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In association with Iain Larkins from , we bring you updates across Data Security, Advertising & Marketing, Employment, Consumer and Competition law.

We focus on the commercial aspects and look at the practical steps for you to consider.

This month, we cover the following...

Data security

Subject access requests

A recent High Court case¹ has provided some useful guidance on the obligations of a Data Controller when it receives a subject access request. See News Analysis:

• The Data Controller must provide the identity of the source of the personal data that it holds, but if the data is provided by a company – then it’s only likely to need to identify the company rather than the individual who provided the data.
• Only a description of the recipients of the personal data needs to be disclosed, not their names.
• The regulatory exemption is only likely to apply to regulators themselves and only to the extent that providing personal data could prejudice the regulator's ability to carry out its regulatory functions appropriately.
  

Advertising & Marketing

Fight against counterfeits

Amazon has launched Project Zero in the U.S. to assist some Brands (by invitation) in their fight against counterfeit products. This includes:

• increased search functionality to identify counterfeit products;
• the right for the brand itself to remove other listings rather than waiting for Amazon to do the work; and
• serialisation – which allows brands to assign a secure code to every product that they manufacture and enable Amazon to remove counterfeit products before dispatch. 

Whilst Project Zero is only currently available in the U.S, Amazon’s less sophisticated system is available in the UK.

See Practice Note:

Employment

Shared parental leave pay

The Court of Appeal in the combined cases of Ali v Capita Customer Management and Chief Constable of Leicestershire Police v Hextall² have decided that employers paying enhanced contractual maternity pay but only statutory pay for shared parental leave are not discriminating and are not in breach of equal pay law.

This is because the Equality Act specifically allows for special treatment to be afforded to women in connection with pregnancy or childbirth, without the same rights being afforded to men.

It’s worth noting that the enhanced maternity pay in these cases did not exceed 14 weeks and that’s a relevant period as the EU's Pregnant Workers Directive says that a minimum of 14 weeks maternity leave is given for the safety and health of those who are pregnant, have recently given birth or are breastfeeding.

If the enhanced maternity pay was for more than 14 weeks, it would be more difficulty to argue that it’s in connection with pregnancy or childbirth and therefore the decision may be different.

See News Analysis:

IR35

The Government intend to change IR35 rules for medium and large businesses in the private sector from April 2020.  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. The favoured position seems to be to bring such private businesses in line with the existing rules for the public sector where the employer is responsible for determining whether IR35 applies and for paying tax and NICs if it does. The closed in May.  Government guidance on what organisations should do to start preparing for April 2020 is available on the Government’s .

Holiday pay

The Court of Appeal in East of England Ambulance Service v Flowers³ confirmed that non-guaranteed overtime and voluntary overtime which is sufficiently regular and settled should be included in holiday pay.

This case may increase the likelihood of similar cases and another Court of Appeal case in Northern Ireland may make them more expensive. The Northern Ireland case overturned an earlier case that put restrictions on backdating holiday pay claims.  The case is not binding on the Courts in England and Wales but is likely to put fresh impetus into the growing opinion that the two year back-stop rule implemented by David Cameron in 2015 is not lawful.

See News Analysis:

Transparent and predictable working

The European Council has adopted , concerning, amongst other things, the rights of agency workers and gig workers. The implementation date is not yet confirmed but it’s expected to be in the next few years.  Regardless of Brexit, the UK is likely to implement because it fits with the recommendations from the .  The directive is likely to lead to some material changes, including:

• in certain situations, there will be a rebuttable presumption of employment rights – so it will be much harder to defend many of the employment status cases;
• a liability to pay workers accrued unused holiday pay at the end of an assignment;
• significant limits on the ability to prevent workers taking up parallel engagements with other staffing companies/platforms/end users;
• a right to request, after at least six months service with the same employer, employment with more predictable and secure working conditions;
• a right to receive training cost-free, when such training is required by an agreement with a union or national legislation.

See News Analysis:

Recording working hours

The European Court of Justice has confirmed⁵ that Member States must require employers to set up an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured. This goes beyond the obligations in the current UK Working Time Regulations 1998 (Regulations). It’s likely therefore that the Regulations will need to be amended and new guidance provided to employers.

See News Analysis:

Knowledge of disability

The recent EAT case of Baldeh v Churches Housing Association⁶ provides a warning to employers that anything mentioned by employees about mental or physical health which could impact on their day to day lives and which are likely to continue for a period of longer than 12 months may be a disability and provide the employee with protection under the Equality Act. In these cases, it’s important to seek advice and an occupational health assessment before making any decisions to dismiss. 

See News Analysis:

Consumer

New consumer right powers

The Government has confirmed in a that it intends to legislate to grant the Competition and Markets Authority (CMA) new powers to deal with breaches of consumer law.

Under the plan, the CMA could impose fines directly on traders which it considers to have breached consumer law without having to go to court. This proposal is a step beyond what had been stated in last year's (which suggested fines could only be imposed after a court order). The EU has proposed fines of up to 4% turnover under its .

The new proposals seem to have been prompted by the of the 'loyalty penalty' which found that consumers who stay with a particular provider can end up paying significantly more than new customers.

These proposals will formally be put out for consultation.

See: LNB News:

Competition

Cover prices

The CMA has that five office design and fit-out companies have been fined £7m for cover bidding. Cover bidding is where 2 or more companies secretly agree that at least one of them will submit a bid that is deliberately high or of poor quality to try and make sure that a specific company can win the tender.

See LNB News: