UK: Legal And Regulatory Update - October 2015

Consumer Rights Act

The main provisions of the Consumer Rights Act relating to goods, digital content, services and unfair contract terms and notices came into force on 1 October 2015.

The Competition and Markets Authority (CMA) has published its final guidance on unfair contract terms and notices under the Act.

https://www.gov.uk/government/publications/unfair-contract-terms-cma37

The Department for Business, Innovation & Skills has published updated guidance on the Consumer Rights (Payment Surcharges) Regulations 2012 (SI 2012/3110)

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/452405/BIS-15-343-BIS-payment-surcharges-guidance.pdf

Alternative Dispute Regulations

The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015 (SI 2015/542) (ADR Regulations) came into force on 1 October 2015 and require traders selling to consumers to give their customers information about alternative dispute resolution (ADR).

Every trader who is unable to resolve a consumer's complaint with them directly using the trader's internal complaints procedure must inform the consumer on a "durable medium" (such as a letter or email) that it cannot settle the complaint, of the name and website address of the relevant ADR provider and whether the trader is obliged or prepared to make use of the relevant provider.

The use of ADR is not mandatory under the ADR Regulations, but may be mandatory under the rules of a trade association. A trader who is obliged by law or their trade association rules or the terms of a contract to use ADR services provided by a particular ADR entity must provide the name and website address of the ADR entity in its terms and conditions and on its website.

The Chartered Trading Standards Institute is responsible for appointing recognised ADR providers. Motor Codes (part of the SMMT) and the National Conciliation Service (part of the RMIF) have both been approved as ADR providers.

Some of the main operational rules ADR providers must follow are:

  • The ADR procedure must be free of charge or available at a nominal fee to consumers.
  • ADR providers have three weeks from receiving a complaint file in which to inform the parties concerned if they are refusing to deal with a case.
  • Disputes must be concluded within 90 days of receiving the complete complaint file. This timeframe can be extended in the case of highly complex disputes.
  • Individuals who oversee disputes must have the necessary expertise and be independent and impartial.
  • ADR providers must make available specific information about their organisation, methods and cases they deal with, and provide annual activity reports.
  • Consumers must have the option to submit a complaint (and supporting documentation) and to exchange information either online or offline.

Call charges for service numbers

Ofcom has introduced changes to the way calls to service numbers are billed, with effect from 1 July 2015. The cost of calling service numbers needs to be displayed in two parts:

  • An access charge: This is the charge the phone company makes for connecting the call. This part of the call charge goes to the customer's phone company, charged as pence per minute. They will notify customers how much the access charge will be for calls to service numbers.
  • A service charge: This is the charge made by the organisation being called, of which customers must be made aware of. The service charge part of calling 084 and 087 numbers will be capped at 7p and 13p respectively (per minute or as a fixed fee and including VAT).

For instance, the caller's phone company charges 10p per minute for calls to service numbers and the service charge for the company being called is 7p per minute. In that case, the company would need to provide a notice like this:

"Calls cost 7p per minute plus your phone company's access charge."

These rules apply to all consumer calls made to 084, 087, 09 and 118 numbers across the UK, with the aim of delivering clearer call rates for everyone. They do not apply to calls made to ordinary landline numbers, 01, 02, 03 numbers or mobile 07 numbers. Nor do they apply to calls made from payphones, international calls, or calls to the UK when roaming overseas.

PhonepayPlus and the Advertising Standards Authority are responsible for enforcing these requirements and have the power to impose penalties for non-compliance.

Modern Slavery Act 2015 – new legal duties from October 2015

The Modern Slavery Act 2015 will impose a new obligation on businesses to report what they are doing to combat slavery and human trafficking. The new duty will apply to all businesses which carry on any part of their business in the UK and which "supply goods or services" (essentially all trading companies and partnerships). Foreign companies may be caught by this as well as UK-incorporated entities.

Under Section 54 of the Modern Slavery Act, commercial organisations (companies or partnerships) must publish a statement annually that either: (1) details the steps taken by the commercial organisation to ensure that slavery and human trafficking is not taking place in any part of its business or supply chain; or (2) explains that no such action was taken.

Section 54 is expected to come into force this month. It will only apply to commercial organisations within a certain turnover limit – the Government has said it intends to set that limit at £36 million (the size of a large company for the purposes of the Companies Act).

