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News 2017

02/06/2017

Bus Services Act 2017

Subject: Transport of passengers: public service vehicles

Source: House of Commons Library

Introduction

The House of Commons Library has published a paper explaining the policy background to and contents and purpose of the Bus Services Act 2017.Introduced in the House of Lords on 19 May 2016, it received Royal Assent on 27 April 2017, just before the last session of Parliament was dissolved for the 2017 snap general election.

The Act extends to England and Wales with one provision extending to Scotland. However it applies only in England and its main changes do not affect London.

Regulatory history

Initiated by the Conservative government, the Transport Act 1985 de-regulated the bus industry across Great Britain, except in London.. Since then, any licensed bus operator outside London may establish a bus service on 56 days' notice. The Bus Services Operators' Grant (BSOG) funds part but not the whole cost of running a service, so commercial operators will normally only choose to run a service that is profitable. This can lead to some areas ending up with two or three different operators on the same routes, whereas other, not so profitable, areas miss out.

Local authorities can tender for operators to run "socially necessary" services to unprofitable areas and they are paid the BSOG by the Department for Transport, which they then top up with their own funding, to make them more commercially attractive to operators who might bid for them. However, the cuts to local authority spending since 2010 have led to many local authorities cutting their funding for subsidised bus services and therefore reducing their attractiveness to potential operator bidders.

In all areas outside London (where buses are not de-regulated), bus passenger numbers have been in long term decline and fares have risen. Five main bus operators (Stagecoach, FirstGroup, Arriva, National Express and Go-Ahead) between them account for 70% of the market (by number of services registered) and ten smaller operators, split between municipal and private companies, account for a further 11%. There are eleven municipal bus companies left in the UK.

Since de-regulation, local transport authorities have had little control over fares, integrated ticketing, and how the bus network integrates into wider transport policy. They can partner with bus companies on a voluntary basis or using a Quality Partnership scheme (introduced by the Transport Act 2000), where the authority provides new infrastructure and in return can enforce certain service standards. The Act extends these existing powers and adds new ones.

The private bus industry has defended its record, arguing that since de-regulation there has been massive investment and modernisation and that it has successfully navigated changes in passenger expectations based on accessibility, the environment and technology.

The Labour Government introduced a type of re-regulation in 2000 in the form of a Quality Contract Scheme (QCS). However, no area has ever introduced such a scheme, largely due to concerns about the complexity of the process and a lack of protection from legal challenge on the part of incumbent private bus operators. The North-East sought to introduce a QCS but those plans eventually fell by the wayside late in 2015.

Since 2010, the Coalition and then the Conservative in government have been moving slowly towards some sort of re-regulation for those parts of the country that want it and which meet certain requirements (i.e. a combined authority with an elected mayor). This significant policy change has largely been driven by the ‘devolution agenda’ for England.

The Bus Services Act is drafted is to add in provisions to existing Acts (the Transport Acts 1985 and 2000) rather than acting as a standalone piece of legislation. This makes it hard to read in context. It is essentially an enabling Act, extending the ability of local transport authorities to introduce franchising or a new partnership arrangement called an enhanced partnership. It also makes amendments to Quality Partnerships and renames them Advanced Quality Partnerships in England; aims to make it easier to introduce multi-operator ticketing and improvements to enhance passenger accessibility and information.

The main concerns that were raised about the Act during its passage through Parliament were that the bar to implement franchising may still be too high and that the Competition and Markets Authority may be able to quash, water-down or delay franchising; that the Government does not intend to make franchising immediately available to all areas; and that local authorities would be prevented from forming new municipal bus companies.

A number of amendments were agreed in the House of Lords and overturned by the Commons; these included the removal of automatic franchising powers to all local authorities in England and the reintroduction of a ban on the formation of new municipal bus companies.

