Being an in house lawyer isn’t just about the law – perhaps it never has been. Every six months at our in house lawyer sessions we give practical training on: - what the law means for you (personally) and for your business - tips on what to incorporate into your next contract, your next discussion with the HR department, or your next board meeting. We’ll also be covering the black letter law: - employment update - the end of tribunal fees and spying on job applicants - commercial and data protection law - changes in contract law and in particular how to get your contracts in shape for the General Data Protection Regulation (GDPR) – the wording, the principles and the practice - reputation law and practice – in the event of a cyber-attack, fire, fraud, death or scandal – how do you manage the media frenzy? Having advised on a range of these matters we’ll be looking at the legal and practical issues with managing the media and we'll also be joined by an expert PR consultant.

1. In house lawyers’ forum
September 2017

2. Employment update
In House Lawyers’ Forum – September 2017

3. Spying on job applicants

4. Spying on job applicants
• Social media
• “Right to work”
• Criminal background checks
• Financial checks
• Recent case law on monitoring employees

5. Social Media and the Internet
0
10
20
30
40
50
60
70
80
90
100
16-24 25-34 35-44 45-54 55-64 65+
Social networking usage by age group, 2017, Great Britain
Social networking (eg Facebook or Twitter)
(%)
Source: ONS Internet access- households and individuals: 2017

6. Social Media and the Internet

7. Social Media and the Internet
• What employers look out for – the 2017 YouGov
survey asked:
“what, if any, social media posts would put an
employer off hiring a candidate?”

8. 75% - aggressive and offensive
language

9. 71% - references to drug use

10. 56% - bad spelling and grammar

11. 47% - drunken photos

12. 29% - political views/activities

13. 29% - general oversharing of
content

14. 26% - vanity (i.e. too many
selfies)

15. Social Media and the Internet
So spying on applicants is
prevalent, but is it legal?

16. Social Media and the Internet
Data protection
• No specific legislation
• Information Commissioner’s Employment Practice Code:
– Only vet where there are particular and significant
risks
– Vet at the latest stage possible
– Inform candidates of vetting early in process
– Only vet for specific information
– Do not rely on unreliable sources
• Subject access request

17. Social Media and the Internet
Discrimination
• Duty not to discriminate on the basis of a protected
characteristic during recruitment process
• Protected characteristics – age, disability, gender
reassignment, marriage and civil partnership,
pregnancy and maternity, race, religion or belief, sex,
sexual orientation
• Discrimination can be direct or indirect
• Risk of damage to reputation – “no smoke without fire”

18. Right to work
• Employers are under a legal duty to ensure that a
candidate is legally allowed to work in the UK
• Documents such as passports and working visas
must be checked and copied prior to employment
beginning
• Sanctions for non-compliance
• Reputational damage – see Byron Burger

19. Criminal background checks
• Voluntary disclosure – no express prohibition BUT
disclosure only mandatory in certain circumstances
• Disclosure and Barring Service – only for certain job
roles and certain employers
• Can an employer refuse an applicant because of a
criminal record? It depends

20. Financial Checks
• Employers are entitled to conduct a financial check
on an applicant provided they have the applicant’s
permission.
• Financial checks are mandatory in some sectors
• The credit report will show:
– Bankruptcy details
– CCJ details
• It will NOT show a “credit score” used by lenders

21. Vetting candidates
What precautions can employers take?
• Verify all information obtained from vetting before
relying on it
• Vet at the latest stage possible
• Inform candidates that checks will take place
• Keep detailed records of why a candidate was
unsuccessful
• Only use when necessary and there is no alternative
• Include relevant wording in your recruitment and social
media policies

22. Vetting candidates
• Offer made but vetting checks reveals a candidate
unsuitable…?
– Be upfront with the candidate
– Allow them a right of reply
– Document EVERYTHING
– Unfair dismissal?
– Before or after acceptance?

