The document provides a summary of a session for in-house lawyers on various employment law topics: 1. It discusses recent employment status cases and reforms to the "gig economy". 2. It outlines the implications of IR35 legislation for determining employment status and tax obligations for contractors working in the public and private sectors. 3. It addresses how employers can protect their reputation by having clear policies on social media use and activities outside of work, and ensuring any disciplinary actions are justified.

1. September 2018
In house lawyers
forum
Manchester

2. September 2018
In-house lawyers’ forum

3. Employment law update
Raymond Silverstein

4. Today’s session
1. Employment status
2. IR35
3. Protecting an employer’s reputation

5. Employment status

6. Employment status
- Distinction between “employee”, “worker” and
“self-employed” breaking down
- Why does it matter?
- Focus on the “gig” economy

7. Pimlico Plumbers Limited v Gary Smith 2018
(Supreme Court)
— Supreme Court held that Mr Smith who worked under a
contract describing him as an “independent contractor”
was in fact a worker
— Use of “you” and “your” indicated personal performance

8. Good Work Plan a Reality?
— The Government published a response to the Taylor
Review in February 2018
— The Government announced recently that reforms have
been put on hold until 2019
— Concerns have been raised that this Good Work Plan has
been put at risk due to IR35…

9. IR35

10. IR35 Overview
— Legislation designed to tackle tax avoidance
— Applies to Contractors who provide their services through
the use of Personal Service Companies and relevant
partnerships

11. IR35 and the Public Sector
— Responsibility for determining deemed employment
status falls to the public sector body
— Relevant tax and National Insurance may be deducted
from source

12. IR35 and the Private Sector
— Determining employee status is the responsibility of the
contractor
— From 18 May – 10 August 2018 HM Revenue & Customs
consulted on “Off-payroll working in the private sector”

13. Reducing the risk of IR35 applying
— Align contract and reality
— Use HMRC’s online tool to check employment status for
tax at https://www.tax.service.gov.uk/check-
employment-status-for-tax/setup

14. Employer’s Reputation

15. Protecting your Reputation
— “For individuals and organisations alike, a reputation is
far easier to destroy than it is to build.”
— Risks to reputation include data protection, cyber
security, social media posts and employees’ actions
outside of work

16. Social Media Risk
— Gibbins v British Council ET Case No.2200088/17
– Inappropriate Facebook post leaked to The Sun
Newspaper
– Fair dismissal?

17. Activities outside of work
— Lawrence v Secretary of State for Justice
– Fair Dismissal
— Molloy v Liverpool Community Health NHS Trust
– Dismissal rendered unfair

18. What should employers do?
— Make policies effective and clear
— Carefully consider practices and public perception
— Ensure any disciplinary action is reasonable and
justifiable in the circumstances and that a fair procedure
is followed

19. Any questions?

20. Vicarious liability for contractors
Ceri-Sian Williams

21. Vicarious liability for contractors
This session:
1. What are the risks?
2. Various Claimant’s v Barclays Bank
3. For which workers/contractors might there be liability
4. What acts are caught?
5. Risk mitigation

22. Recent developments

23. The risk
- Additional / unexpected liabilities
- Claims
- Adequacy of:
- scrutiny in procurement/contract management
- insurance cover
- Response to incidents
- Ensuring contract terms/price reflect balance of risk
- Reputational risk

24. The risk
“It is clearly understandable that a “bright line” test, such as is
said to be the status of independent contractor, would make
easier the conduct of business for parties and their insurers…
…However, ease of business cannot displace or circumvent the
principles now established by the Supreme Court”

25. Various Claimants v Barclays Bank Plc (CA)
- 126 claims for sexual assaults by Dr Bates
- Bates undertook pre-employment examinations for the Bank
- Bates also worked for other clients.
- No finding of fault on the part of the Bank
- Bates was an independent contractor.
- Court of appeal found the bank vicariously liable.
- Vicarious liability can exist in relation to independent contractors.

26. When might vicarious liability arise?
— Staff engaged via an agency
— Brother of a Christian Order
— Prisoner working in a prison kitchen
— Foster Carer
— Independent contractor
— Volunteers?

27. What acts are caught
— Abuse and sexual assault
— Some physical assaults
— Harassment
— Rogue employee who perpetrates a data breach
— Not an employee committing fraud as part of a ‘recognisably
independent business’

28. Risk Mitigation
- Awareness: outsourcing a service to an independent
contractor may not always outsource risk

29. Risk Mitigation
- Contractual:
- Assess risk before procurement/tendering
- Requirements/terms may impact on liability
- Indemnities provide some protection
- Insurance requirements provide greater security
- All of the above may impact on price

30. Risk Mitigation
- Insurance:
- Own insurance and that of contractors
- Compliance with ‘fair presentation of risk’ requirement
- Scope of the insuring clause
- Relevant exclusions/endorsements
- ‘Claims made’ or ‘Claims occurring’
- Notification

31. Summary
- Vicarious liability is expanding in terms of
- The worker/contractor relationships covered
- The acts for which an employer can be liable
- Speculative claims are an increasing risk
- Early consideration of risk allows for mitigation including:
- Contract arrangements
- Insurance
- Aa appropriate response to incidents.

32. Engaging with the Public Sector
Alex Kynoch

33. Engaging with the Public Sector
1. Report on industry engagement with the public sector
through procurement: “Partnering for Prosperity”
2. The impact of public procurement
3. What can the sectors do to overcome the challenges?