In its report of 25 November 2016 the Transport Select Committee generally welcomed the Act, though it supported many of the changes made by the Lords and later overturned in the Commons. It also criticised the Government for not bringing forwards draft secondary legislation and guidance in time for the Committee to scrutinise it. The Government published draft regulations and guidance on 8 February 2017.

On 4 May 2017 six regions of England held elections for newly created combined authority mayors (Tees Valley; Greater Manchester; Liverpool City Region; West Midlands; Cambridgeshire & Peterborough and the West of England). These mayors will have automatic access to the bus franchising powers contained in the Act from 27 June 2017. It remains to be seen who will take them up, how and when.

Sources acknowledged: Commons Briefing papers CBP-7545; Addleshaw Goddard

07/02/2017

Groceries Code Adjudicator reports on result of consultation

Subject: Competition Law/Groceries Code

Source: Groceries Code Adjudicator

On 7 February 2017, the Groceries Code Adjudicator (GCA) published summaries of the responses received to its consultation on payments for better positioning, opened in June 2016, and its conclusions following the consultation. The GCA consulted the groceries sector on the proper scope of indirect requirements for payment to secure better positioning of goods or increased shelf space within a store following its investigation into Tesco plc, which considered the issue for payments for better positioning of goods under the Groceries Supply Code of Practice (the Code), para 12. The responses received indicated a clear downward trend over the past three years in the incidence of payments for better positioning and increased space, a trend which is continuing. The GCA has therefore concluded that the practices disclosed by all respondents to the consultation indicated a high level of compliance with paragraph 12 of the Code.

The GCA is aware of a range of practices relating to payments for better positioning and allocation of shelf space, and, since the consultation, now knows more about them and their impact on direct suppliers.

The GCA has concluded that while some limited information or anecdotal evidence was provided of practices which might be in breach of the Code, there was not enough information provided to support the need for interpretative guidance or other regulatory intervention.

By highlighting potential concerns about this issue in the report of the investigation into Tesco plc, it appears that the GCA has successfully incentivised all regulated retailers to consider further their practices in this area and to ensure they are Code-compliant.

 

02/02/2017

Business owner prosecuted for failing to register in-store CCTV

Subject: Data protection

Source: Information Commissioner’s Office (ICO)

A business owner has been fined £200 and ordered to pay costs for an offence under s.17 of the Data Protection Act.

Kavitha Karthikesu was operating CCTV cameras at her business premises but had not registered the activity as a data processor with the ICO. Ms Karthikesu had failed to respond to repeated warning letters from the regulator telling her she was in breach of the Act.

The ICO’s CCTV Code of Practice gives guidance to companies using CCTV.

 

02/02/2017

Packaging company fined £50,000 over waste failings

Subject: Environmental control/Waste control

Source: Environment Agency

A mushroom packaging and distribution company has been fined £50,000 for polluting a brook in Evesham.

Following a report that Battleton Brook in Evesham had turned black with a foul odour, in April 2015 an Environment Agency (EA) officer found that the brook had been heavily polluted with organic matter, causing low levels of oxygen. Some frogs and a significant number of invertebrates downstream of Vale Park had been killed as a result of the pollution incident.

Officers from the EA and Severn Trent Water Limited identified the source of the pollution as a skip full of decomposing mushrooms on the site of Walsh Mushrooms, a mushroom packaging and distribution company operating at the Vale Park industrial estate in Evesham. The skip was leaking into a surface water drain and Walsh Mushrooms were advised to remove the skip, undertake a cleaning operation, and conduct a full inspection of the site drainage system.

The EA stated that the company had failed to carry out the site drainage survey within a reasonable time after 24 April 2015. As a result, on 14 May 2015, officers attended the premises of Walsh Mushrooms again to examine the site drainage system and discovered that similar effluent was continuing to flow into it.

A representative of the company was interviewed and accepted that no training had been given to staff regarding the function or maintenance of the site drainage. No training had been given to staff regarding pollution risks associated with storing waste on the site. The company had failed to carry out any environmental risk assessments since it began operating at Vale Park in 2000.