23. The internet – Human Rights?
• Recent ECHR decision concerning employer’s right
to snoop on employee’s communications
• Ruled that Article 8 right to a private life had been
breached
• Not directly applicable to job applicants BUT
signals a trend towards privacy

24. Tribunal Fees update
• Tribunal fees ruled unlawful from the outset by
Supreme Court
• Govt will repay £27 million in fees previously paid
• The future – we don’t know
– Reintroduction of fees?
– Opening the floodgates

25. What next for employers?
• Influx of claims
• Reimbursement of fees made by employers?
• Risk of previous claims being re-opened
• Watch this space

26. Any questions?
James Tait
E: James.Tait@brownejacobson.com
T: +44 (0)121 237 3999
Kerren Daly
E: Kerren.Daly@brownejacobson.com
T: +44 (0)330 045 2115
Raymond Silverstein
E: Raymond.Silverstein@brownejacobson.com
T: +44 (0)20 7337 1021

27. Essential HR and employment law
support for your growing business
HR Core is a service designed for
businesses that do not have any or
limited HR support and provides easy
access to a dedicated team of CIPD
qualified HR professionals, supported
by our expert team of employment
lawyers – all for a fixed annual fee.
To find out more please indicate your
interest on our feedback forms and a
member of the team will follow up
with you.

28. Expert support for HR professionals,
all for a fixed fee
Our HR Expert and HR Options products
provide a sounding board and additional
capacity for in-house HR professionals.
We provide a fixed fee service, based on
what you need, so you have cost
certainty and you get exactly what you
want.
To find out more please indicate your
interest on our feedback forms and a
member of the team will follow up with
you.

29. Commercial update
Richard Nicholas

30. Areas to look at
• Contract creation
• GDPR – getting your contracts ready
• Obligations upon data processors

31. Quick advert…
In house lawyer “checker” Product
- Free second opinion/expert view/check a point
– Approx. 20 minutes on the telephone
- Equivalent to seeing a specialist at their desk
- Exclusively for in-house lawyers
Terms and conditions apply ☺

32. Intention to create legal relations
Blue V Ashley

33. So What?
- You can indeed:
- Make a binding contract
- In a pub
- Whilst drunk
- Involving huge sums of money
..But it needs to be clear and possible before you can
let your wife/husband rely on it

34. GDPR – effect on contracts?
• Controllers will need to ask more of processors
 Currently - “Written contract” + typically
(a) act on instructions of controller (+don’t share)
(b) keep secure (TOMs)
• New obligations upon Data Processors
 Currently no direct statutory obligations
 Under GDPR - Fine of up to 2% WWT

35. GDPR – Data Controllers
Agreement must include:
- Subject matter & duration of the processing
- Nature and purpose of the processing
- Type of data and category of data subject
- Obligations and rights of the data controller
+
- The specific obligations in Article 28 GDPR

36. GDPR – Data Controller
Art 28: for example:
- Documented instructions (& no other purpose)
- Take T&O measures to enable DC to respond to rights*
- No sub-processing w/o consent + same terms
- People accessing – obligation of confidentiality
- Return or delete data (choice of DC)
- Make available all info necessary to demonstrate
compliance with these obligations & allow audits

37. GDPR – Data Controller
Non-essential:
- Want DP to use prescribed form? (ROPA)
- Time limits for notifications (DC has 72 hours from
awareness for security breach – DP to monitor)
- Document retention policy vs right to be forgotten
- How deal with the media?
- Remind DP that this doesn’t relieve them of your
obligations

38. So what?
• Data controllers will need to pass more on in their
contract (under the regulation)
• What else might you want to pass on?
• Some (especially) cloud contracts are simply not
acceptable – will need to change.

