A monthly checklist of new and pending laws, regulations and codes of practice that could have an impact on your business.
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Businesses that have not already done so should take action urgently to comply with new ‘cookie’ laws from 26 May 2012, that affect how their websites interact with visitors’ PCs, phones or other internet devices.
From May 2012, organisations must comply with new laws that ban them from using cookies to collect information about the visitors to their website without each visitor’s express consent. Cookies are pieces of text an organisation deposits on a person’s computer, mobile or smartphone when they visit the organisation’s website, containing information about that visitor and/or what they looked at during their visit. Most business websites deposit a cookie of some sort on a visitor’s computer while the visitor browses the site.
For example, many websites use cookies to store a note of the pages on the site the visitor looks at. The organisation can then tailor what the visitor sees next time he visits the site. Cookies also store visitor’s preferences – for example, when a user chooses how many search results they want to see when using Google to search the web, it’s a cookie that ensures they see the same number of results next time they use Google as well. Shopping sites use cookies to remember which items the customer has selected and carry them forward to their shopping-cart until it is time to pay for them. Cookies can also be used to authenticate the identity of a site’s visitors.
The old law allowed use of cookies but said website owners had to explain how they were using the data stored on the cookie, and give visitors the ability to opt out.
New laws from May 2012 mean it is unlawful, in most cases, to deposit a cookie on a visitor’s computer or other device without the visitor’s express consent.
There has been widespread concern that the new rules would drive visitors away from business websites. However, the ICO has updated its practical guide, Guidance on the rules on use of cookies and similar technologies, to help organisations see how best to collect visitor consent to use of cookies with minimum disruption to browsing.
Organisations that haven’t already done so should:
Operative date
Now
More information
Download the guidance from the ICO website
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The Government is consulting on whether the dismissal rules and associated Acas Code of Practice are too complicated, and whether to bring in a system allowing microbusinesses to dismiss employees without cause provided compensation is paid.
The call for evidence, ‘Call for Evidence on ‘Compensated No Fault Dismissal’ and the Acas Code of Practice on Discipline and Grievance’ is asking for views on whether dismissal law is too complex, and whether a system of no-fault compensated dismissals should be introduced for businesses with fewer than ten employees.
The closing date for submitting views is 8 June 2012.
Until 8 June 2012
Download the call for evidence from the BIS Publications website
Businesses and others serving court papers on a third party should ensure they are sending them to the address they honestly believe to be the recipient’s address, or risk service being judged ineffective.
A person who served court papers on a third party by sending them to the address he honestly believed to be the recipient’s address served them validly, even though the recipient had in fact moved.
A liquidator of a company ‘served’ court papers on a director of a limited company by sending them to the residential address he had filed at Companies House. In fact, the director no longer lived there and judgement in the dispute was given against him without his knowledge.
The court said that court documents are validly served if sent to the last known address of the intended recipient. The liquidator had no reason to believe the director might not live there, and there was no duty to investigate whether he did. Service would, however, have been ineffective if he had already known the director no longer lived at that address.
Employers should beware a recent case that highlights the problem of deciding when an employee alleging discrimination has done enough to shift the legal burden of proving that there has not been discrimination to the employer.
Equality law says that, if an employee alleging discrimination can establish sufficient facts to indicate there may have been discrimination, the legal burden shifts to the employer to explain and justify it.
The facts must show there was a ‘provision, criterion or practice’ (a ‘PCP’) that may have disadvantaged a protected group such as women, and that the particular employee was disadvantaged. The employer must then explain and justify the PCP by showing that it was a ‘proportionate means of achieving a legitimate aim’. If the employer can’t, it is assumed that the PCP is discriminatory.
In this case a Polish employee alleged that one of the reasons she was selected for redundancy was poor time-keeping. She claimed indirect sex discrimination, saying that any lateness coming into work was because she was a single mother with childcare commitments. But the Employment Tribunal decided that poor timekeeping was not one of the reasons for making her redundant, so there was no need for the employer to prove there had been no discrimination.
The employee appealed. She argued that, once she had shown there were facts from which it might be concluded that poor timekeeping had been taken into account, the Tribunal should have assumed that it was taken into account unless the employer could prove that it wasn’t.
The Employment Appeal Tribunal rejected that argument. It said that the burden of proof only switched to the employer after the employee had established facts showing all the elements of discrimination for the employer to justify and explain. She had failed to do so.
However, she succeeded in establishing racial discrimination. She had been told to appeal against her selection for redundancy ‘in her own tongue’ whilst none of the other (mostly non-British staff) had. This was so potentially inherently and directly discriminatory that it meant the burden of proof did shift to the employer, who had been unable to explain it.
Employers should take great care in this complex area, and ensure that they:
Businesses should ensure that their internet use policies prohibit employees from publishing potentially defamatory statements online, and that there is training and monitoring to ensure compliance. Following a recent case, individuals who post potentially defamatory allegations on Twitter or other networking websites may find they, or their employers, are liable to pay compensation, following a High Court ruling.
The chairman of the Indian Premier League cricket franchise, Mr Modi, made an allegation of match-fixing against former New Zealand cricket captain Chris Cairns on networking website Twitter.
Cairns said the allegation was totally untrue, damaged his 20-year good reputation and had affected his private life. He brought a defamation claim against Mr Modi – the first such case to be heard in England. Mr Modi failed to produce evidence to support his allegation and the High Court awarded Mr Cairns compensation of £90,000. It also ordered Mr Modi to pay Mr Cairns’ legal costs of £400,000.