Walsh Mushrooms was charged with one offence of polluting Battleton Brook with the effluent of rotting mushrooms contrary to Regulations 12 (1) (b) and 38 (1) (a) of the Environmental Permitting (England and Wales) Regulations 2010. The company pleaded guilty at Cheltenham Magistrates’ Court to the offence and was fined £50,000 and ordered to pay costs.

The company, which had no previous convictions, expressed remorse for the incident. It acknowledged its failure to carry out environmental risk assessments or give appropriate training to company staff. The company stated that it had co-operated with the EA’s investigation and taken steps to remedy the issues at the site. These included the monthly sampling of fluids from the on-site inceptor, the training of staff and the storage of waste mushrooms in leak-proof containers.

02/02/2017

Automatic Enrolment Triggers and Pensions Regulator warning

Subject: Employment law/Pensions

Source: www.legislation.gov.uk

The draft Automatic Enrolment (Earnings Trigger and Qualifying Earnings Band) Order 2017 sets revised amounts for the 2017/18 tax year are set out for the upper and lower thresholds of the automatic enrolment qualifying earnings band and rounded figures for the earnings trigger and qualifying earnings band. These changes come into force on 6 April 2017.

The Pensions Act 2008 (PA 2008), s 13, provides that an individual’s qualifying earnings are those of more than the amount specified in subsection (1)(a) of that section, and not more than the amount specified in subsection (1)(b) of that section.

The automatic enrolment and re-enrolment earnings trigger is the earnings level at which employers must automatically enrol eligible jobholders into a qualifying workplace pension scheme.The automatic enrolment qualifying earnings band is, in relation to money purchase schemes, the band of earnings on which employers and workers must pay a minimum level of contributions .Each tax year the Secretary of State has to review the automatic enrolment earnings and re-enrolment earnings triggers and the qualifying earnings band.

The Secretary of State has decided the current automatic enrolment and re-enrolment earnings trigger of £10,000 remains at the right level and therefore will not change for 2017/18.In relation to the upper and lower limits of the qualifying earnings band, the Secretary of State has decided:

* that the National Insurance Contributions Upper Earnings Limit at its 2017/18 value of £45,000 (up from its 2016/17 value of £43,000) is the factor that should determine the upper limit of the qualifying earnings band;

* to retain the link with the National Insurance Contributions Lower Earnings Limit at its 2017/18 value of £5,876 as the lower limit of the qualifying earnings band for 2017/18.

The Automatic Enrolment (Earnings Trigger and Qualifying Earnings Band) Order 2015, SI 20915/468, and the Automatic Enrolment (Earnings Trigger and Qualifying Earnings Band) Order 2016, SI 2016/435, are revoked.

The Pensions Regulator warns employers who ignore automatic enrolment duties could find themselves with a County Court Judgement, the regulator has warned.

The alert comes as The Pensions Regulator (TPR) issues the latest update on its automatic enrolment enforcement activity which shows the number of fines has again risen in proportion to the large number of employers now reaching their deadline to comply.

             

TPR will seek a County Court judgment against employers who ignore penalty notices sent to them. If an employer fails to pay within 30 days of receiving the judgment, the details will appear on their credit record.

01/02/2017

Overhead crane worker suffers life threatening injuries

Subject: Health and Safety at Work/Lifting operations

Source: Health and Safety Executive (HSE)

A Cleckheaton engineering firm has been fined £40,000 and ordered to pay costs after a worker suffered life changing injuries. H E Realisations Ltd (now in liquidation, formerly Hogg Engineering Ltd)  pleaded guilty to breaching s.2(1) of the Health and Safety at Work Act 1974 and reg.8(1) of the Lifting Operation and Lifting Equipment Regulations 1998.