The Act does not specify exactly what a business should do in relation to supply chain transparency, and there is no prescribed form of transparency statement. However, the Act suggests that the statement 'may' include:

  • a description of the organisation's business model and supply chain relationships;
  • policies relating to modern slavery, including due diligence and audit;
  • training available and provided to those in 1) supply chain management and 2) the rest of the organisation;
  • the principal risks related to slavery and human trafficking including, how the organisation evaluates and manages those risks in their organisation and their supply chain; and
  • relevant key performance indicators.

The statement must be approved by the most senior officials in an organisation (e.g. the board of directors in a corporate body, or a partner in a partnership).

If the organisation uses a website, it must publish the report on that website and include a link to it in a prominent place on the website's homepage.

If companies do not comply, they can be served with an injunction by the Secretary of State. In practice, we expect that campaigning organisations will "name and shame" those companies who do not comply.

Human rights issues, as well as supply chain transparency, are increasingly on the agenda for in-house counsel and risk managers. In the UK, listed companies must now report publicly on social, community and human rights issues to the extent necessary for an understanding of the development, performance or position of the company. And many companies have now signed up for voluntary commitments such as the Global Compact.

Holiday pay calculations: the position post Lock v. British Gas Trading Limited

In the November 2014 edition of our UK Automotive Newsletter we discussed holiday pay and the cases of Williams and others v. British Airways plc (Case C-155/10), Lock v. British Gas Trading Limited (Case C-539/12) and Bear Scotland Ltd and others v. Mr David Fulton and others (UKEATS/0047/13/BI). Please click  here for the full article.

Below is a refresher of the above cases and some updates on the current position.

Williams and others v. British Airways plc and Lock v. British Gas Trading Limited

These claims held that "normal pay" is to be paid during holiday and not just basic salary.

In Lock, it was also decided that commission determined with reference to sales achieved should be included in the calculation of holiday pay insofar as it was "intrinsically linked" to the performance of tasks under the worker's contract.

In Williams, it was decided that payments which are "intended exclusively to cover occasional or ancillary costs" arising at the time the worker performs the tasks are excluded from the calculation of holiday pay. Some allowances are therefore excluded.

These decisions led to many questions from employers about the calculations of holiday pay, when considering the various payments and allowances in place.

Bear Scotland Ltd and others v. Mr David Fulton and others

Following the cases of Williams and Lock, the Employment Appeal Tribunal (EAT) considered in Bear Scotland how overtime and certain travel-related allowances should be treated for the calculation of statutory holiday pay. The EAT made the findings set out below.

  • What constitutes "normal" (for the purposes of determining "normal pay") is not clearly defined, but the payments will have to have been made for a sufficient period to qualify as "normal". If there is no settled pattern of work, then an employer must take an average over a referenced period to be determined by national legislation.
  • There must be a direct link between the payment made and the work that the worker is required to carry out.
  • Where the worker's contract requires them to accept any overtime if requested (non-guaranteed overtime), this should be taken into account in holiday pay. The position regarding voluntary overtime was not clarified here; however, if an employee regularly undertakes voluntary overtime so that it becomes a settled pattern of work, it arguably should be taken into account.
  • A three-month break between periods of leave will break the chain in a "series of deductions".

This means that the scope of unlawful wage deductions claims for backdated holiday is limited as claims cannot go back beyond any three-month gap between underpaid holiday payments (see also our comments below regarding legislative developments).

Whilst the position remains far from clear, the table below indicates what is understood to be the current position following Bear Scotland.

