Category Archives: EU Law

Oh, The Crosses We Have To Bear…

With the state of world affairs today, religious fanaticism, radicalisation and hatred is a topic that can spill over into the workplace, especially into the controversial area of religious symbolism. In fact two recent cases adjudged by the European Court of Justice may have muddied the legal waters somewhat.

The ruling that gained most publicity states that banning all religious, political or philosophical symbols in the workplace isn’t direct discrimination, although specifically banning symbols from just one religion would be. This was further complicated as it also stated that, “banning religious symbols would be indirect discrimination if it had a disproportionate effect on a particular religion or belief”.

Ultimately the European Court of Justice left national courts to determine if discrimination had or had not occurred in individual cases. Unfortunately, this ruling clashed with a previous ruling by the European Court of Human Rights which ruled in 2013 that, “manifesting a religious belief is a fundamental right, partly because a healthy democratic society must tolerate pluralism. The court accepted that an employer’s wish to project a certain corporate image was also legitimate, but in that particular case, the court held that the individual’s religious freedom had been unlawfully restricted.”

Religious symbolism therefore remains a legal minefield; especially should a customer wish not to be served by a member of a particular religious affiliation. Indirect discrimination is not necessarily unlawful if it can be justified in respect of a legitimate aim, such as an employer’s desire to project an image of neutrality toward its customers, which is a legitimate aim.

Ultimately make sure you apply the same rule to all religious or philosophical viewpoints and make sure it can be justified by having previously implemented a policy of religious neutrality, before you consider banning all religious symbols in your workplace.  Even then, it is probably safer just to not ban religious symbols. If you need any advice on this or any other legal matter, give us a call.

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Filed under Dispute resolution, Duty of care, Employment Law, EU Law, HR Issues, UK Law

Latest changes in the Legal System

The various specialist civil courts in England and Wales will be reorganised and be officially known as the “Business and Property Courts of England and Wales” from June 2017. They will handle, amongst other matters, international dispute resolution jurisdictions. The courts included within the Business and Property Courts will be as follows:

  • The Commercial Court which will continue to cover all its existing subject areas of shipping, sale of goods, insurance and reinsurance etc.
  • The Admiralty Court.
  • The Mercantile Court.
  • The Technology and Construction Court which deals with major technology and construction cases.
  • The Financial List which deals with all banking and financial market issues.
  • The Companies and Insolvency Court.
  • The Patents Court.
  • The Intellectual Property and Enterprise Court.
  • The Competition List.

The new structure will provide more flexibility while preserving the practices and procedures of these courts. Judges with suitable expertise and experience will be able to cross-deploy so as to be able to sit on cases where their expertise can be best utilised. The current situation means that judges who are experts in a particular legal field are not readily available to sit in cases in that area in another court, so, highly expert competition law judges in the Queen’s Bench Division cannot easily sit on the bulk of competition law cases that take place in the Chancery Division.

The overall intention is to enhance the U.K.’s reputation for international dispute resolution and to ensure that the U.K. continues to provide the best business court-based dispute resolution service in the post Brexit world. Business and Property Courts will be set up in Birmingham, Bristol, Cardiff, Leeds and Manchester, initially with planned future courts in Newcastle and Liverpool and these courts will enhance the connections between Business and Property work carried out both outside and within London.

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Filed under Arbitration, Commercial law, Company Law, Competition Law, Construction, contract law, Copyright Law, Dispute resolution, EU Law, Intellectual Property, Legal news, UK Law

Article 50 is here.

Well article 50 has been effectively triggered today. Since the referendum there has been a period of uncertainty, but the latest analysis of possible effects on businesses and the probable changes to the law can be better understood.

One of the major issues that will need to be addressed will be all the EU registered trademarks, designs and the protected food and drink designations. Currently we have a national system which closely mirrors the EU regime, but after Brexit, the EU Trade Mark and the Community Registered Design legislation will no longer apply in the UK. Also protected names such as “Stilton” cheese will no longer apply to UK products so we may see in the future, French “Stiltons” or “Melton Mowbray Pies” and UK “Champagnes” and “Parma hams”.

Although the government has stated it will transpose much of EU law into UK law (The Great Repeal Act), this is not a simple as it sounds, there are many, many, alterations needed for the Laws to continue to make sense in the UK only and it remains unclear what will happen to current EU Trade Marks and Community Registered Designs. In any event, it’s possible that the UK Intellectual Property Office could be inundated with new and renewed registrations.

