The claimant in Goodlife Foods Ltd v Hall Fire Protection ... General Data Protection Regulation ... The Gender Pay Gap
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LexisNexis In-house NewsIN The months key commercial legal stories that could affect your business
May 2017 General Election > Corporate & Commercial >
Data Security > Employment >
Competition >
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General Election
Election 2017 - Implications of the early UK parliamentary general election On the 18th April, Prime Minister Theresa May announced her intention to hold a general election in the UK on the 8th June this year. Under the Fixed Term Parliaments Act 2011, the next election was not scheduled to take place until the 7th May 2020, but on the 19th April, MPs voted on a motion moved by the Prime Minister approving her proposal to bring this date forward. Reflecting on this unexpected political development, Charles Brasted, partner, and Andrew Eaton, associate, at Hogan Lovells International LLP, consider the requirements and potential implications of the early UK parliamentary election: Election 2017 – Implications of the early UK parliamentary general election
Corporate & Commercial Exclusion clause was validly incorporated and effective The claimant in Goodlife Foods Ltd v Hall Fire Protection Ltd [2017] EWHC 767 (TCC), [2017] All ER (D) 66 (Apr) was unsuccessful in arguing that an exclusion of liability clause in the defendant’s standard terms and conditions was unreasonable under the Unfair Contract Terms Act 1977 or otherwise not validly incorporated. It was also not an onerous or unusual clause that had to be reasonably brought to the claimant’s attention. Although the clause did purport to exclude tortious liability for personal injury and death, that part of the clause could be excised and the remainder would be valid to exclude liability for other losses. Further reading: Exclusion clause was validly incorporated and effective
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Supreme Court rules on contract interpretation –Textualism versus contextualism The Supreme Court has ruled in Wood (Respondent) v Capita Insurance Services Limited (Appellant) [2017] UKSC 24 on the correct approach to contractual interpretation. This case concerned the true construction of an indemnity clause in a sale and purchase agreement (SPA), a detailed and professionally drafted contract under which Capita purchased an insurance brokerage company from Mr Wood and two other sellers. The High Court endorsed Capita’s construction that the indemnity covered certain claims by Capita, but the Court of Appeal had overturned that decision. Capita appealed against the Court of Appeal’s order, arguing that it had fallen into error because it had been influenced by the respondent’s submission that the decision of the Supreme Court in Arnold v Britton [2015] UKSC 36 had “rowed back” from the guidance on contractual interpretation, which the Supreme Court gave in Rainy Sky SA v Kookmin Bank [2011] UKSC 50. Capita argued that this had caused the Court of Appeal to place too much emphasis on the words of the SPA and to give insufficient weight to the factual matrix. The Supreme Court unanimously dismissed Capita’s appeal. Further reading: Alert: Supreme Court rules on contract interpretation – Textualism versus contextualism Reconciling differences in the interpretation of contracts
Principles applicable in construing preconditions in commercial contracts Lynne Counsel, barrister at 9 Stone Chambers, considers the case of Astor Management AG (formerly known as MRI Holding AG) and another v Atalaya Mining plc (formerly known as Emed Mining Public Ltd) and others [2017] EWHC 425 (Comm) in News Analysis: Principles applicable in construing preconditions in commercial contracts. The case concerned the construction of terms in a commercial agreement as to whether conditions for repayment of deferred consideration were triggered. The relevant agreement provided that deferred consideration was payable when approval was obtained to restart mining operations and a senior debt facility was secured. It was held that the deferred consideration had not become payable because the facility had not been secured as the project was funded by other means. A further argument related to the defendants’ undertaking in the agreement
to use all reasonable endeavours to secure the senior debt facility. The court held that the all reasonable endeavours clause was valid but that the defendants were not in breach of it. The court rejected the defendants argument on the construction of a specific clause that the deferred consideration was not payable at all.
Data Security General Data Protection Regulation We’ve frequently reported on the General Data Protection Regulation (GDPR) over the last year. Due to be implemented in May 2018, it will have a big impact for most businesses. Recent developments include: • The UK government has issued a call for views on exemptions in the Regulation. This closes on the 10th May. • The ICO has asked for feedback concerning rules about profiling and automated decision-making. • The ICO has fined Flybe and Honda for sending emails to customers requesting them to confirm their marketing preferences. Ironically, the emails had been sent as part of a data cleanse exercise to prepare the businesses for the new regime.
See how this detailed GDPR planner with accompanying precedents can help you interpret and implement the ICO’s 12-step checklist. Access phase 2: GDPR Planner >
Employment Gender Pay Gap Reporting The Gender Pay Gap Regulations came into force on the 6th April and require large employers to publish gender pay differences by the 4th April 2018. The data must be published on each company’s website and to the UK government 2
website. The final guidance of ACAS and the Government Equalities Office is now available. Whilst many companies are fearful of the stark differences that this may expose, Virgin Money has already published pay gap data. This has highlighted a significant pay gap, but the announcement came with a positive message that it is implementing a bold plan to address the issues it has uncovered.
It is also noteworthy that Davis LJ gave a dissenting judgment in which he held that the new evidence produced by the claimant at the appeal hearing was “entirely unsatisfactory” and that in his view, in the circumstances, the decision to dismiss by the appeal panel was “within the range of reasonable responses” and also ‘proportionate and objectively justified’.
Further reading: LNB News 24/04/2017 138
Further reading: Guidance on dismissal of disabled employee for long-term sickness absence
Uncertainty in employment contracts In Newcastle Upon Tyne NHS Foundation Trust v Haywood [2017] EWCA Civ 153, the Court of Appeal dismissed an employer’s appeal and found that it had terminated the respondent employee’s contract on her fiftieth birthday and she would, therefore, be entitled to a higher pension than if it had terminated the contract before that birthday. Under her contract, the respondent had to be given 12 weeks’ notice of termination by the appellant. The Court of Appeal held at the 12 weeks commenced when the notice was actually communicated to the respondent. Further reading: Uncertainty in employment contracts
Guidance on dismissal of disabled employee for long-term sickness absence Guidance on the long-term sickness absence dismissal of a disabled employee in the context of claims for unfair dismissal and discrimination arising from a disability has been given by the Court of Appeal in the case of O’Brien v Bolton St Catherine’s Academy [2017] EWCA Civ 145. The judgment is a noteworthy example of a case involving a long-term sickness dismissal in which both unfair dismissal and discrimination arising from a disability were claimed. Underhill LJ offered his view on the two relevant statutory tests of reasonableness and proportionality. He commented that, in the context of dismissal for long-term sickness where the employee is disabled, although the language in which the two tests is expressed is different, it would be a pity if there was any ‘real distinction’ between them and there is no reason why different standards should apply.
Competition
Private actions for competition law breaches Private “class actions” relating to competition offences look set to be a regular part of UK litigation. In recent weeks, we have had the decision of the first class action application (more accurately, a Collective Proceedings Order). This case relates to a claim by an estimated 32,000 people for overpayments of up to £200 each on the purchase of mobility scooters because of price fixing offences. The case has been adjourned to allow the lead claimant to amend its claim. We are also expecting the decision on the second class action application on behalf of over 46 million UK consumers against MasterCard. On the 9th March the EU Damages Directive 2014/104/EU was implemented bringing with many additional “claimant-friendly” measures. Further reading: Maintaining a competitive edge – implementing the EU Damages Directive Implementing the EU Damages Directive in the UK
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