REUTERS | Mike Blake

What’s on the agenda for in-house lawyers in September 2017?

Key items on the agenda for businesses this month include the expected publication of the Data Protection Bill, the coming into force of the corporate offence of failure to prevent facilitation of tax evasion and dealing with the implications of the Supreme Court’s judgment on employment tribunal fees.

Publication of the Data Protection Bill

Publication of the Data Protection Bill is planned after 5 September 2017 when Parliament returns following the summer recess. The Bill will provide for the repeal of the Data Protection Act 1998 and incorporate the EU General Data Protection Regulation ((EU) 2016/679) (GDPR) and related UK derogations into UK law. This will provide for continuity of data protection standards in the UK following Brexit. The Bill will reflect the GDPR, which enhances existing data protection law, including by providing for Information Commissioner’s Office (ICO) penalties of up to £17 million or 4% of global turnover.

For most in-house lawyers, the focus will remain on establishing the right compliance framework in relation to data protection for May 2018. With that in mind, the ICO continues to publish guidance on various aspects of the GDPR, most recently on consent.

Failure to prevent facilitation of tax evasion offences come into force

On 30 September, the corporate offence of failure to prevent facilitation of tax evasion comes into force. The Criminal Finance Act 2017 (CFA) creates two new offences for companies of failing to prevent facilitation of tax evasion, both in the UK and overseas. The offence will mirror that of section 7 of the Bribery Act 2010, whereby a company is held criminally liable for the actions of its staff, agents or other persons associated with it, unless it can demonstrate it had reasonable “prevention procedures” in place.

Draft guidance on the offences was updated in October 2016.

Employment tribunal fees ruled unlawful: assessing the impact on claims

In July, the Supreme Court unanimously declared that employment tribunal and Employment Appeal Tribunal fees are unlawful. The effect of this momentous decision is that all fees paid since 29 July 2013 must be reimbursed by the government, and fees are no longer payable for future claims.

In-house lawyers will need to consider, among other things, whether their organisations are equipped to deal with an increase in future claims and whether the decision may also lead to the revival of historic claims, possibly even those that are technically out of time, were not pursued or were abandoned for financial reasons (see BT’s recent blog post).

Hearing on the gig economy and employment status scheduled

Uber’s appeal against the decision of the employment tribunal that two Uber drivers were workers and not self-employed contractors has been scheduled for 27 and 28 September.

Government reply to responses to its Green Paper on Corporate Governance expected

The government is expected to publish a reply to the responses to its Green Paper on Corporate Governance in September.

EU trade marks: protection rules set to be loosened

After 30 September, it will no longer be possible to refuse registration of a sign as an EU trade mark on the basis that it cannot be represented graphically.

This presents an opportunity for businesses to review any existing unregistered trade marks that cannot be represented graphically, and consider whether to seek additional protection by registration (see Practice note, Trade marks: Registration and portfolio management).

Small Business Commissioner’s complaints scheme expected to open

The Small Business Commissioner’s in-house complaints handling function is expected to start operating in autumn 2017. The complaints scheme will allow a small business supplier to seek a decision from the Commissioner about a payment issue with a larger business with which it has a previous, current or potential supply relationship.

Although BEIS has published proposals on how the Commissioner should operate the scheme, the detail of the complaints scheme will be set out in, as yet unpublished, regulations.

Larger businesses will want to review their existing payment procedures to see if they are likely to stand up to the Commissioner’s scrutiny. Smaller suppliers may want to look at their poor debtors and see whether the scheme presents an opportunity to put relationships on a better footing.

Market Abuse Regulation: GC100 poll results expected

The Market Abuse Regulation (596/2014/EU) (MAR) came into force in July 2016. It established a common regulatory framework on insider dealing, market manipulation and the unlawful disclosure of inside information.

GC100 has recently circulated a poll to find out how member companies have dealt with some of the requirements of over the last year. Practical Law Corporate will publish a summary of the poll results (on an anonymised basis) in September.

PLC Magazine has also published an article that looks at the most frequent questions raised by clients relating to compliance with MAR over the last 12 months.

Consultations coming to a close in September

Consultations on the following matters are closing in September:

Practical Law In-house Robert Clay

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