The European Commission has issued proposals to strengthen and simplify the existing data protection laws that apply across the European Union.  The intention is to boost Europe’s digital economy by reviving consumer confidence in their online privacy rights.  Introduction of a ‘one-stop shop’ for data protection is proposed to achieve that outcome by replacing the current fragmented and differing systems in each country.

As well as giving consumers greater uniformity of protection, the proposals will save business an estimated €2.3 billion a year in administrative costs.  While business will certainly welcome a standard approach across the EU, there will also be a concern to ensure that the desire to boost consumer confidence in online privacy rights does not detract from the efficient use of personal information for legitimate purposes.

The key reforms proposed include:

• A uniform set of rules across the whole EU. Removing legal uncertainty and inconsistency across Member States, volumes of paperwork for businesses and overcoming a disincentive and cost to expanding businesses into new areas of the Single Market;
• Companies will deal with a single national Data Protection Authority (DPA) in the EU Member State where they have their principal place of business, the DPA’s decisions will be binding across the EU area;
• Serious breaches, such as theft or accidental release of data, should be reported to the DPA within 24 hours (if feasible) and to individuals without undue delay; and
• Individuals to give explicit consent to data processing or reuse and they will have greater rights in terms of transferring personal data between service providers and deleting data which is no longer required

However, these proposals are only as good as the enforcement they receive (if they become law). DPAs will have stronger investigative and sanctioning powers, including the ability to fine up to €1m or 20% of global turnover of the company for breaches.

For companies which operate branches outside the EU, but contract with individuals within the Single Market, or process their personal details outside the EU, it is proposed that Binding Corporate Rules are introduced to ensure uniformity of protection, regardless of organisations’ internal arrangements.  BCR will be approved by one DPA only and considerably simplify the process.   

As with any EC legislative proposal, it will be years rather than months before the proposals are consulted upon, amended, voted upon and implemented.  However, the proposal does provide some hope that the regulatory burden on businesses trading across Europe may be eased somewhat in the future.

We will keep you updated with data protection developments, in the meantime if you would like professional advice about any of these matters please contact us at 01382 229222.

Dates: Tuesday 6th March to Thursday 8th March 2012

Format: A series of one-hour topical law seminars

Times: The first session each day will commence at 8.30am and the last session will conclude at 4.30pm (6pm on Thursday 8th March)

Venue: Dundee & Angus Chamber of Commerce, City Quay, Dundee

Cost: FREE*
(*Any booking cancelled with less than three full working days’ notice will be subject to a cancellation fee of £10+ VAT)

Seminar programme:

• Absence Management: Curing your sickness headaches
• Capability: Default retirement age
• Fire Safety
• Health & Safety: How safe are your premises?
• Is there still no such thing as a free lunch?: The Bribery Act 2011
• Latest Developments in Discrimination Law: Key cases explained
• Successful Debt Recovery Strategies
• Survive & Thrive in 2012
• Twitter and Facebook: Threat or opportunity?

Click here for seminar descriptions and dates and times.

The format allows you to attend the sessions that are most important to you and because each seminar will run twice over the course of Law Week, you have double the chance to get to the seminars you want. Law Week will conclude with a Panel Session to give you the chance to ask questions on topics and issues not covered in the individual seminars.

Law Week is open to DACC members and non-members. Places will be offered on a first-come, first-served basis and if demand is high, may be limited to one person per organisation. So, don’t miss this unique opportunity to get all of your law questions answered in one place at one time.

Register here and make sure of your place.

From 1 January 2012, charitable companies will be able to convert to SCIO joining the various new charities on the register which have had the right to incorporate as SCIOs since 1 April 2011.  When we last checked, there were 58 SCIOs registered at OSCR, ranging from citizen’s advice bureaus to after school care centres to neighbourhood watch groups.  So what makes the SCIO an attractive vehicle to new and existing charities? 

For new charities, the SCIO vehicle, like the charitable company, brings separate legal personality for the organisation.  That means that the charity can hold property, enter into contracts, sue, be sued and employ staff in its own name rather than in the name of its committee members or trustees.  Existing companies may choose to convert to SCIO to be subject to the lighter regulatory regime.  However, all charities are different and it is important for each charity or proposed charity to consider its individual circumstances in order to decide upon the most appropriate legal status.

Something worth noting is that a SCIO’s members are under a duty to try to ensure that the organisation acts in a manner which is consistent with its purposes.  Whilst company directors and charity trustees are under similar duties to their organisations, their ordinary members are not.  An active membership may be a reason to choose to incorporate as a SCIO.  Other reasons include where the organisation has contractual or employment commitments and where the charity trustees require protection from personal liability. 

If you have any questions or would like further advice on SCIOs, please contact Sarah Winter in the Charities Team on 01382 229222.

A recent decision of the Supreme Court has offered some guidance on the issue of holiday entitlement for workers with atypical working patterns.  This case related to a group of offshore workers in the oil and gas industry.  The workers generally followed a pattern of working two weeks offshore (where they would carry out twelve hour shifts followed by a twelve hour rest) and two weeks onshore when they were not contractually obliged to carry out work but might attend occasional appraisals or training.

The workers raised claims that they had been denied their statutory entitlement to 4 weeks’ annual leave (the cases were raised before the statutory entitlement increased to 5.6 weeks). The employer resisted the claims on the basis that the 26 or more weeks the claimants spent onshore on “field breaks” was more than sufficient to encompass their statutory annual leave entitlement.  The workers argued that the proper interpretation of ‘annual leave’ meant release from what would have been an obligation to work, and that as a result they ought to have been permitted to take annual leave during periods when they would have been offshore.

The initial claims were successful at the Employment Tribunal.  However, these were overturned by the Employment Appeal Tribunal (EAT). The Court of Session did not interfere with the decision of the EAT, prompting the workers to appeal the case further to the Supreme Court.  The Supreme Court agreed with the employers and refused the appeals.  The reasoning given by Lord Hope was that under the European legislation providing for entitlement to rest periods, ‘rest period’ simply means any period which is not working time, irrespective of where the worker is and what he is doing.  Accordingly, the rest periods which were onshore field breaks fell within this category and the workers were not entitled to take their annual leave entitlement as time off from offshore work. 

The decision has practical implications for other workers with irregular patterns of work.  For example, teachers who are allowed holidays which match the school holidays could not insist on having part of their annual leave during term time (unless their contract of employment provided for additional periods of contractual annual leave).

The length of the qualifying period for claiming unfair dismissal has been a political pendulum since the right to claim was introduced in 1971. It has been two years before, and as little as six months. While the increase to two years will reduce the number of unfair dismissal claims employers should arguably not take as long as two years to identify underperforming employees.

The proposed introduction of fees for tribunal claimants from 2013 which the Chancellor announced last month is not entirely consistent with the concept of easy access to justice which the employment tribunal system was originally intended to provide. It would be an easy step for this to be extended to fees for employers who have to resist tribunal claims, and so employers should perhaps be cautious in welcoming this. There must also be a concern about whether the system of fees would be cost effective to manage.

The idea of early conciliation requiring all potential claimants to submit their claims to ACAS before coming to an employment tribunal is fine in theory but it will only work effectively if ACAS have adequate resources to deal with potential claims promptly and efficiently.

The proposal for “protected conversations” allowing employers to have frank discussions about poor performance with employees without the fear that they can be used as evidence in an employment tribunal seems an unnecessary complication. Employers should not be afraid to tell employees when they are underperforming and it is not clear why that conversation needs to be “protected”.

The call for evidence on the length of time required for consultation on proposed redundancies (with a view to reducing the period from 90 days in some cases to 30 days) feels like shutting the stable door after the horse has bolted, unless of course the government is taking a very pessimistic view on future growth and employment prospects.

The government are right to recognise that the best way to reduce the burden on the employment tribunal system is to resolve disputes within the workplace. It remains to be seen whether their proposals to encourage workplace mediation and to simplify and promote the use of compromise agreements will a achieve this.

Whilst the Diamond Jubilee will undoubtedly be a notable celebration across the country, employers and employees will likely have one burning question about whether or not the extra holiday is applicable to them.  We only have to cast our minds back to April 2011 when the same question was a hot topic surrounding the famous Royal Wedding.     

Bank holiday?

A bank holiday is one which is stipulated by legislation. The Banking and Financial Dealings Act 1971 governs bank holidays within the UK, and the Scotland Act 1998 assigns to the Scottish Ministers the responsibility for setting bank holidays. There are currently eight permanent bank holidays.

Public holiday?

Public holidays are controlled by individual local authorities. Generally, these are set in cooperation with local businesses and are aimed at preserving local history and traditions.  For example, in 2011 Dundee marked Victoria Day on 30^th May and Arbroath marked St Tammas day on 26^th July. These designated public holidays are merely recommendations: employers are under no obligation to close their businesses on these days.

Am I entitled to a holiday?

