REUTERS | Thomson Reuters

In-house solicitors will be familiar with the obligations of directors as set out in section 172 of the Companies Act 2006 (especially now there is a statutory requirement to report on it). Many of those same solicitors will be equally familiar with directors (newly appointed or otherwise) who believe that they have a legal obligation to maximise profit for the shareholders, and that this constitutes an ‘overriding duty’ or a director’s main ‘fiduciary duty’.

This fallacy persists for a number of reasons, including:
• Pressure from heavyweight shareholders who benefit most from short-termist decision making.
• Bonus and other reward packages.
• An easy metric that everyone understands.
• Fear of competitors.

However, the legal obligation in section 172 of the Companies Act 2006 is far more nuanced and provides a clear set of criteria which many directors may be surprised by. Now is an excellent time to revisit the fallacy of a legal obligation to maximise profit. We are in an age where environmental and social governance issues are rocketing up the corporate agenda and climate crisis is threatening both short and long-term stability. Section 172 speaks directly to those concerns.

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REUTERS | Andrew Winning

Recent events, including a significant judgment from the UK Supreme Court and the adoption of a landmark European Union directive, have put the spotlight on whistleblowing once again.

When faced with a whistleblower disclosure, there is plenty to keep GCs up at night, from ensuring that the report is properly investigated to preventing reprisals. But it has become increasingly clear that whistleblowers play an invaluable role in ensuring corporate compliance and that, for the good of the organisation, whistleblowing should be made as easy and effective as possible. Nearly half of the respondents to Kroll’s 2017/18 Global Fraud and Risk report indicated that whistleblowers uncovered instances of fraud within their organisations.

In the area of whistleblowing, as elsewhere, legal departments face the daunting task of reducing costs while managing increasing legal complexity. Meeting this challenge requires clarifying how the legal team fits into the whistleblowing process, as well as fostering a culture that encourages people to speak up. Understanding the changes that technology is bringing to whistleblowing is a critical step in ensuring that an organisation’s whistleblowing procedures are up to scratch.

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REUTERS | Ricardo Moraes

Legal Geek once again provided plenty of food for thought for in-house lawyers. To my mind, this year’s key themes centred around innovation, collaboration and client-focus.

Empathetic lawyers; not robot lawyers

“Behave like a robot and you will be replaced by one. Work like a robot and you should be replaced by one.”

This quote, and the same speaker’s advice to “get into the soul of the client” was a recurring topic of discussion during the day. Although efficiency tools will gain traction, lawyers can still thrive by focusing their efforts on establishing deep, personal knowledge of their client. Lawyers should be encouraged to listen, be empathetic and provide intricate, tailored, strategic solutions for their client. From an in-house perspective, this means focusing on the end users of your advice: your colleagues.

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REUTERS | Darren Staples

“Networking” can have a bad rap. Somehow its true value is overshadowed by  an image of self-promotional behaviour and active selling technique. But networking is an essential part of professional life – and is an increasingly important skill to practise as reliance on technology-based interactions grows and the value of each personal interaction increases.

Legal professionals, whose value to their clients (and therefore their career trajectory) depends on being able to communicate both with them and on their behalf, are not exempt from the requirement to develop – and practise – this skill. If we forget how to read the values that move and influence our colleagues, our clients and our peers, we forget how to listen to others, get ourselves heard, make an empathic decision and ultimately make a difference in our workplace.

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For the most part, well-drafted laws do and should not suffer from unintended consequences. But occasionally they can have side-effects that legislators would struggle to have foreseen.

The GDPR is generally acknowledged by right-thinking guardians of privacy to be a good law that is having a material positive impact on the protection of personal data and the systems and processes connected with ensuring privacy. Should it now be changed to cover the following scenario? Continue reading

REUTERS | Louafi Larbi

Remember GDPR?

No doubt your organisation has been delivering a significant amount of GDPR training over the past couple of years, but has it worked? Your GDPR training should deliver frontline impact, helping your staff to protect your organisation against data breaches and to protect the rights of individuals. However, a recent personal experience suggests that this might not always be the case.

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REUTERS | Christian Charisius

Social and emotional support and the role of individuals, families and communities in providing this are vital to managing wellbeing. We all need someone to talk to about personal matters without judgement and in confidence, and to listen to us and offer help when we need it. When we are in a difficult situation we lose our problem-solving abilities, it can be impossible to focus and it can seem overwhelming to choose what action to take. Sometimes a listening ear and a nudge in the right direction is all we need to move on.

For some it’s not as easy as talking to a friend or family member. Perhaps you don’t want to worry them. Maybe they have their own problems going on. You may not have spoken to them in a while because you’ve been so busy at work. They may not understand what your work environment is like or the particular issues you are facing. You might be afraid to unburden yourself or let go in front of them. Some of us just don’t have people we can turn to in difficult times for a variety of reasons.

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Every now and then, a judgment emerges that threatens – or promises, depending on your perspective – a sea change in data protection litigation. The recent Court of Appeal judgment in Lloyd v Google [2019] EWCA Civ 1599 is the most recent example, with particular relevance to large-scale class actions seeking compensation for the fact of a data protection breach alone, without needing even to assert distress or pecuniary loss. Continue reading

REUTERS | Dominic Ebenbichler

Crunch time for cookies?

On 1 October 2019, the CJEU ruled that the organiser of an online lottery, Planet49, did not get consent for cookies as required by the ePrivacy Directive (2002/58/EC) because the consent box was pre-ticked. Most privacy lawyers would have been expecting this conclusion – not least because it follows the March 2019 opinion of Advocate General Szpunar. Continue reading