This edition of the “Working with Unions” bulletin covers the period of April to September 2022 and includes: (i) the decision of the Employment Appeal Tribunal in INEOS Infrastructure Grangemouth Limited v Jones & Others and INEOS Chemicals Grangemouth Limited v Arnott & Others, clarifying the scope of the unlawful inducements in collective bargaining provisions under section 145B of the Trade Unions and Labour Relations (Consolidation) Act following last year’s Supreme Court decision of Kostal v Dunkley, and (ii) the Court of Appeal’s decision in USDAW and others v Tesco Stores Ltd which reversed the High Court’s decision to grant an injunction preventing the employer from dismissal and reengagement.
The UK government has recently published its roadmap for regulating AI as a medical device (AIaMD) and software as a medical device (SaMD). This will form part of the basis of the upcoming UK Medical Device Regulation reforms in 2024. In light of the operational difficulties faced by the NHS, AIaMD and SaMD are attractive solutions to alleviate pressures on the UK health system. Yet these products are complex and require a high level of regulatory scrutiny to ensure effectiveness and protect the safety of patients.
Regulators and courts in common law jurisdictions around the world are being given significant and increasing powers to impose financial penalties without traditional criminal law safeguards. Competition law has been particularly susceptible to arguments that traditional safeguards should be discarded to aid regulators in securing convictions. In the first competition case to go to trial in Hong Kong, the Competition Tribunal held in 2019 that in competition proceedings seeking financial penalties, the authority had the burden to prove its case beyond reasonable doubt. This article considers the approach taken in other common law jurisdictions and scope to argue for increased safeguards and human rights protections for clients facing financial penalties.
Hot on the heels of the German Federal Fiscal Court’s publication of its final decision in the Hamamatsu case, UK Customs (HMRC) have today published updated guidance on the customs valuation of imports, replacing its previous guidance (Notice 252).
What jumps out at first glance is a seeming change in policy with regards to the valuation of goods sold between related parties, with HMRC advising “you will not usually be able to use Method 1 [Transaction Value] with a margin-based transfer pricing model.”
Whether employers are making redundancy, promotion or more general day-to-day decisions, they should not disregard the risk of age discrimination simply because the employees concerned are of fairly similar ages. In an article published by Employment Law Journal, John Bracken analyzes three cases which highlight some of the perils employers face when making management decisions about older members of their workforce.
The UK’s political upheaval and fiscal policy changes are much-publicized. But where do we stand on recently proposed changes to employment law as Rishi Sunak starts his premiership? One of the Truss government’s tax proposals – repealing IR35 changes – might have had a significant effect on contractor workforce planning. However, this was abandoned and the current IR35 rules will remain. Conversely, for the time being, the government is pursuing its plans to limit the disruption caused by strike action in the transport sector. Similarly, the removal of the cap on bankers’ bonuses is still on the agenda. Also on the horizon is the potentially ground-changing proposal to scrap all retained EU law, which in theory could include TUPE.
In June 2022, Glencore, one of the world’s largest commodity traders, pleaded guilty to paying bribes to officials in three West African countries and for failing to prevent agents and employees from doing so in two other African countries. On 3 November 2022, Glencore was sentenced and ordered to pay a record amount of GBP 281 million (consisting of a GBP 182.9 million fine, a GBP 93.5 million confiscation order and GBP 4.5 million in respect of the Serious Fraud Office’s costs).
On 17 October 2022, OFSI and OFAC issued a joint statement to reiterate the close working relationship between the two agencies, explaining the rationale behind increased OFSI-OFAC co-operation and how this will manifest in practice. The statement follows a technical exchange attended by OFAC and OFSI in London, which concluded on 13 October 2022.
Modern slavery is an umbrella term for practices which share a common element of force or coercion. The International Labor Organization estimated that, globally, 40.3 million people were working in conditions which could be described as modern slavery in 2016. As a result of the increasingly international reach of modern slavery legislation, many companies with global footprints are modifying their organization to ensure compliance across their business, for example by preparing modern slavery statements which tick off compliance requirements in several jurisdictions. Legislative change is expected in the UK, Canada, and under the EU’s proposed Corporate Sustainability Due Diligence directive.
The UK Supreme Court has handed down its long-awaited judgment in relation to the case of BTI 2014 LLC (Appellant) v. Sequana SA and others (Respondents) [2022] UKSC 25, concerning the duty of directors of a company registered under the Companies Act 2006 to consider (and act in accordance with) the interests of the company’s creditors.