Gateshead Magistrates’ Court heard that on 24 February 2015, Kevin Tait was using equipment to lift an 18 tonne steel roll at the company’s premises at Carlington Court, Factory Road, Blaydon-on-Tyne. The equipment being used was not suitable for the lifting operation due to the fact that the load being lifted exceeded the equipment’s safe working load. During the lift, part of one of the shortening clutches sheared causing the load to swing and strike Mr Tait on the head. The Health and Safety Executive (HSE) prosecuting told the court the lifting operation had not been suitably planned and the equipment in use was poorly maintained

 

31/01/2017

New guidance to help large businesses with late payment reporting

Subject: Selling and Marketing /Late payment of debts

Source: GOV.UK

In December 2016, the Government published its consultation response ‘Duty to report on payment practices and performance: government response’. The document explained how the Government would implement a duty on large businesses to report on their payment practices, policies and performance, under section 3 of the Small Business, Enterprise and Employment Act 2015. Included in the document were the draft Reports on Payment Practices Regulations 2017.

Latest figures show that SMEs are owed £26.3bn in overdue payments. The new measures, laid in Parliament on 31 January 2017, aim to highlight bad practice by making large businesses publish details on the time taken to pay their suppliers.

The Department for Business, Energy and Industrial Strategy (BEIS) has now issued Guidance on the Duty to report on payment practices and performance to help large businesses report on how quickly they pay their suppliers. The guidance has been published ahead of measures coming into force in April 2017 which aim to boost transparency of payment practices to help small and medium sized businesses (SMEs).

The objectives of the reporting requirement are to:

* increase transparency and public scrutiny of large businesses’ payment practices and performance; and

* give small business suppliers better information so they can make informed decisions about who to trade with, negotiate fairer terms, and challenge late payments.

‘Large’ companies and large limited liability partnerships (LLPs)1 will be required to publish information about their payment practices and performance twice per financial year on a government web service. They will be required to report on the following:

* Descriptions of:

- the organisation’s payment terms including: standard contractual length of time for payment of invoices, maximum contractual payment period and any changes to standard payment terms and whether suppliers have been notified or consulted on these changes;

- the organisation’s process for dispute resolution related to payment

* Statistics on:

- the average time taken to pay invoices from the date of receipt of invoice;

- the percentage of invoices paid within the reporting period which were paid in 30 days or fewer, between 31 and 60 days, and over 60 days, and the proportion of invoices due within the reporting period which were not paid within agreed terms.

* Statements about whether an organisation offers e-invoicing or supply chain finance, whether the organisation’s practices and policies cover deducting sums from payments as a charge for remaining on a supplier’s list, and whether it is a member of a payment code.

A ‘large’ business is defined as a company or limited liability partnerships which exceeded two or all of following thresholds on both of their last two balance sheet dates:

- over £36 million annual turnover

- over £18 million balance sheet total

- over 250 employees

24/01/207

Government may not use Prerogative power to trigger ‘Brexit’ by invoking Article 50

Subject: Law, Lawmakers and Lawyers

Source: Supreme Court of the UK

R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin)

Article 50 of the Treaty on the European Union provides that, if a member state decides to withdraw from the European Union (EU) it should serve a notice of that intention and that the treaties which govern the EU (EU Treaties) shall cease to apply to that member state within two years thereafter.

Following the June 2016 referendum, the Government proposed to use its prerogative powers to withdraw from the EU by serving an Article 50 notice (Notice). The Claimants, Gina Miller and Deir Tozetti Dos Santos issued proceedings in the High Court for a declaration that the Government could not lawfully give a Notice without prior authorisation by an Act of Parliament. The High Court ruled in favour of the Claimants.

The Government appealed to the Supreme Court. References from Northern Ireland, and interventions by the Lord Advocate for the Scottish Government and the Counsel General for Wales for the Welsh Government, raised the additional issues of whether the terms on which powers had been statutorily devolved required consultation with or the agreement of the devolved legislatures before the Notice was served.

The Claimants argued that, owing to the well-established rule that prerogative powers may not extend to acts which result in a change to UK domestic law, and withdrawal from the EU Treaties would change domestic law, the Government was not entitled to serve a Notice unless first authorised to do so by an Act of Parliament.