34. Partnering for Prosperity
— Joint report prepared by the CBI (Confederation of British
Industry) and Browne Jacobson
— Reports on new evidence drawn from a national survey of
suppliers to the public sector
— 3 Key recommendations…

35. Key Findings

36. Key Findings

37. Key Findings

38. Recommendations for Government and
Industry
1. Work together to address short-termism in the public
marketplace by boosting industry engagement and shifting
approaches to cost and risk
2. Drive greater adoption of good commercial guidance in the
public sector
3. Capitalize on opportunities created by Brexit (eventually…)

39. Addressing short-termism
1. Managing risk appropriately
2. Focusing on long-term value for money (no races to the
bottom)
3. Supporting innovation
4. Bidding responsibly

40. Good commercial practice
— Streamlining processes:
– 20 ministerial departments, 400 public agencies and 353
local authorities
– Standardised T&Cs
– Standardised procurement documents

41. Good commercial practice
— Boosting transparency and industry engagement:
– Framework Agreements
– Industry Engagement (general and specific)
– Publishing on Contracts Finder

42. What can you do?
— Public sector:
– Spend time to save time
– Avoid encouraging a ‘race to the bottom’
– Avoid unacceptable risk transfers
— Private sector:
— Raise clarifications as they arise
— Resolve issues with customer before using Cabinet Office
‘mystery shopper’ or challenging
— Avoid post-tender renegotiation

43. Coffee break

44. Commercial & Tech law
Richard Nicholas

45. Commercial & Tech
Today:
1. Contract update – Supreme Court case
2. GDPR – 6 months on – cases and practice
3. Brexit - checklist of issues
4. Skills for in house lawyers

46. 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 ☺

47. “No variations”
Bluff or not?
Rock Advertising v MWB Business Exchange Centres
16 May 2018 - Supreme Court

48. GDPR – six months on
Cases/ Practice:
- DPAs – Controller/Processor
- Controller “Notification/registration”
- Data breach notification
- Training – (apps)*
- Liability

49. GDPR – six months on
Good news for Marketers:
Xerpla
Good news for data controllers:
DB v GMC
Bad news for Cloud providers
NIS Regulations

50. GDPR – six months on
- DPAs – [Webinar - DATA] Controller/Processor
Who…
- Decides what [else…] the data is used for
- Decides how long kept for
- Keeps it (after use)
- Responds to subject’s rights/Notify
- Is liable for loss/inaccuracy

51. GDPR – six months on
— Notification/Register of fee payers
— Liability
— Data breach notification
— Training
- App/software
- [ insert shameless plug for October session here]

52. Hard brexit – 6 months to go?
 Data – Intra Group Agreement?
 Contracts
 Importing/Exporting
 Double Taxation Treaties
 VAT Registration
 Staff

53. Skills training - November
 Measuring your value
 Coaching your team
 Presentation Skills
 Negotiation Skills
 Business Writing and Legal Drafting
 **Your own area**

54. Advertising & Marketing
7 things to avoid when working with influencers
@AlexWatt & @SamWhittingham

56. DON’T forget it is a Services Agreement
— Quantity (of posts) and Quality (of images and text)
— Strategic Payments
— Approval process for posts (but bear in mind Stories)
— Clear brief and deliverables
— What is it linked to? A promotion? a shoot? Is it a giveaway? A
competition? A discount code? What else applies?

57. DON’T take on any old influencer
— Exclusivity?
— Past conduct?
— It is your job to do the due diligence
here.
— Make them aware of your Brand
Guidelines (and make those binding)
— Choose your influencer carefully
– need to understand where they fit
– need to be right

58. DON’T breach the CAP Code
— Young audience? Outrageous behaviour?
— #Ad or #Spon?
— Paid Promotion?
— ASA Ruling: Mars Chocolate UK Ltd, 7
March 2012
“I pity the fool who doesn’t remember to use #Ad”
- Mr T (probably)

59. DON’T forget about Intellectual Property
— Did they take the image? If not – who did? Get an Indemnity!
— Usage – what do you want do you want to do with the image? and
for how long?
— Be original!
— Other brands in the shot?
— If you want to own the image – you still need a written assignment!

60. “So happy with my free products! Thanks #Colgate
…#Spon”

61. DON’T contract with the wrong party
— Who is the deal actually with?
— Influencer? Agency? Personal
company?
— If Personal Company, can you
get a letter of guarantee?
— Where is the money paid?
(not always the same thing!)

62. DON’T forget to choose your territory
— Social media: A frontier without
borders
— Jurisdiction?
— Impact on exclusivity?
— Platform? Different terms,
scope, impact, opportunity &
risk.

63. DON’T leave yourself without an exit
— Include ability to request post/video
take down
— Testing the morality clause
— FILA and Chris Webber example

64. Thank you
Alex Watt
Partner
t: +44 (0)20 7337 1008
e: alex.watt@brownejacobson.com
Linkedin: https://www.linkedin.com/in/alexwatt/
Sam Whittingham
Solicitor
t: +44 (0) 330 045 2250
e: sam.whittingham@brownejacobson.com
Linkedin: https://www.linkedin.com/in/samwhittingham/

65. Thank you
Richard Nicholas
Partner
t: 0121 237 3992
e: richard.nicholas@brownejacobson.com
Alex Watt
Partner
t: 020 7337 1008
e: alex.watt@brownejacobson.com
Alex Kynoch
Associate
t: 0115 976 6511
e: alex.kynoch@brownejacobson.com
Raymond Silverstein
Partner
t: 020 7337 1021
e: raymond.silverstein@brownejacobson.com
James Arrowsmith
Partner
t: 0121 237 3981
e: james.arrowsmith@brownejacobson.com
Sam Whittingham
Solicitor
t: 0330 045 2250
e: sam.whittingham@brownejacobson.com