39. GDPR – Data Processor obligations
• C ontract (Art 28)
• R ecords of processing Activity (Art 30.2)
• A ssist with SARs/ RTBF/Authorities (Art 28/31)
• P rotect (Art. 32)
• N otify DC of breaches W/o undue delay (Art. 33)
• O fficer (DPO – Art. 37)
• W here are you? – rep in EU if outside (Art 27)

40. So What?
GDPR – Big subject - law, but also practicalities
- Contract will need more detail
- Processors will need to follow the seven
“CRAPNOW”TM obligations
Contract
If your employer offers you a massive,
unwarranted pay rise... get your pen out!

41. So What?
Action:
From answering questions on contracts
in the negotiation or from the pub – you’ll be
glad you put “Checker” on your form…

42. Contact us…
Richard Nicholas
E: Richard.Nicholas@brownejacobson.com
T: +44 (0)121 237 3992

43. Social Media and Take Downs
.
What you need to know…
Nicola Hill, Commercial/IP Associate

44. Agenda
• Introduction
• Common issues faced by businesses on social media
• What action can be taken?
• Issues to watch out for
• How we can help

45. Social Media Platforms
• Social media provides individuals and businesses with an invaluable
opportunity to promote their brand and values to a global audience.
• Such platforms include:
- Facebook
- Instagram
- Twitter
- YouTube
- Snapchat
- LinkedIn

46. The use of social media has escalated dramatically and all types of businesses
now have a broad social media presence.

47. The increase of social media use has also increased the opportunity for
infringement, abuse and misuse.

48. Some Common Issues faced by
businesses on Social Media
• Social media handle squatters;
• Individual social media users registering usernames that incorporate your
trademark;
• Infringers or unauthorized distributors using your logos and trademarks on
their social media advertising;
• Illegal use/ modification of your copyright works e.g. ad campaign videos
• Defamatory comments about companies/individuals;
• Users posting video footage which give a negative impression of your
company/employees – negative PR implications.

49. What Action Can Be Taken?
• Contact the infringer directly demanding take down if
contact details available and it is appropriate in the
circumstances;
• For defamatory comments about the business, website
operators can be pursued for the poster’s information
or take down of the content on their site pursuant to
Section 5 Defamation Act.

50. • If user is anonymous, head to the Terms of Use
– most social media sites expressly prohibit IP
infringement and other forms of abuse in their
terms of use policies;
• Many provide simple online complaint forms
that brand owners can complete (including
Facebook, Twitter, Instagram, YouTube,
Snapchat and LinkedIn).

51. Example:
• Facebook allows users to file an online complaint regarding
photos, videos, wall posts, notes, shares or files using the
Help Centre.
• Information required for an IP infringement complaint
includes:
- contact information;
- your company name and a link to your online presence;
- your trade mark/copyright/design information; and
- details of the content you want to report.

52. Some Issues To Watch Out For
• Personal use of a mark not amounting to trade
mark use;
• Lack of personal contact with social media sites –
frame your complaint properly first time;
• Registering social handle once the infringing page
has been removed;
• Risk of inadvertently infringing international marks.

53. Our Top Tips
Check availability of and obtain social media handles
for new brand names early;
Ensure your key brand names/logos are registered as
trade marks – this will assist with online enforcement;
Carefully consider pros and cons of approaching the
user directly;
If you make a take-down request, attach a formal
letter to your social media complaint setting out the
full legal basis for your complaint.

54. How Can we Help
• Provide international advice in relation to new
brand names/logos;
• Register brand names/logos as trade marks;
• Provide advice as to whether a social media user is
committing an infringement/defamation or other
illegal online use pursuant to current legislation;
• Draft and submit social media take down requests.

55. Contact us…
Nicola Hill
E: Nicola.Hill@brownejacobson.com
T: +44 (0)115 976 6535

69. In house lawyers’ forum
A few last words…

70. All information correct at time of production.
The information and opinions expressed within this
document are no substitute for full legal advice. It is for
guidance only and illustrates the law as at the published
date. If in doubt, please telephone us on 0370 270 6000.
© Browne Jacobson LLP 2017 – The information contained
within this document is and shall remain the property of
Browne Jacobson. This document may not be reproduced
without the prior consent of Browne Jacobson.