Update on GDPR Fines

Update on GDPR Fines

According to research carried out by Reynolds Porter Chamberlain, average fines from the Information Commissioner’s Office (ICO) rose from £73,000 in the year ending September 2017 to £146,000 in the year ending September 2018. The total value of fines increased by a huge 24% to £4.98m (previously £4m the year before). The rise in fines is due largely to the introduction of new stiffer penalties under the General Data Protection Regulation (GDPR) regime, which was introduced in May 2018. In accordance with this regime, potential fines have significantly increased to €20m or 4% of annual global turnover (whichever is higher). The ICO’s penalties were previously capped at £500,000. The ICO has said that they will not suddenly start imposing huge fines however with the cap gone, the risk to businesses of a significant fine for data protection breaches is a real one and businesses are being urged to invest in compliance. Amongst those businesses already issued with fines is Car Phone Warehouse, which faced a fine of £400,000 in January 2018 for failing to adequately protect the data of customers and employees from a cyber attack in 2015.

Family Law Post-Brexit

Family Law Post-Brexit

As we are all well aware, the United Kingdom will be leaving the European Union on 29 March 2019. There are ongoing negotiations being undertaken by our government but there is of course the risk that the UK will leave without having reached agreement with the EU.

Should such agreement not be reached, the UK will not have signed a withdrawal agreement. The planned transitional period should a deal be achieved will also not take place. This may have the effect that in many areas of law, cooperation between the UK and the EU member countries will cease and therefore the applicable legal regime in many practice areas will change.

Should no deal take place, this will cause change for family law. There is some ambiguity at this stage but the following points may apply.

In terms of abduction, the 1980 Hague Convention will still provide a mechanism for the return of children.

At present, matters involving children are dealt with by the country in which the child is habitually resident. This is governed by EU law. Therefore post Brexit, the legislation from the country in which the child resides will apply.

Also at present, if a judgment is made regarding a child, this judgment is recognised and enforceable in all other EU member states. After Brexit, it is not clear how the issues relating to enforceability will apply. It may therefore be the case that someone who obtains an order in England and Wales may well have to obtain a mirror order in the other country.

Unless further guidance is produced, family law will apply on a national basis and the reciprocal elements of EU law will no longer exist. It may be necessary to contact a lawyer in the other country to find out whether any bilateral treaties which predate EU membership may exist.

There is a risk that parallel cases may be taken in multiple jurisdictions as the status of ongoing cases is very much unclear as the rules governing enforceability of any case decided after 29 March 2019 will no longer have effect.

The true ramifications of a post Brexit world are yet to be fully understood. Family law will of course continue but perhaps, on a very different international path to what people have become accustomed to.

Squatters on your property?

Squatters on your property?

Having squatters take over a property can be a landlord’s worst nightmare.

And following the criminalisation of squatting in residential property in 2012, the risk to commercial landlords is growing all the time.

Clearly, prevention is better than cure and there are a number of steps to take to ensure your property is as safe as it can be to deter squatters taking up residence.

If they do gain access, however, there are two routes to remove squatters from commercial property; an interim possession order or the ‘standard’ route.

I have discussed the preventative measures along with both of the removal options and implications with property news website Place NW. You can read the full article here.

What constitutes harassment in the workplace?

What constitutes harassment in the workplace?

The Claimant was employed by the Respondent as a sales representative for just short of one year when he was dismissed. He brought a series of claims to include discrimination, victimisation on the grounds of disability and race and harassment.

The Tribunal rejected these claims and found that the Respondent’s reason for dismissal (poor performance) was genuine.

The Claimant had also brought a claim for harassment on the basis that he had been called a “fat ginger pikey” amongst other names. The Claimant was diabetic and sensitive about his weight and had strong links to the traveller community. Whilst the Tribunal concluded the comments were potentially discriminatory and could amount to harassment, they considered the context in which the comments were made, the office environment and the nature of the relationships between work colleagues. The Claimant had not complained at the time the remarks were made, did not appear to be upset by them and it was found that he had reciprocated by making derogatory comments to colleagues.   In addition the Claimant was unable to demonstrate a link between the comment, his medical condition and only one of his colleagues knew of his links to the travelling community. The tribunal therefore concluded that the treatment did not meet the harassment definition in s26 of the Equality Act 2010.

The Claimant appealed the decision to the Employment Appeal Tribunal but they agreed that the Tribunal was entitled to come to this conclusion, given that harassment claims are highly fact sensitive and context specific.

This case provides a useful reminder that the context in which alleged acts of harassment take place is key. When considering whether a derogatory comment amounts to harassment under section 26 of the Equality Act 2010, the context in which the comment was made and the nature of the relationship between the claimant and the maker of the comment should all be taken into consideration. However, employers should be wary of relying on a particular and apparently accepted office culture as justification for potentially discriminatory or harassing comments. Such an approach could give rise to claims from those in the workplace who are not active participants in ‘banter’ and who feel that they have been harassed at work as a result of the environment created by others. Employers would be better served by actively managing the behaviour of staff who do not act in a professional manner in the workplace.

Maternity pay: the Working Mums guide with Partner and Head of Employment, Tracey Guest

Maternity pay: the Working Mums guide with Partner and Head of Employment, Tracey Guest

Maternity pay is a minefield and many of us continue to be confused, especially when working on a fixed term or temporary contract.

Partner and Head of Employment, Tracey Guest, outlines the rights of expectant parents in this Working Mums guide to lead you through the baffling red tape surrounding your rights and allowances for part-time, agency and fixed-term contract workers.