Type of pay Include in holiday pay?
Commission Where commission is intrinsically linked to the performance of tasks under contract, commission should be included. The exact calculation is left up to national courts, but it must be based on average commission earned over a representative period, which will differ depending on the industry and the job.
Guaranteed (compulsory) overtime This is overtime where the employer is liable to pay the worker even if they are not actually called upon to work. This is considered to constitute part of the worker's "normal working hours" and therefore should be included for the full 5.6 weeks of holiday.
Non-guaranteed overtime This is overtime that a worker is obliged to accept when the employer offers it. As this type of overtime is required by the employer it is intrinsically linked to the worker's work. Therefore, it should be included in holiday pay calculations.
Voluntary overtime The position here is unclear. It may well be that Employment Tribunals (ETs) will interpret this as forming part of normal remuneration if a settled pattern of voluntary overtime has developed. However, the ET in the Bear case did not consider this and so we will have to await further guidance.
Allowances (reimburse workers for costs incurred) These allowances are expressly excluded from the Working Time Directive (WTD) and therefore are not to be included in holiday pay calculations.
Allowances (more of a bonus nature) Where an allowance is more like a bonus for performing certain tasks or performing them under specific conditions or at certain times, these should be included.
Productivity, attendance or performance bonuses Incentive Bonus Awards have been found to be a part of normal pay and therefore should be included.
Annual discretionary (and other) bonuses This is a particularly grey area as, whilst bonuses are generally intrinsically linked to the performance of some element of a contract, they also, by their very nature, do not fit easily within "normal remuneration". Additionally, anything less than a 12-month reference period would not be suitably representative.
Bonus based solely on company performance ❓/✘ This has not been considered by the ETs. However, there is a strong argument that, provided there is no financial disincentive to taking holiday, such payments should not be included for holiday pay purposes.
Standby and emergency call-out payments As they are intrinsically linked to the performance of tasks under the contract, they should be included.
"Acting up" supplement As they are intrinsically linked to the performance of tasks under the contract, they should be included.


The prevailing view is that the payment of commission in holiday pay applies only to the four weeks, as under the WTD, not the additional 1.6 weeks, as under the Working Time Regulations (WTR) (Sood Enterprises Ltd v. Healy UKEATS/0015/12/BI). Additionally, the EAT in Bear Scotland suggested that it is for the employer to choose whether the leave taken constitutes part of the WTD four weeks or part of the WTR additional 1.6 weeks.

Legislative developments

In January 2015, in an attempt to limit the impact on businesses of the EAT's decision in Bear Scotland, the Government introduced regulations which capped backdated unlawful deductions claims at two years. The cap applies to claims brought on or after 1 July 2015.

Lock and others v. British Gas Trading Limited

We are likely to see further developments arising from the appeal of the Lock claim. This is due to be heard by the EAT on 8 and 9 December 2015. It is expected that British Gas will argue at the appeal hearing:

  • that Bear Scotland should not have had any bearing on the outcome in Lock. This is because in considering overtime it was necessary to refer to the definition of "a week's pay" in the Employment Rights Act 1996; however, this is not the case for commission and non-guaranteed overtime; and
  • that the EAT in Bear Scotland was wrong to conclude that domestic legislation could be interpreted purposively to give effect to EU law.

Food for thought for employers

  • Dealing with holiday pay in employment contracts Employers need to decide whether to amend contracts based on the above decisions to ensure they are including particulars which are sufficient to enable the worker's entitlement to be precisely calculated (in order to comply with the minimum terms required to be set out in writing by legislation). The alternative may be to outline the organisation's approach in a non-contractual holiday policy, at least until the uncertainties have been ironed out. If employers opt for this approach they should be mindful that this will probably be insufficient to comply with the legislation, but may avoid employees becoming contentious as they will recognise that the organisation is aware of the changes and is reflecting those changes in its calculations of holiday pay.
  • Pensions implications Pensionable salaries, as a result of Bear Scotland, could be higher than employers have previously accounted for. Where a pension scheme defines pensionable salary in relation to the remuneration due there is a risk of two claims from employees:
    • that holiday pay calculated on the basis of normal pay is legally due to be paid and should, therefore, have been fed into pension contributions; and
    • that the shortfall in contributions unfavourably impacted the value of their future benefits.

Employers could consider changing the definition of pensionable salary so that it is based on contractual salary or on remuneration actually received by the employee, thereby mitigating the above risk.

Future developments

In light of the pending appeals of the above cases and the general uncertainty remaining in this area, employers are recommended to seek specialist advice regarding calculation of their holiday pay.

Safe Harbor: EU court decision

On 6 October 2015 the Court of Justice of the European Union (CJEU) handed down its decision on Safe Harbor in the Schrems case. The Court agrees with the Advocate General and says that:

  • DPA Decision: the fact that the EU Commission had made a Decision (2000/520/EC) to approve the US Safe Harbor, does not prevent national data protection authorities from investigating claims in connection with it; and
  • Safe Harbor Decision: the Commission's decision (2000/520/EC) on Safe Harbor is invalid.

