.

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

SFO powers

In  R (on the application of KBR Inc) v Director of the SFO  [2021] UKSC 2, the Supreme Court considered the powers of the SFO to require a foreigner to produce material overseas. This is relevant to UK companies with parent companies located overseas.
The Supreme Court determined that the starting point is that UK law is not intended to have extra-territorial effect and allowed KBR’s appeal.
See:  LNB News 05/02/2021 104.

Hearing 13 October 2020. Judgment 5 February 2021. Appeal allowed.

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.

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.
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.

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

Category Details Expected or actual date

Brexit

The Brexit transition/implementation period ended at 11 pm on 31 December 2020, marking ‘IP completion day’—a significant moment for UK law.
An extensive TCA was published on 24 December 2021 which sets out the basis of the continuing relationship between the UK and EU.
Brexit has far reaching effects across all areas of law including consumer rights, employment, immigration, import and export and taxation. Professional qualifications will no longer qualify for automatic recognition absent express agreement. The REL regime has largely fallen away and RELs must find alternative means of lawful practice, including as RFLs or by requalification.
To track the progress of legislation introduced as part of the UK’s withdrawal from the EU, see our  Brexit legislation tracker.
For an overview of the TCA, see News Analysis:  Brexit Bulletin—examining the EU-UK Trade Cooperation Agreement.
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.

11pm on 31 December 2020 (IP completion day).

Trade Bill

Introduced on 21 July 2020, the Trade Bill 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:  Brexit legislation tracker—Trade Bill 2019–21

The text of the Trade Bill is now agreed and Royal Assent is 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.
See subtopic:  Risk & Compliance forecast.

The new register was expected to become operational in 2021, but no legislation is currently before Parliament.
Following the general election in December 2019, the draft Registration of Overseas Entities Bill has not yet been republished but it was included within the Queen’s Speech.
While there is no indication that the proposal is being abandoned, it is likely to have been delayed by the coronavirus pandemic.

Business interruption insurance

The FCA sought declarations as to the extent of business interruption insurance coverage in an effort to secure clarity amidst the coronavirus pandemic. It selected a range of policies as a test case and first instance judgment was handed down on 15 September 2020. The FCA announced on 29 September 2020 that it and seven insurers had filed precautionary leapfrog appeals. Supreme Court hearings took place 16–19 November 2020 and judgment was handed down on 15 January 2021, substantially allowing the FCA appeals.
The Financial Conduct Authority v Arch Insurance  [2021] UKSC 1[2021] All ER (D) 40 (Jan) and  The Financial Conduct Authority v Arch Insurance  [2020] EWHC 2448 (Comm).
The FCA has indicated that the judgment is binding on the eight insurers directly involved but should be treated as persuasive by all other insurers dealing with relevant claims and applied across the board. The FCA published guidance on this issue and continues to update its dedicated webpages.
See:  LNB News 15/01/2021 107 and News Analysis:  FCA test case—documentation for policyholders.

Supreme Court judgment 15 January 2021, substantially allowing the FCA appeals and rejecting insurer appeals.

Extent of duty of care

The Supreme Court has considered the extent to which a UK domiciled parent company of a multinational group owes a common law duty of care to individuals suffering harm as a result of systemic health, safety and environmental failings in its overseas subsidiaries.
The court found that there were factual issues to be tried and that, pursuant to the judgment in  Vedanta and VTB Capital plc v Nutritek International Corpn  [2013] 2 AC 337, there is no automatic presumption that a parent company could never incur a duty of care as a result of group wide policies or guidelines. The issue is the extent to which the parent company took over or shared management of the relevant activity.
See:  Okpabi v Royal Dutch Shell  [2021] UKSC 3 and News Analysis:  Establishing jurisdiction for claims in tort—when is a parent company liable for its subsidiary? (Okpabi v Royal Dutch Shell).

Hearing 23 June 2020. Judgment 12 February 2021.