In this forum we looked at updates in different areas of law including: - Commercial Law – six changes to contract law that you might have missed over the last six months - Employment Law – what’s new, what’s changed, your questions answered - Data Protection - looking at ICO investigations and news, ahead of GDPR coming into force - Competition Law – what's new, will the post Brexit world be different and the evolving position in relation to online reselling restrictions - Regulatory Update - in-house lawyers and legal privilege and impact of the new sentencing guidelines for health and safety offences.

1. In-house lawyers’ forum
March 2017, Nottingham

2. Employment update
Paul Sands, Solicitor

3. Today’s session
1. Restrictive covenants
2. Immigration Act 2016
3. Gender Pay Reporting
4. Budget

4. Restrictive Covenants

5. Restrictive covenants: Overview
• Contractual term that can place post termination
restrictions on an employee in relation to:
– Employment with competitors
– Poaching colleagues
– Poaching clients/customers
• To be enforceable they must be reasonable in
duration and geography, not going beyond what is
reasonably necessary in order to protect legitimate
interests of the employer’s business

6. Bartholomews Agri Food v Thornton
• Employee began work with the employer as a trainee
agronomist in 1997
• At this time he had no experience or customer base
• At the time of termination, the employee’s customer
base made up for 2% of the employer’s overall turnover
• Employee challenged the enforceability of a non-
compete clause which prevented him from working
with the whole of the employer’s customer base for 6
months

7. Bartholomews Agri Food v Thornton
• High Court rejected the covenant on two grounds:
• If a covenant is unenforceable when it is first imposed
(it was imposed when the employee was a trainee,
meaning, at that time, it was wholly unreasonable due
to his lack of client base), it will remain
unenforceable regardless of experience gained or
promotions
• Preventing an employee from dealing with any
customer regardless of previous dealings is too wide,
even after a 20 year career

8. So what?
• Don’t just get off the shelf covenants drafted up –
think about it!
• When was the covenant agreed? The question is
whether it was reasonable then, not whether it is
reasonable now
• Is the covenant limited?
• Many covenants in employment contracts are
outdated and too wide – check them every time
your employees are promoted – do they still work?

9. Immigration Act 2016 (IA 2016)

10. a) Immigration: Overview
• It is unlawful to employ a person who does not
have a right to live and work in the UK or who is
working in breach of their conditions of staying in
the UK
• Initial and, sometimes, follow up checks required
• Failure to do so can lead to civil or criminal
penalties
• Enforced by the Home Office (via immigration
officers)

11. b) Public Sector Fluency Duty
• Introduced under the Immigration Act 2016
• Came into force on 21 November 2016
• Applies to public authorities (including NHS Trusts)
• Code of practice came into force on 22 December
2016 – gives guidance and examples for employers

12. b) What is it?
• The fluency duty applies to those persons working
in roles which have, as a regular and intrinsic part
of that role, a requirement to speak to members of
the public in English.
• This could be in face to face discussions or over the
telephone.
• It covers employees, apprentices, workers and
agency workers

13. b) Steps to take
• Assess what standards are required for particular
roles and whether those standards are being met.
• If not, consider training / methods of support
• Review existing policies and procedures to include
reference to the fluency duty
• Review employment contract to include reference
to required fluency standard
• Ensure members of the public are aware of the
complaints procedure and how they can access it

14. c) IA 2016: Other changes (1)
• It used to be a criminal offence to knowingly employ
an individual who does not have the appropriate
permission to undertake the work for which they are
employed
• From 12 July 2016, the offence was widened to include
employing an illegal worker where the employer has
“reasonable cause to believe” the employee does not
have the appropriate immigration status.
• Increased conviction on indictment from 2 to 5 years

15. c) IA 2016: Other changes (2)
• A power of immigration officers to close businesses that
continue to employ illegal workers
• Increased powers for immigration officers to enter
businesses and seize/retain evidence
• A requirement that public authorities ensure public sector
workers in customer-facing roles speak fluent English
• April 2017 - Provisions giving the secretary of state the
power to introduce an ‘immigration skills charge’ on certain
employers who sponsor skilled workers from outside the EEA

16. Gender Pay Gap Reporting

17. Gender Pay Reporting
• Final draft Government regulations published 6
December 2016
• All relevant employers with more than 250
employees will be required to publish
information about their gender pay gap
• Includes bonus information
• Government has pledged to work with
businesses to eliminate all-male boards in top
350 companies

18. Gender Pay Reporting – next
steps
• carry out a pay audit to identify what your likely
gender pay gap will be and the reasons for this;
• benchmark your gender pay gap within your industry;
• consider what information you will want to add to any
report to set your figures in context;
• start to plan a strategy to address your gender pay gap
• Consider communication strategy ahead of publication
date
• We can help you!