The ICO has subsequently issued a press release. It says that businesses should review how data is transferred to the US but that it recognises this will take some time. The ICO also reminds everyone that Safe Harbor is not the only basis for data transfers and that the ICO is considering the judgment in detail and working with counterpart data protection authorities in other EU member states to issue further guidance for businesses on the options available. Clearly, the message is: "Don't Panic". The Commission said the same thing in its press conference on 6 October.

There are currently 4,465 companies signed up to the self-certification Safe Harbor regime. Technically, the Safe Harbor data export permission no longer applies. Companies therefore need to find alternative legal bases for data exports from Europe to the US. The Commission in its press conference has said it is important that transborder data flows continue and that guidance will be published for EU businesses to ensure clarity and certainty. The Commission has also said that it is "well advanced" in agreeing a new Safe Harbor 2.0 package, but could not give any time frame for finalising this.

Private actions in competition law

The automobile industry has been firmly in the gaze of the EU competition authorities over the last few years. In March 2014, the European Commission (the Commission) imposed fines totalling €953,306,000 on European and Japanese companies involved in an automotive bearings cartel. The companies involved were co-ordinating the passing-on of steel price increases to customers, colluding on quotes and annual price reduction requests, and exchanging commercially sensitive information. Other numerous car part cartel investigations are ongoing, as is Pilkington Group Ltd's (Pilkington) appeal against a €370,000,000 fine for their participation in a car glass cartel.

As a result of Pilkington's involvement in the car glass cartel, in July 2010 Volvo brought an action against Pilkington and its subsidiaries in the High Court of London for damages relating to the illegally inflated prices for car glass. However, until relatively recently, such actions have been fairly rare (at least on this side of the Atlantic).

Now, the introduction of The Consumer Rights Act 2015 (the Act) has made it significantly easier for individuals and businesses to receive compensation where there has been an infringement of competition law.

Traditionally, private competition law claims were restricted to "follow on" actions, where a competition law infringement decision had to have been made by an authority (such as the Competition and Market Authority in the UK or the Commission within the EU). For the first time, as of 1 October 2015, the Competition Appeals Tribunal (CAT) may decide on stand-alone damage claims. In these claims, persons who have suffered a loss or damage may bring civil proceedings in respect of an alleged infringement of competition law i.e. it is not necessary for a previous infringement decision to be made in order to bring a claim for losses suffered. This allows potential claimants to file claims as soon as they become aware of the infringement, rather than having to wait for an infringement decision to be made.

The Act also introduces a new collective proceedings regime. Under the existing regime, the CAT may approve similar claims to be combined into a single collective proceeding, where claimants can "opt in" to be part of the action. From 1 October the CAT will also have the power to hear claims where all eligible claimants will be included unless they choose to "opt out". If the CAT approves an opt-out class action, all eligible claimants domiciled in the UK will be automatically included (non-UK claimants may also opt in to the claim). This is the first time that such US style opt-out claims may be heard in the UK.

All this is part of the desire by the competition authorities as policy makers to encourage damages actions to disincentivise companies from engaging in unlawful acts in the first place. Nonetheless, some safeguards have been put in place to avoid a rush of ambulance chasers. The CAT will only approve opt-in or opt-out collective proceedings after considering whether the claims are appropriate to be brought as a class action. The only eligible claims are those which raise the same or similar or related issues of fact and/or law, and the body representing the claimants is "just and reasonable". Additionally, the "loser pays" principle will apply so that the body representing the claimants exposes itself to the cost of proceedings.

Exemplary or punitive damages may not be awarded in collective proceedings. When assessing damages for collective actions, the CAT will consider the damages suffered by the claimants as a whole, not individually. If there are any unclaimed damages after an opt-out proceeding, the CAT will require the defendant to donate them to the Access to Justice Foundation (although this may be changed by the Secretary of State), or towards the body representing the claimants to cover the costs of the proceedings.

If claimants wish to settle a collective proceeding before a decision is made, they must receive approval by the CAT. The CAT must not approve a collective settlement unless it is satisfied that the terms of the settlement are "just and reasonable".

As a result of these changes, there is expected to be a significant rise in the number and type of competition-based damages claims within the UK. It is important that businesses are aware that they may have access to redress for others' breach of competition law, and that they may take the necessary action to look out for and process such claims.

We are increasingly advising companies on setting up dedicated in-house units to do this sort of work, particularly given the potential for them to save a significant return on any outlay involved in doing so.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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