Data protection is another area of concern; currently the UK is committed to implementing the General Data Protection Regulation, but this may not be enough to prevent future problems with the EU as there may be legal challenges within the EU to recognise non-EU country’s data laws. On possible solution would be to have individuals either specifically give their informed consent to transfer their data or add clauses to contract that may involve data transfer.

Regulated industries are also likely to be affected; currently London houses the headquarters of the EU pharmaceuticals and veterinary products regulator, the European Medicines Agency, but this must change post Brexit which might mean delays to the clinical testing or marketing of new products in the UK. This might also apply in other heavily regulated sectors like the motor and aviation industries.

Businesses will encounter difficulties in many areas planning for the future with the legal outlook so uncertain. Although this brief overview doesn’t cover the thorny subjects of immigration restrictions and trade barriers, business needs certainty, which will only happen as the negotiations begin in earnest and the Government’s approach to tidying up the legal mess that Brexit involves becomes clearer.

What is certain is that if you are planning to enter into, or have existing long term agreements with partners in the EU you may need to consider the implications for those agreements. Some changes can sensibly be made now to deal with a post-Brexit world, so why not give us a call.

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Filed under Commercial law, Company Law, Copyright Law, Dispute resolution, Ecommerce, EU Law, Intellectual Property, Law and Technology, Legal news, UK Law

Planning for Brexit?

Now that Teresa May has announced she plans to trigger article 50 by May of next year, perhaps it’s a good time to look at practical steps regarding employment law, you as an employer could be taking.

Much of EU regulations will be passed into UK law and amended or removed as time allows so why not take the opportunity to review your employment contracts and employee handbooks? That way you can take advantage of any repeals in the pipeline without creating any additional risk if nothing changes. Such a review might well prevent a situation like that of an employee who still retains certain contractual benefits based on EU regulations, even though the UK statutory regime no longer requires it.

If employers begin to prepare a few years ahead of any possible changes, it will give them the flexibility to introduce any such provisions for all new joiners from this point on. For example, regarding how holiday pay is calculated to include say, overtime and commission, a simple clause added to the contract along the lines of “to the extent allowed by law” would enable an employer to take advantage of the situation if this law is thrown out following Brexit. This law is currently unpopular with employers and could well be in the first tranche of EU legislation reviewed by the UK Government.

Similarly, EU law currently entitles employees to carry forward holiday days to the next holiday year if they are unable to take them in the current one owing to sickness, absence, or family-related leave. This exception is usually expressly set out in employment contracts and could easily be amended to state that carry over will only be allowed “to the extent that the law allows”. That way if the law change, the employer is quite entitled to place restrictions according to the new legal requirements.

Given that there has been much discussion, especially in the financial services sector, of moving jobs to the continent so as to keep a presence within the EU market, mobility clauses for key employees might be worth reviewing and possibly tightening up, in good time for such a move.

These are only a few examples, but a review now is unlikely to be wasted effort, whatever the future has in store, and as always, if you need any help or advice, give us a call.

 

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Filed under Employment Law, EU Law, HR Issues, UK Law

They’re on their way!

Most companies, even those that just provide services, sooner or later will order a product either to use themselves or to sell on. This will inevitably bring them in to contact with shippers or couriers and have to deal with the legalities of “Goods in Transit”; a specific term for legal and insurance purposes, it refers to any carriage of goods by road, sea, air or rail.  Goods in transit are always at risk of damage, loss or even seizure, so it’s important to understand the laws surrounding international transportation. If your goods don’t arrive for whatever reason, this could have a negative impact on your business. All goods in transit legislation is based on a number of international conventions and national standard codes of practice:

The Warsaw and Montreal Conventions: The overwhelming majority of goods transported by air are carried by passenger airplanes. The Warsaw and Montreal Conventions cover contractual rights, liabilities and obligations of the sender and the carrier.  Unless a special value is declared, loss and damage and/or delay of cargo results in liability which is calculated on an amount per kilo of cargo.

The Hague Visby Rules: are standard set of rules governing transport of goods by sea between most European countries. The USA however applies the Hague Rules. Standard Hague Visby Rules state that the carrier must issue a bill of lading clearly displaying information about the goods condition, overall weight and quantity. The sender must provide accurate information about the goods, supply appropriate packaging and can only make claims within set limits. The carrier must exercise skill and care when loading, handling, carrying and finally discharging the goods at the destination port. Compensation levels are fixed and agreed per package or per kilo at the destination port. Carriers can however deny their liability for events such as fire or dangers of the sea such as storms etc.