Topics include:
– What is statutory maternity pay?
– Are temporary workers and those on fixed-term contracts entitled to SMP?
– Pregnant whilst on maternity leave – am I entitled to maternity pay?
– Maternity Pay Entitlement from two part-time jobs
– Refunding enhanced maternity pay
– Pregnancy-related discrimination
– Budgeting with a baby

You can read the full guide here: http://ow.ly/OtGE30mkXrP

Tribunalul Botoşani and Ministerul Justiţiei v Dicu C-12/17, ECJ judgment

Tribunalul Botoşani and Ministerul Justiţiei v Dicu C-12/17, ECJ judgment

This European Court of Justice judgment provides that the situation of a worker parental leave is different to that of a worker on sick leave (in the sense that it is foreseeable and a worker on parental leave is not subject to physical or psychological constraints caused by an illness) and also different from maternity leave (in that it is not to protect the mother’s biological condition or special relationship with the child during pregnancy and after childbirth) and therefore while under Article 7 of the Working Time Directive 2003/88/EC (WTD), annual leave accrues during sick leave and maternity leave, the same does not apply to periods of parental leave.  Therefore, according to the ECJ, Article 7 does not preclude a provision of national law which provides that paid annual holiday does not accrue during parental leave.

The current UK position is that entitlement to holiday under the Working Time Regulations 1998 (WTR 1998), only requires the individual to be an eligible ‘worker’ at the relevant time.  Periods spent on parental leave are not excluded and therefore statutory holiday will accrue during such periods.  This contrasts with the position in Romania, as illustrated in Ms Dicu’s case, where Romanian law provides for employment contracts to be suspended during parental leave and therefore, according to this case, it is lawful for holiday not to accrue during that period.  Therefore, it appears that, in the UK, the WTR 1998 go further than is required by the WTD.  Following this judgment however, it appears that the UK government could lawfully amend the WTR 1998 to provide for holiday not to accrue during parental leave but, until that time (if ever) the position in the UK in respect of statutory holiday therefore remains the same.

As for the contractual holiday entitlement position, the Maternity and Parental Leave etc Regulations 1999 provide that only certain specified contractual terms continue during parental leave (e.g. notice of termination) and they do not include the right to holiday. Accordingly, contractual holiday entitlement only accrues during parental leave if the contract specifically provides for that. This judgment does not change this position however it makes it less likely that employers will provide that contractual right in the future.

People Power

People Power

With a rise in short term lets, ‘traditional’ commercial landlords are coming under increasing pressure to find ways to compete with the likes of WeWork, which lets space on shorter, more flexible terms.

There’s no denying the times they are a-changing for landlords and those who don’t embrace new technologies and changing workplace behaviours run the real risk of being left behind.

And quickly.

I was asked for my thoughts on this matter for regional property portal Place NW. You can read my opinions here.

If you need advice on any commercial landlord and tenant leasehold issues, please contact me on hannah.al-shaghana@slaterheelis.co.uk

 

Campaign Groups Call for Changes in Property Laws

Campaign Groups Call for Changes in Property Laws

Campaign groups claiming to represent the nation’s renters are challenging part of the Housing Act 1988, saying the right of a landlord to evict a tenant with no fault or without giving reason contravenes international law.

A further claim suggests the current law doesn’t protect tenants if the landlord fails to maintain a property in a standard that is fit for human consumption.

Both of these topics are covered in an article I produced for North West property news website Place NW. You can read the article in full here.

With the number of renters in the UK rising every year (it has been estimated one-third of millenials will rent for the whole of their lives) more and more people will be watching this one with interest.

Flying Into Trouble

Flying Into Trouble

Aerial video footage is becoming increasingly popular in marketing property schemes and developments.

However, the rules around where drones can fly and what they can and can’t film is an evolving area, especially in the post GDPR world and developments where residents are already in place.

If you are planning on using drone footage, or have recently captured some film, it is worth your while to familiarise yourself with some ground rules and methods of best practice.

I was asked recently to draft an article for Place NW which covers the GDPR implications of aerial filming, along with pointers on how developers can establish a lawful basis for capturing aerial footage.

You can read the full article here.

The Slater Heelis Property team can advise on any aspect of property marketing law and GDPR. Contact me on 0161 672 1417 or email richard.riley@slaterheelis.co.uk

 

Professional Game Match Officials Limited (PGMOL) –v- HMRC

Professional Game Match Officials Limited (PGMOL) –v- HMRC

The taxman have been shown a red card by football referees after they won a legal battle over a £584,000 penalty charge in a landmark case about the nature of employment.  HM Revenue and Customs’ position that most referees should be considered employees was challenged by the Professional Game Match Officials Limited (PGMOL), the body which represents football referees in England in a tribunal.  PGMOL successfully argued that a group of employees, some of who had officiated in high profile games, should have been treated as self-employed and are entitled to pay a lower rate of national insurance. 

The tribunal found that the relationship between the referees and PGMOL lacked two key features of employment: mutuality of obligation, and control.  PGMOL successfully argued that unlike the referees in the Premier League, those who officiate in lower league matches are not employees.  Many of the referees have day jobs and can turn down offers to oversee matches as and when they choose to do so.  The tribunal concluded that individual appointments to matches were engagements to perform the task for officiating at the match in question for a fee but not a contract of service. 

The decision has far reaching implications for workers in other fields, including media, medicine and professional services where rules imposed upon them by a regulator may previously have been interpreted as an indication they are employed.