Commercial news update - April 2018: The meaning of goods for commercial agents, GDPR, TUPE and zero-hours contracts

05 Apr 2018 | 5 min read

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This month with updates across corporate & commercial, data security, employment, consumer and bribery and corruption.

We always provide the commercial aspects, and look at the practical steps for you to consider.

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This month, we cover the following:

Corporate & Commercial—tune in from 0:15 secs

The meaning of Goods for Commercial Agents, where an agent that has been engaged to sell goods is terminated, the agent will, generally, be entitled to compensation in accordance with the Commercial Agent Regulations. Software delivered electronically is not a sale of goods (Computer Associates UK Ltd v Software Incubator Ltd)

The Court of Appeal has ruled that legal advice privilege will only apply where a solicitor is providing legal advice. Confidential communications between solicitor and client—disclosable or not? (Kerman v Akhmedova)

Contracts regularly require parties to use reasonable endeavours to do an act. In a recent case (Gaia Ventures Ltd v Abbeygate Helical (Leisure Plaza) Ltd), land had been sold to a developer and the contract required the developer to use reasonable endeavours to reach certain conditions within 10 years.

Since October 2009 new directors have been able to keep their residential address private by making use of a separate service address on the public records, however addresses that pre-date October 2009 have remained on the record except in cases where the directors have been able to show there was a serious risk of violence or intimidation. Companies (Disclosure of Address) (Amendment) Regulations 2018

Data security-tune in from 2mins 30secs

Once the General Data Protection Regulation (GDPR) has been implemented, the annual notification requirement to the Information Commissioners Office (ICO) will be abolished, however businesses will still need to pay a fee, unless an exemption applies. Draft regulations and guidance on the fees regime is available on the ICO website. This states the annual fee will be £40, £60 or £2,300 depending on turnover and number of staff.

The ICO has also recently published guidance on record keeping under the GDPR. The record keeping requirements go beyond the current obligations and require businesses to keep full details of processing activities including who data is shared with, the purpose and security requirements. Companies with less than 250 employees and that only undertake occasional low risk data processing are exempt from the same record keeping obligations.

Employment-tune in from 3 mins 33 secs

When businesses are acquired, or services are transferred from one business to another, dedicated employees will usually have a right to transfer to the new provider under TUPE regulations. In-house lawyers: TUPE—how to identify and manage a TUPE situation

Wagamama, TGI Fridays, Marriott Hotels and Karen Millen are among the companies named and shamed by the government for failing to pay the legal minimum wage. Government names and shames employers for not paying minimum wage

Zero hours employees and workers have the right to 5.6 weeks' paid statutory holiday per year and a recent case Calculation of holiday pay for workers with irregular hours (Brazel v The Harpur Trust) has confirmed that the correct calculation of the holiday pay is the average weekly earnings over the previous 12 complete weeks.

Personal service companies are commonly used by contractors to provide tax efficiencies. Typically, the individual will pay him or herself and often a spouse who is also a shareholder mostly by dividends rather that PAYE. In a recent case (Christa Ackroyd Media Limited v HMRC) concerning a journalist who was engaged by the BBC through her personal services company on long term full time contracts, the HMRC successfully argued that the nature of the work meant that she was akin to an employee and should therefore have paid PAYE tax and national insurance on all income from the BBC and not just the sums paid to her as salary. It’s understood HMRC’s claim exceeded £400,000.

Consumer-tune in from 6 mins 10 secs

The Office for Product Safety & Standards (a part of the Department for Business, Energy and Industrial Strategy) has teamed up with the British Standards Institution (BSI) to issue a new Code of Practice for product recall and corrective actions. Whilst it is only a code of practice, businesses that comply with its recommendations are likely to be treated as having complied with their legal obligations. The code has been created in the light of concerns that product recalls have not been effective. A report by Electrical Safety First claimed that electrical product recalls in the UK have an average success rate of just 10-20%. New guide to improve consumer product safety recalls

Bribery & Corruption-tune in from 6 mins 54 secs

The Bribery Act makes companies automatically liable if a person associated with it bribes another. There is however a defence if the company can show it has adequate procedures in place to prevent bribery. The jury is out on compliance in the first test of the Bribery Act’s adequate procedures defence

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