Employees are not automatically entitled to take a holiday on a bank or public holiday.  Rather, an employee must look to their contract of employment to establish the basis of their entitlement. An employee entitled to 20 days plus bank holidays would quite rightly expect the day off, as the Diamond Jubilee is indeed a bank holiday.

A more common example might be a contract entitling an employee to 24 days holiday in addition to six paid bank / public holidays. Such contracts usually go on to specify which six days will be given as holiday (Christmas Day, New Years Day and such like)! In that example, the employee therefore receives 30 days paid annual leave. As such, the employer would be compliant with the Working Time Regulations’ prescribed minimum of 28 days holiday.  The employee has no specific entitlement to take the Diamond Jubilee off as it is not one of the public holidays listed within the contract.

In relation to the Diamond Jubilee bank holiday, an employee in such a position would simply apply for a day’s holiday in the usual way, and an employer will then operate their usual procedures in deciding whether or not to grant the request. Employers must adopt a consistent approach to bank /public holidays. If employees have routinely been granted leave on such days in the past it may be that there is an established ‘custom and practice’ within the workplace. This could potentially allow employees to claim a holiday for the Diamond Jubilee.

The Practical Aspect

There is nothing intrinsically special about the Diamond Jubilee from an employment law perspective. Most employees are unlikely to be entitled to the day off, and will have to apply in the usual fashion if they wish to take the holiday.

If there is dubiety about an employee’s contractual entitlement, it may be that employers will choose to grant requests as a gesture of good will in order to maintain good employee relations. If this is done, employers should move quickly to tighten up their statement of terms and conditions in order to prevent a ‘custom and practice’ forming whereby employees expect to have an automatic entitlement to take future bank and public holidays off.

OSCR in Scotland and the Charities Commission in England and Wales have for some time been looking into whether private schools deserve charitable status.  OSCR has already issued directions to private schools such as St. Leonards in St.Andrews and Merchistons in Edinburgh that they need to widen their public benefit.  More directions have been issued south of the border.

In England and Wales, the Independent Schools Council, representing 1,260 schools, has taken the Charities Commissioner to court challenging the way that it applies the public benefit test.  A tribunal decision of 14 October 2011 has confirmed that there is too much emphasis on bursaries for poorer children and there is a need to examine the wider charitable work that schools are involved in.   

New guidance is expected shortly as to whether this approach will be followed in Scotland or whether the focus will remain on public access to school places.

So what is the outcome for licensees?  We will have to wait to be sure.  The European Court of Justice has decided that it is contrary to EU law to sell Premier League matches on a country-by-country basis and any prohibition on the use of foreign decoder cards cannot be justified on the basis of protecting intellectual property rights.  However, the issue is far from straightforward.  For a start, the ECJ’s judgment has still to be interpreted by the English High Court, which had referred the matter to the ECJ for guidance.  This is likely to take some time.

On the subject of copyright, whilst the court held that live football matches are not works that can enjoy copyright protection, component parts of the overall broadcast – such as theme tunes, graphics and highlights of previous games – are protected.  As such, these add-ons cannot be shown without the consent of the Premier League.  If these protected elements are present, it is certainly not safe for you to broadcast Premier League matches other than through subscriptions with Sky or ESPN. 

The general consensus is that the Premier League will ultimately seek to sell its rights on a pan-European basis and so many question whether pubs will see a reduction in prices going forward.  What is clear is that the ramifications of the decision are likely to extend well beyond the world of football – films and TV programmes are generally sold on a territorial basis and the consequences could be huge. 

On a commercial level, the questions you need to ask yourself at present are:–

1. Am I making money when I provide satellite sports? 

If the answer is “No”, as it often is, you need to then ask yourself:

1. Could I be carrying out other activities or taking any action to better boost the bottom line?

In many cases, the answer is “Yes”.

There are a number of ways to make your pub work better – service and product training for staff to make your premises friendly and welcoming, selling high quality products, refreshing the premises with a paint job, linking with other businesses in your locality to provide business synergy.

An example to boost your business may be to invite the wine or whisky merchant to carry out tastings in your place.  Or, if you have no kitchen, perhaps you could link with a non-licensed cafe or carry out premises and let their customers eat inside – they will soon become your customers and they will   almost certainly buy a drink or two.  We Scots are generally too polite not to!

If you would like to talk to our business boosting team here at Blackadders, please contact:

Janet Hood, our Accredited Licensing Specialist, at janet.hood@blackadders.co.uk or by phone on 0771 888 2837 or 01382 342270; or

Kirk Dailly, a member of our IP/Technology Group, at kirk.dailly@blackadders.co.uk or by phone on 01382 342453.