March /February 2017



In this newsletter we will look at:

  • Consent under the General Data Protection Regulation
  • The New National Minimum Wage figures
  • The potential impact of the Chancellor's recent u-turn


General Data Protection Regulation (GDPR) & Consent


GDPR and consent

Business owners and employers are well aware that employees must consent to the processing of their personal data.

The GDPR was adopted in April 2016 and everyone has 2 years to get into shape as the law will be enforced in May 2018.

GDPR will apply to businesses that process personal data in Europe. It will also apply to companies outside of Europe that have a significant client base or a large number of employees in Europe. This short note is a discussion on the issue of obtaining a person’s consent.

There must be real consent, freely given in relation to the processing of personal data, whether it is a client’s data or an employee. The new regulations place a significant emphasis on freely given consent.

In your business you will have a standard contract. Usually at the end the individual concerned simply executes the agreement and consent to everything including the processing of their data. Online, it is all tick boxes.

GDPR states that you will need to have a separate consent form in relation to the processing of the data. Similar to your ‘cooling off’ form which naturally is separate from your main contract.

Ticking boxes on a web page, or silence (implied consent if you continue to process the information for the person) is not going to be consent under the new regulations.

Consent must be intelligible, informed and unambiguous. Thus if you provide a service online, even online to children, consent to processing data must be clearly given.

Consent must be granular for distinct processes (just imagine!).

You must let the data subject know that they have a right to revoke your ability to processing their data at any time.

If the consent will cover several processes, you must let the client know the persons involved in the processing. They must be named. So for example if I am completing a divorce petition. Then my consent form to be executed by the client in theory will mean, I need to get consent for me to prepare the petition as I am processing the personal data. When this form is sent to the court. It will be processed by the court, so my consent form in theory should state that there will be processing by the court. The court will need to be named. If I was sending a barrister to court to argue about the finances, the form would need to consent to the barristers’ chambers processing the personal data so that the client can representation at court. So the barrister’s chamber will need to be named.

The rationale behind the new consent is to give customers and staff more control.

Consent forms therefore must be drawn up in plain English to ensure compliance with the new rules.

Consent obtained must then be documented.

National Minimum Wage

National Minimum wage

The National Minimum Wage (and National Living Wage) rates will increase from 1 April.

The National Minimum Wage is defined as the minimum wage per hour a worker is entitled to under the law.

National Living Wage was introduced by the government on 1 April 2016 and is defined as the living wage for all working people over the age of 25.

The new rates from

  • £7.50 per hour - 25 years old and over
  • £7.05 per hour - 21-24 years old
  • £5.60 per hour - 18-20 years old
  • £4.05 per hour - 16-17 years old
  • £3.50 for apprentices under 19 or 19 or over who are in the first year of apprenticeship.

If an employer provides a worker with living accommodation, the maximum deduction from the National Minimum Wage or National Living Wage which can be made will be £6.40 per day.


Phillip Hammond’s NI U-turn may be a huge problem for some employers

In the recent budget, the Chancellor announced that he was going to increase National Insurance (NI) contributions to be paid by the self-employed by 2%. This would impact 2.5 million people. His aim was to raise £2bn. This aspect of the budget created mayhem as you know, there were a few bad headlines and tory backbenchers screaming Mr Hammond was in breach, it is alleged, of a manifesto promise not to raise taxes.

In order to avoid a backbenchers revolt; after all we have Brexit to think about, the Chancellor Phillip Hammond did a complete u-turn and scrapped the NI increase to the delight of the self-employed.

The Chancellor must however raise funds to compensate for the loss of revenue because of the U-turn.  The best way to deal with it surely is to go after those employers who use or exploit the false/ bogus self-employed. The staff are forced to be self-employed because this saves the employer money, holiday pay, sick pay etc. The industries that have a tendency to do this are the gig economy, construction industry, transport and private social care firms.

In 2015, the CAB suggested that there were approximately 460,000 bogus self-employed[i]

It would be prudent therefore if you have contractors working for you that you make sure they are truly self-employed. You do not want to be in the position where a Judges makes an order to the effect that the staff in question are employed by you; with all the associated risks of the Inland Revenue chasing you for money.








December 2016 - Newsletter


In this article we will take a brief look at the following:-


·         Brexit

·         Cybersecurity

·         The General Data Protection Regulations (GDPR)

·         The Uber Case

·         Facebook and its abuse of WhatsApp

·         Minimum wage

·         Christmas Messag


This is a short article looking at things likely to be of interest to businesses next year. I have missed a few things out: for example artificial intelligence; although recently some of the top law firms have started to look at it. Important cases, such as the Chesterton case which is being appealed. This is whistle-blowing case where the issue is the definition of ‘public interest’. In this case it has been interpreted widely and will be appealed next year.


Christmas Message

1.      Brexit decision


The decision is expected in January 2017; hopefully the result should not cause a riot.

The factual issue the court has to decide is whether or not the executive (the current government), using its prerogative powers can trigger article 50 without the need for an act of parliament.

The government lost its case in the lower court on the basis that parliament is supreme and only parliament has the power to make and get rid of our laws. The government appealed. They were represented by the Attorney General (Jeremy Wright) and Mr Eady QC. The argument put forward on behalf of the government is that the lower court got the law fundamentally wrong and that the government can use its prerogative powers to trigger article 50.

