Welcome to FSP’s latest In-house Insights providing you with bite sized information to help support you in your role. We aim to provide you with the best of our own in-house tailored content as well as highlighted other useful resources. In this issue we discuss:
- the SRA’s warning on the use of NDAs;
- the ICO’s recent reprimand letters;
- technology as a cure for capacity issues;
- new guidance on how to remain independent and SRA compliant;
- the Home Office cracking down on immigration sponsor compliance; and
- a new duty on employers to proactively prevent sexual harassment at work.
NDAs have been a hot topic with regards to their unethical use as ‘gagging orders’ (see the government’s press release, here). The SRA recently published a warning notice here on how NDAs are used.
The core points being that the warning is aimed at all NDAs (even those used in an employment context) and applies even if all parties are legally represented. Some key concerns are the improper use of NDAs as a means of preventing co-operation with criminal investigations, or disclosures related to public interest (under the Public Interest Disclosure Act). The SRA is asking everyone to: consider carefully whether an NDA should be used in the first place, give appropriate training to those dealing with NDAs, not rely on inappropriate old template NDAs, push back on unreasonable time limits for agreement, and report any concerns about the use of NDAs to the SRA. Failure to comply with the warning notice could lead to SRA disciplinary sanctions and accordingly it should be considered carefully by all in-house counsel.
The ICO has publicly reprimanded Sky Betting and Gaming here. Over the last few years the ICO has increased its use of “reprimands” which are letters to organisations to state how they have not complied with the GDPR. The letters are published on the ICO website and include a list of reasons for the ICO making the reprimand and the recommended actions for the organisation. It’s worth noting that a reprimand doesn’t mean the organisation has to do or pay anything, but they act as more of a deterrent. Reprimands can be a risk to reputation and resources, and in extreme circumstances can open up the floodgates to potential claims from data subjects that have now been put on notice! In this recent reprimand, Sky Betting and Gaming have been found to use third-party marketing cookies prior to getting consent from individuals. A good reminder that the wording and timing of the user’s consent are significant factors to ensure GDPR compliance, and not to mention to avoid getting into (public!) trouble with the regulator.
The age-old tale of having too much work but not enough capacity is ringing true now more than ever. Any previous thoughts that hybrid and flexible working may produce space and cost saving opportunities, enabling companies to hire in more help, have since been dashed in the wake of flatlining internal budgets. One possible solution suggested by the Law Gazette here is whether automated technology tools like e-billing software and workflow automation could provide the answer. The article notes that some believe that investment in technology at this stage will reap rewards further down the line, but notes the dichotomy that this requires substantial investment now to reap those rewards (and if substantial investment was available then this issue would unlikely have arisen!). If IT investment is a possibility then the focus of the solution, according to a Lexis Nexis survey here, seems to be using technology to avoid repetitive tasks, or discuss whether a fixed-fee is a possibility when using external advisors. Do get in touch with us at: [email protected] if you wish to have a no-charge, no-obligation discussion on the discounted fees we can offer you for retainer, secondment or fixed-fee arrangements.
The SRA has provided some well needed (still currently draft) guidance on reporting concerns about wrongdoing when working in-house here. Some of the case studies on which the guidance was based include: a suspicion of bribery; anti-money laundering concerns; and a governing board rejecting in-house advice and instead deciding to act illegally. Do any of these sound familiar? Hopefully not, but in any event, the guidance walks you through the steps to take to ensure that you are adequately protected. These include guidance on reporting concerns to your organisation, what to do when wrongdoing persists, and making reports externally.
How would you (or your employer!) feel if several of your employees suddenly had to leave your business overnight, simply due to an oversight of not keeping adequate records? That’s what could happen to sponsor businesses who are found to have fallen short of their reporting and record-keeping obligations. If your business sponsors migrant workers then now is the time (more than ever!) to make sure you are on top of your reporting, record-keeping and employment law obligations. The Home Office have announced that they will be increasing their focus on preventing illegal working and ensuring sponsor compliance. Sponsors should expect a sharp rise in compliance visits and licence revocations. We explain in our article here how you may need to audit processes so that you can comply with sponsor licence obligations such as record-keeping, carry out Right to Work checks in line with Home Office guidance, and make sure your processes are compliant with all relevant UK employment law. In addition to the sponsor obligations, all employers must maintain compliance with the right to work legislation, particularly with the recent increase in fines of up to £60,000 per worker for non-compliance, read more about it here.
From this month, the provisions of the Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force, placing an obligation on employers to proactively take ‘reasonable steps’ to prevent sexual harassment in the workplace. Failure to demonstrate compliance with these higher thresholds are paired with a potential damages payment increase of 25%. We discuss what employers need to address in our recorded webinar here.
The new 8-step guide to preventing sexual harassment published by the Equality and Human Rights Commission in September makes it clear that undertaking a risk assessment for your business is crucial to ensuring compliance. We have developed a range of fixed-fee services (including an audit tool for £500 plus VAT) that is designed to help employers comply with their new duty – full details can be found here.