19. Budget
Implications for employers and employees:
- Changes to taxation of termination payments
- IR35 – responsibility shifts from personal service
company to public sector ‘employer’
- Removal of salary sacrifice tax breaks apart from
certain exemptions

20. Regulatory update
Rachel Lyne, Partner

21. CPD update
Claire Stripp

23. Coffee break

24. Commercial update
Richard Nicholas, Partner

25. Areas to look at today:
• Making a start
• Making a change
• Making a claim
5 minutes before signature

26. Quick advert…
In house lawyer “checker” Product
- Free second opinion/expert view/check a point
– Approx 20 minutes on the telephone
- Equivalent to seeing a specialist at their desk
- Exclusively for in-house lawyers
Terms and conditions apply ☺

27. Making a start
Letters of intent
• Spartafield v Penten – CFI 2016
• Arcadis v Amec – CFI 2016

28. So What?
LOI can be a good thing
BUT
– what should happen if the agreement isn’t signed?

29. Making a change
No-Variations provisions
- Globe Motors v TRW (CA) 2016
- MWB v Rock Advertising (CA) 2016

30. So what?
“No Variation” is a bluff
- So are long “Change Control” schedules
- Regardless of what the contract says – watch out
for changes. You need a way to respond to them!
“Your in-house lawyer – not there for pre-signature”

31. Making a Claim
Notices provisions/ preventing claims
• Oliver Nobahar Cookson v The Hut Group 2016 (CA)
• Axa Reinsurance v Field 2016 (CA)
• Lehman v Exxon Mobile 2016 (CFI)
• Teoco v Aircon Jersey 2016 (CFI)

32. Making a Claim
Notices provisions/ preventing claims
Oliver Nobahar Cookson v The Hut Group 2016 (CA)
“…within 20 business days after becoming aware of
the matter…”

33. Making a Claim
Notices provisions/ preventing claims
Axa Reinsurance v Field 2016 (CA)
“…as soon as possible”

34. Making a Claim
Notices provisions/ preventing claims
Lehman v Exxon Mobile 2016 (CFI)
“…by close of play”

35. Making a Claim
Notices provisions/ preventing claims
Teoco v Aircon Jersey 2016 (CFI)
“within a reasonable notice period”
“…are contemplating claiming…”

36. So what?
• Time obligations do work BUT are interpreted
narrowly (as a limit of liability)
• Likely not to capture claims/events that are new
• If you make a claim – be bold! Don’t “contemplate”
claiming – just do it!

37. In the last 5 mins
• Which 5 words that can save you from large losses?
– Let me think about it…?
– Actually…let’s not get married…?
– I’ll check with Browne Jacobson…?

38. In the last 5 mins
Fairhurst Developments & Fairhurst v Collins
(2016) CFI
– “For and on behalf of”

39. So what?
• Making a Start
– Letters of intent – can be useful, but what if nothing follows?
• Making a Change
– need to be vigilant “no-variations” clauses don’t work
• Making a claim
– Time limits are read narrowly. Claims must be bold.

40. So what?
• For letter agreements in particular
“For and on behalf of”
• When you need quick advice
…Run it past Browne Jacobson

41. Data protection update
Helena Wootton, Partner

42. Today’s topics
• ICO priorities
• Legal updates
• GDPR
• Brexit and adequacy

43. The ICO and her enforcers

44. ICO’s key priorities
• Current information rights priority areas
– Health
– Criminal justice
– Local government
– Online and mobile services
• Sectors under the spotlight
– Charities
– Affiliate marketing
– Gambling, finance and dating
– Politics

45. Security breach trends

46. Marketing concerns

47. Some recent developments
• Subject access
– Ittihadieh v 5-11 Cheyne Gardens [2017] EWCA Civ
121
– Dawson-Damer v Taylor Wessing LLP [2017] EWCA
Civ 74)
• Telephone marketing
– Media Tactics March 2017
– FEP Heatcare v ICO EA/2016/0093
• Text marketing
– LAD Media Limited January 2017

48. Some recent developments
• Telephone preference service
– IT Protect Limited Jan 2017
• Government to introduce monetary penalties
for directors
• Disqualification of Leighton John Power
– Help Direct UK MPN

49. New guidance
• Consent – consultation open
• Big Data, artificial intelligence, machine learning
and data protection
• Data portability
• Lead supervisory authorities
• Data Protection Officers

50. Other legislation
• ePrivacy Regulation
• Digital Economy Bill

51. GDPR – May 2018
• Consider your organisations readiness for GDPR?
• Who is preparing your organisation for GDPR?
• What is the most significant hurdle your
organisation faces in preparing for GDPR?