The AG of Northern Ireland, Ron Lavery intervened and stated (besides other matters), it would be unconstitutional to withdraw from the EU without the consent of the people from Northern Ireland. EU law was part of the devolution settlement and accordingly the UK government had transferred power to Ireland and it cannot simply take it away.

James Wolfe QC, the Lord Advocate intervened on behalf of Scotland. The Lord Advocate accepted that Scotland did not have a right to veto the UK parliament; however because the withdrawal from the EU has such constitutional importance and impacts upon Scotland’s devolved powers; Scotland’s consent would be required.

Scotland also argued that the decision of the divisional court must be upheld as the government does not have the authority to remove the UK from the EU using its prerogative powers.

Lord Pannick, on behalf of the respondent, Ms Gina Miller, stated quite clearly in his submissions thatit is preposterous  (my words) for the executive to believe it has the power to trigger article 50 using the royal prerogative. The European Communities Act 1972 brought us into the European Union, It is of constitutional significants because it created a new source of law. The Act also gave new rights to the citizens of the UK and parliament never intended for these rights to be removed by a minister, using the royal prerogative.

James Eady in his closing submissions stated that the European Communities Act is designed for acceptance by the UK of its treaty obligations. It is not intended to control those obligations. The Act is merely a conduit for legal rights.

I sadly believe that Mr Eady has got his law wrong. Parliament is Supreme and there is no legal concept ‘the will of the people’. However the Oxford legal philosopher Timothy Endicott has written a brief article which appears to support the government’s position. So I cannot wait for the Judgment, especially as it has been reported in the press that the decision may not be unanimous!

2.      Cybersecurity

 This will really be a hot potatoes next year! Well the breaches we had (whether in the UK or the USA) were all too embarrassing and could happen to anyone. Talk Talk, Sony and the law firm Mossack Fonseca.

The government has created recently its new National Cybersecurity centre to be based in London. The government will invest 1.9 billion pounds over the next 5 years into cybersecurity.  GCHQ will have some input and over see it. The objectives is for the government to understand the cybersecurity environment in the UK as we are lagging behind when compared to the USA. 

The government aims to reduce the risk to the UK and wants the public and private sector to work together in the creation of a more secure environment. There will be a push to nurture the UK’s cybersecurity capabilities and to provide leadership in this area

 We have to improve (on cybersecurity) and it will be relevant to the next topic under discussion.

3      GDPR

 I know that we are leaving the European Union, however all organisations small and large must be get ready for compliance with the General Data Protection Regulations. It is not negotiable. It will become law in 2018.

Businesses will have to get to grips with the fact that data will be portable, heavy fines if there is a breach of new data protection rules. There will be a new role for the data protection officer and the larger businesses have started employing data protection officers in order to protect their businesses.

I have written a lot on this subject. I am not going to do so today. What I will say is that I will run a few seminars in 2017 to help small businesses get ready.

4.      Aslam and Others v Uber (2016)

 This was one of the more important employment law cases this year. It was decided that Uber workers were ‘employees’ and not self-employed contractors. Thus Uber’s staff are entitled to the minimum wage and holiday pay. Uber may also find itself being hit with a huge tax bill!

The decision was not a surprise as Uber had been losing these cases in other parts of the world (for example the USA where it settled drivers claims).

Whilst Uber’s business model had been viewed as ‘disruptive technology’.  There are other companies that use similar technology that will be before the courts/ tribunals next year for example Adison lee, City Sprint, excel and ecourier. It is worth looking out for these cases.

There is no guarantee that the outcome will necessarily be the same as each case is determined on how the facts are pleaded and presented to the Judges.

On 21 November 2016 permission to appeal the Uber decision was granted; so it is clearly a case to watch in 2017.


5.      Facebook

 Facebook took over WhatsApp as many people will know. However few people new that Facebook were told by the European Commission that they were not allowed to use the WhatsApp data and link it to Facebook. Instead most people opted out of consenting to Facebook using their WhatsApp data as Facebook gave people that opportunity.

Any way what is exciting is that the European commission is investigating Facebook. It claims that Facebook has been misleading it during the investigation. Consequently, Facebook is at real risk of a fine! 1% of turnover.

Facebook has until 31 January 2017 to respond.


6      Minimum Wage

 There are some employers who just love to flout the law. However in the Autumn Statement the government announced that it was going to spend more money trying to enforce the law so that these rouge employers will be made to pay the minimum wage.

From the 1 April 2017 the minimum wage increases will be:-

£7.50 per hour - 25 yrs old and over

£7.05 per hour - 21-24 yrs old

£5.60 per hour - 18-20 yrs old

£4.05 per hour - 16-17 yrs old

£3.50 for apprentices under 19 or 19 in the first year of apprenticeship.

Christmas Message

Thank you for taking time out to read out newsletters. Have a wonderful Christmas and a prosperous New Year. Please do not forget, if someone has legal problems, we would like to be the first to solve them. If we cannot, we are always happy to refer them to a third party.

 Kindly note the firm will be closed from the 21 December 2016 until 4 January 2017