CMR: The CMR note is essentially a standard template of terms and conditions that apply to goods in transit by road and is governed by the Carriage of Goods by Road Act 1965. The note applies to international transportation of goods between two parties based in two different countries. The CMR note is an important document that proves that the road courier has received the goods and that a valid ‘goods in transit by road’ contract exists between you and the courier.

International Transit of Goods – The TIR: This allows the transporting vehicle to cross borders of many countries without repeated checks by local custom authorities. The goods are only checked and sealed once at the outset and their final destination. The TIR system does not apply within the European Union as goods in transit there do not need multiple checks.

CIM – Goods in Transit by Rail: CIM is an equivalent of CMR for goods in transit by rail.  In accordance with the standard CIM terms, carriers accept responsibility only for loss or damage while the goods are in their possession. Any additional cover must be purchased separately from a transit insurance broker.

Couriers and shippers deal with these documents daily, but there’s no harm having a basic knowledge of what they entail and as always, if you need help and advice, give us a call.

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Filed under Commercial law, Dispute resolution, Duty of care, EU Law, Goods in Transit, UK Law

What “right to work” check?

Although the new Immigration Bill 2015-16 is still going through Parliament it’s probably a good idea to look at what’s involved and what can go wrong with right to work checks. Under current legislation employers are responsible for the UK status of those they employ and with the changes that are often being made, mistakes can and do happen. Getting it wrong can be costly, a £20,000 civil penalty and in some cases a criminal conviction. Businesses that employ a high number of low skilled workers, like hotels and restaurants should begin preparing for the changes now because the repercussions of failing to ensure there are no illegal immigrants in their workforces will be severe.

At the moment an employer commits a criminal offence if they knowingly employ an individual who does not have permission to work in the UK. Under the new legislation an employer may be found guilty if they had ‘reasonable cause to believe’ someone was an illegal worker.

The bill also increases the maximum prison sentence for an employer’s criminal conviction from two to five years and gives immigration enforcement officers the power to issue an illegal working closure notice which effectively shuts down a business for 48 hours and can be extended if the Home Office makes a successful application to the courts.

The tragedy is that most employers who have fallen foul of the law have done so solely due to poor or nonexistent practices and procedures so here are a few easily avoidable pitfalls:

  • Not recording the date on which a check was carried out
  • Not making follow-up checks at the correct time
  • Not carrying out the additional checks if the employee is a student with work restrictions.
  • Not retaining evidence of checks for the necessary period of time or by not retaining copies in a secure manner
  • Badly photocopying documents so they’re unclear or incomplete.
  • Conducting right to work checks after the employee has already started work.

All of these can be avoided just by reviewing your current practice and ensuring the right people receive the correct training. As always, if you need help or advice, give us a call.

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Filed under Apprenticeships, Duty of care, Employment Law, EU Law, HR Issues

Somebody stole my data!

Since the cyber attack on Talk-Talk hacked into over 150,000 sets of personal details and because of the tardy way the company responded, the new EU General Data Protection Regulation now obliges all data controllers to notify supervisory authorities such as the Information Commissioner’s Office of personal data breaches within 72 hours of becoming aware of such a breach, an obligation lacking in the Data protection Act 1988. Personal data breaches are defined in the new regulations as any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed.

The new regulation will replace all data protection legislation in EU member states (including the UK’s DPA) without the need for further national legislation. It will require all personal data breaches, no matter how insignificant, to be documented by data controllers, including the facts surrounding the breach, its effects and the remedial action taken. Some, if not all of it, will also be accessible via freedom of information requests.

Under Article 32 of the new regulation data subjects should be notified without undue delay if the breach is likely to result in a high risk to their rights and freedoms (i.e. identity theft), in order to allow them to take any necessary precautions. Notifications to individuals should be made as soon as reasonably feasible, and in close cooperation with the supervisory authority, i.e. a prompt notification if there’s an immediate risk of damage against a delayed notification if countermeasures are still ongoing. If such countermeasures render the data unintelligible, there is no need to notify at all. Should a data controller decide not to inform individuals of a breach he can be overruled by the supervisory authority.

At the moment serious breached of the DPA can incur fines of up to £500,000, but the new regulation increases this to 4% of global annual turnover for the preceding year (for businesses) or €20m and also a right for individuals to claim civil damages. Now would be a good time for all organisations that hold data on individuals to review their security procedures and put in place processes to comply with the new rules.

If you need any legal help or advice, why not give us a call?

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Filed under Confidentiality, Cybercrime, Duty of care, EU Law, Law and Technology