52. New guidance from ICO
• Consent – consultation open
• Big Data, artificial intelligence, machine learning
and data protection
• Data Portability
• Lead supervisory authorities
• Data Protection Officers

53. UK data protection post-Brexit?
• Adequacy and essential equivalence
• Possible stumbling blocks
• Impact of inadequacy

54. Competition law update
Matt Woodford, Partner

55. What will we cover?
• General update
• What’s on the horizon?
• Brexit
• Will anything really change?
• Online restrictions
• Where to tread carefully

56. Update - Fines
• EU
– €3.7 billion in 2016
– Average is €1.8 billion p.a
• UK
– £142 million in 2016
– £0.37 million in 2014!
– Pharmaceutical, modelling
agencies, online posters,
bathroom fittings, catering
equipment, galvanised
steel tanks

57. Update – UK focus
• More cases (16 in 2016 v. 6.8
in previous 5 years)
• Commitment to more cases –
increase target by 50%
• Balanced portfolio of big &
small cases
– Warning & advisory letters
– Director disqualification
(online posters case)
• Any areas of focus?
– Pharmaceutical
– Value for money for public
services
– Online & digital

58. Brexit – What will change?
• Little change in short to
medium term
– Competition Act modelled on
EU competition law
– Duty of cooperation will fall
away – look to the US (?)
– Still subject to EU law in EU!
• But - no longer in single
market (?)
– Fortress UK (?)
– Absolute import/export
restrictions (?)

59. Brexit – Who will you deal with?
• Parallel competition
law investigations
• Merger control
– No more one-stop
shop
– More notifications to
multiple regulators
– CMA anticipating 40% -
50% increase in
workload

60. Online restrictions – Beware!
• Remains a key priority
for CMA and rest of EU
• More cases, more focus
but still limited
guidance!

61. Online restrictions – Beware!
• UK cases – bathroom fittings;
catering equipment; posters &
frames
• Warning letters – 37% related
to online
• Advisory letters – 43% related
to online
• Sectors – cosmetics &
toiletries; clothing; recreation
& sports goods; electronics
accessories; leisure products;
electronic equipment; utilities
– price comparison sites

62. Online restrictions – Caution areas
• EU guidance
– Internet friendly
– Limited help
– Undermining of exclusive
and selective systems (?)
• Absolute online sales ban
– Not even in a selective
system (Pierre Fabre)
– Consider bricks & mortar
requirement in selective
system
– Consider quality standards for
site

63. Online restrictions – Caution
areas
• Price (examples from CMA
letters)
– Below minimum advertised
price
– Fixed advertised price
– Withdrawal of discount
– Withdrawal of supply
• Price comparison site bans
– BMW / carwow case
(January’17)
– German case – sports
goods

64. Online restrictions – Caution
areas
• Third party platforms
– EU guidance suggests
that a restriction is ok
– German cases have
taken a different line
– Case before ECJ on
use in a selective
system (Coty)

65. Your speakers today
Richard Nicholas|0121 237 3992 |richard.nicholas@brownejacobson.com
Paul Sands|0115 976 6076|paul.sands@brownejacobson.com
Rachel Lyne|0121 237 4584|rachel.lyne@brownejacobson.com
Claire Stripp| 0330 045 2134|claire.stripp@brownejacobson.com
Helena Wootton|0115 976 6108|helena.wootton@brownejacobson.com
Matthew Woodford|0121 237 3965|matthew.woodford@brownejacobson.com

66. All information correct at time of production.
The information and opinions expressed within this
document are no substitute for full legal advice. It is
for guidance only and illustrates the law as at the
published date. If in doubt, please telephone us on
0370 270 6000.
© Browne Jacobson LLP 2017 – The information
contained within this document is and shall remain the
property of Browne Jacobson. This document may not
be reproduced without the prior consent of Browne
Jacobson.