Legal
15
GIVING IT “BOTH BARRELS” IN 2022 SO here we are… 2021 is behind us and the new challenges of 2022 lie ahead. Congratulations, by the way, if you managed to get a turkey and trimmings before the (undeclared) lockdown. Well done too, if you managed to sneak in a Christmas gathering before the proclamations of “prioritising social contact” became overwhelming. Whether you managed to attend a shoot, a panto, get a table in a restaurant, exchange presents or simply wait in the booster queue, doing just one or two things “sociable” before the curtains closed on the year was probably as good as it got. What’s in store for 2022? Employment law is set to be a particularly active area and a good shake-up is planned via the Employment Bill. Key proposals under this draft legislation include the establishment of a single enforcement body for employment rights; an extension of protections against redundancy for pregnant women and new parents; changes to flexible working rights; neonatal leave and pay (12 weeks); and unpaid carer’s leave (1 week). Timings for this legislation are “open”, so much will depend on the parliamentary time available before everything is eventually pushed through. On 24 August 2021, the Government declared a one-year extension to the deadline for businesses to transition from CE product marks to using the new UK Conformity Assessed (UKCA) marking. CE marking is a manufacturer’s confirmation that its products meet the relevant safety requirements. However, after Brexit, the UKCA became the conformity assessment for goods placed on the market in Great Britain. CE product marks can now be used until 1 January 2023, which means that businesses will need to start the transition during 2022 and align themselves with the new markings in order to ensure product compliance.
Rent arbitration On 22 March the new rent arbitration scheme is expected to come into force. Introduced by the Commercial Rent (Coronavirus) Bill, announced on 9 November 2021, the new legislation proposes a time-limited arbitration scheme which landlords and tenants can utilise if they have been unable to reach an agreement over rent arrears independently. Arbitrators are expected to make awards which will preserve and, if possible, restore the viability of a tenant’s business as long as that is consistent with preserving the landlord’s solvency. Although one cannot help but think this new system is skewed more in favour of the tenant, in such difficult times it is perhaps more important that some form of system, however imperfect it may seem to some, is introduced to clear the backlog of disputes and delays in the landlord and tenant sector. It will apply only to business tenancies and will not apply where the nature of the occupation is pursuant to a licence or a tenancy at will. It will cover disputes regarding annual rent, service charge, interest on unpaid amounts, VAT and insurance rent. Provided certain conditions apply, amounts due under the above categories will be ring-fenced and protected against other kinds of enforcement by landlords.
Image by al_si from Pixabay
With another long year behind us, our legal expert Stuart Farr looks forward to the legislative timetable for a locked-down 2022
References to arbitration will include a formal proposal (by either party) with supporting evidence. The receiving party will have 14 days to respond, after which both parties are given 28 days to submit final proposals. At that point, the proposals exchanged are considered by the arbitrator, who will make a determination either following an oral hearing or on paper. The scheme provides for costs to be awarded by the arbitrator and a level of discretion is permitted to provide for those who have either frustrated the process or acted unreasonably. Ongoing throughout 2022 will be the continuing emphasis on data protection and the strenuous ef-
the internet looking for technical infringements embedded in cookie notices on websites and then using them to threaten claims against the organisations responsible for them. The law regarding the use of cookies and cookie banners is enshrined in the Privacy and Electronic Communications (EC Directive) Regulations 2003. Organisations that use cookies on their websites must provide users with sufficient information about them and obtain consent before setting up cookies on a device. Such consent must meet the requirements of the GDPR and must be specific, informed and freely given.
“Organisations that use cookies
on their websites must provide sufficient information about them ” forts across some quarters to combat fraud and cyber-crime. The pandemic has created a perfect storm for fraudsters, and while benefit fraud is widely publicised because of its impact on public finances, fraud in a commercial setting still remains rife. Beware, however, that the General Data Protection Regulation (GDPR) system, which is designed to protect individuals’ data and privacy rights, is also being used to leverage financial advantages. Socalled “cookie litigation” is on the increase and it has been reported that there are groups who are scouring
Companies are now receiving letters of claim which allege their cookies infringe these requirements and so make demands of compensation – typically in the order of £500 to £1,000. However, even if there has been a technical infringement, it is often not the case that cookies which have been set up automatically (inadvertently or otherwise) have actually captured any personal data. Nor, more often, can the alleged claimant properly demonstrate there has been any distress or damage caused by the presence of the cookie. Indeed, the reports suggest that
claimants who are threatening claims are actively seeking out infringements and so are not “victims” in the real sense.
Be vigilant The best way to avoid receiving letters of claim on these issues is to be vigilant in ensuring that any cookies you operate on your websites are properly constituted and comply with the rules. If you do receive a claim, I strongly suggest you seek advice on it immediately. Do not be tempted to pay unless or until you have obtained advice because these claims are set at a nuisance value level in order to encourage settlement without any fuss. While it may be the case there has been a technical breach, that is far removed from the prospect of an entitlement to compensation on the part of the claimant. As it stands, e-privacy laws are currently being reviewed and some changes may follow in 2022 in any event. Finally, many of you will already be aware of the recent updates made to the Firearms Licensing Guide and the statutory guidance which was released in November 2021. In addition, the government’s proposed ban on the import of hunting trophies (published in December 2021) will most likely hit the statute books in 2022. The Ivory Act will also come into force. Undoubtedly, there will be mixed feelings about some of these developments and it remains to be seen how these developments will properly fit with the government’s claimed ambition to become a global leader in conservation and animal welfare. Further announcements on that front are expected throughout the year. GTN