The court was originally minded to award Mr Cairns £75,000 but increased the award to £90,000 because of the ‘particularly offensive’ approach of Mr Modi’s legal representatives, who frequently accused Mr Cairns of lying.
Had Mr Modi made the allegation as an employee, his employer could also have been liable for the defamatory Tweet unless it was able to show that he had made the post while on a ‘frolic of his own’, rather than in the course of his job. An internet use policy can help protect employers by making it clear which online activity by employees is prohibited - including posting potentially defamatory Tweets.
Following a recent case, employers should ensure that:
In this case, an employer’s assumption that a black employee’s complaint against a white manager would be racially motivated, despite there being no evidence of this, amounted to race discrimination, the Employment Appeal Tribunal ruled in a recent case.
A black employee had a meeting with a more senior manager after problems developed with his immediate manager over a two-year period. During the meeting the senior manager referred to the ‘racial problem’ between the employee and his manager.
The employee felt that this remark was evidence of an assumption by the senior manager that he was ‘playing the race card’. In fact, there was nothing in his complaint to make the senior manager think he was. He brought a claim for discrimination on grounds that the senior manager’s apparent assumption was discriminatory, because the senior manager would not have made the same assumption if the employee had been white and the manager black.
The Employment Appeal Tribunal agreed that the senior manager had applied a racial stereotype, and would not have made the same assumption if the complaint had been by a white employee against a black manager. It also found that the comment made was genuinely demeaning. Altogether, this amounted to discrimination because there had been less favourable treatment of the employee on racial grounds.
Employers still cannot rely on costs savings alone to justify age discrimination against an employee, despite recent Employment Appeal Tribunal decisions saying they can, the Court of Appeal has ruled.
Following this case, employers considering dismissing employees in circumstances that night amount to age discrimination must ensure there are more reasons for the discrimination than cost alone if they want to justify it as a proportionate means of achieving a legitimate aim.
A healthcare Trust cut short its usual consultation period in order to make an employee redundant before he reached 50, since he would otherwise be entitled to significant pension rights. He claimed age discrimination.
The law says that age discrimination is justified if the employer can show it is a proportionate means of achieving a legitimate aim. In the past, there have been legal decisions that say cost considerations on their own are not a sufficient justification for discrimination. There have to be other reasons that also justify it. This requirement for other reasons has been called the ‘costs plus’ approach.
However, the Employment Appeal Tribunal (EAT) in this case ruled that costs alone may sometimes be sufficient justification for age discrimination – for example, where the impact of the discrimination is insignificant but the cost of avoiding it would be huge. The EAT was influenced by the fact that the employee would have been dismissed before he was 50 anyway if there had not been unforeseen delays in the redundancy process, and therefore had no expectation that he would receive the enhanced pension benefits until the delays occurred. (The EAT also decided that costs alone were capable of justifying age discrimination in another case, Cherfi v G4S Security Services Ltd.)
On appeal, the Court of Appeal restated the rule that age discrimination still cannot usually be objectively justified on grounds of cost alone – which means the ‘cost plus’ approach still applies.
It did, however, find that there was an additional aim - a ‘plus’ over and above saving costs - for discriminating against the particular employee on grounds of his age, which was the aim of dismissing an employee who was redundant. It said that there was a genuine redundancy situation, and the aim of dismissing him was therefore a legitimate aim. It did not stop being a legitimate aim because the dismissal saved costs.
There is an argument that the discrimination was the truncation of the consultation period so that he did not receive the enhanced pension, and not the dismissal, which was going to happen anyway, but the basic principle that justifying age discrimination on costs alone is not usually enough was clearly stated by the Court.
Organisations using web agencies should ensure the agency enters into a written agreement in which it warrants that it will rigorously check ownership of intellectual property used to build the site, including copyright in images used, and indemnifies the organisation in any dispute over ownership of intellectual property.
A charity whose web agency used copyright images when building its website has had to pay the copyright owner £10,000 for copyright infringement, even though it genuinely believed the images were Crown copyright and could lawfully be used.
A charity’s web agency put images on the charity’s website thinking that they were Crown copyright. In fact, copyright in the images belonged to a photographer. The photographer took the charity to the Patents Court alleging copyright infringement.
The court decided that the charity was guilty of the infringement. It said, among other things:
However, it did think there was copyright – its mistake was to believe the Crown owned it.
Damages were awarded of £10,000, together with interest.
Property owners can now sign up to a pilot Land Registry anti-fraud scheme to stop sales, mortgages or other dealings with their property by fraudsters.
The scheme allows them to put a notice on their registered title at the Registry saying that their property cannot be sold, mortgaged or otherwise dealt with unless a solicitor or conveyancer certifies that the real property owner has signed the relevant legal documents.
The scheme is aimed at absentee owners – for example, where the owner is elderly and living in sheltered accommodation or a care home, or is a buy-to-let owner with tenants in their property. Absentee owners are particularly vulnerable to fraud because they do not live at the property and cannot easily monitor suspicious post received or other activity at the property. The scheme can also benefit owners who have no mortgage, who are attractive to fraudsters, who can raise significant sums if they manage to persuade a lender they are the owner, and can therefore mortgage the property to raise funds.
Initially, the scheme is a six-month pilot. It is free to absentee owners, and £50 for owner-occupiers or limited company property owners.
Property owners can check out the new scheme on the Land Registry website
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