The Government argued that the European Communities Act 1972 (ECA) did not exclude the power for ministers to withdraw from the EU Treaties, and that s.2 of the Act actually catered for the exercise of such a power as it gave effect to EU law only so long as the power of withdrawal is not exercised [75]. However, . The Government accepted that the resolution of the House of Commons on 7 December 2016 calling on ministers to give notice under Article 50 by 31 March 2017 was a political act which did not affect the issues arising in the appeals [116-124].

The Supreme Court by a majority of 8 to 3 dismissed the Government’s appeal. The Court ruled that the resolution of the dispute depended on the proper interpretation of the European Communities Act 1972 (ECA), which gave domestic effect to the UK’s obligations under the then existing EU Treaties, together with subsequent statutes, which gave effect to and related to later EU Treaties, and the European Union Referendum Act 2015. The devolution issues required the court to consider whether the terms of the Northern Ireland Act 1998 (NIA), and associated agreements, required primary legislation, and the consent of the Northern Ireland Assembly and/or the people of Northern Ireland, before a Notice could be served. Under each of the devolution settlements in Northern Ireland, Scotland and Wales the devolved legislatures had responsibilities to comply with EU law, and there was a convention (the Sewel Convention) that the UK Parliament would not normally exercise its right to legislate with regard to devolved matters without the agreement of the devolved legislature.

The Supreme Court ruled that an Act of Parliament was required to authorise ministers to give Notice of the decision of the UK to withdraw from the European Union. On the devolution issues, the court unanimously concluded that neither s.1 nor s.75 of the NIA was of assistance in this case, and that the Sewel Convention did not give rise to a legally enforceable obligation.

The Supreme Court considered that the terms of the ECA, which gave effect to the UK’s membership of the EU, were inconsistent with the exercise by ministers of any power to withdraw from the EU Treaties without authorisation by a prior Act of Parliament. S.2 of the ECA authorised a dynamic process by which EU law becomes a source of UK law and takes precedence over all domestic sources of UK law, including statutes [60]. So long as the ECA remains in force its effect is to constitute EU law as an independent and overriding source of domestic law [65]. It operates as a partial transfer of law-making powers, an assignment of legislative competences, by Parliament to EU institutions, unless and until Parliament decides otherwise [67-68].

It was common ground that UK domestic law would change as a result of the UK ceasing to be party to the EU treaties and the rights enjoyed by UK residents granted through EU law would be affected [69]. However, there was a vital difference between variations in UK law resulting from changes in EU law, and variations in UK law resulting from withdrawal from the EU Treaties. Withdrawal makes a fundamental change to the UK’s constitutional arrangements, by cutting off the source of EU law, [78-80]. Such a fundamental change would be the inevitable effect of a Notice being served [81]. The UK constitution required such changes to be effected by Parliamentary legislation [82].

The fact that withdrawal from the EU would remove some existing domestic rights of UK residents also rendered it impermissible for the Government to withdraw from the EU Treaties without prior Parliamentary authority [83]. It would have been open to Parliament when enacting the ECA to authorise ministers to withdraw from the EU Treaties, but clear words would have been required. Not only were there no such clear words, but the provisions of the ECA indicated that ministers do not have such power [87, 88]. Withdrawal is not authorised by s.2, which envisaged ministers taking part in the EU law-making processes: withdrawing from the EU is doing the opposite [95].

The devolution Acts were passed by Parliament on the assumption that the UK would be a member of the EU, but they did not require the UK to remain a member. Relations with the EU and other foreign affairs matters are reserved to UK Government and parliament, not to the devolved institutions. Withdrawal from the EU would alter the competence of the devolved institutions, and remove the responsibilities to comply with EU law. [129-130].

[References in square brackets are to paragraphs in the full judgment. Crown copyright: contains public sector information licensed under the Open Government Licence v3.0
Legaleze is solely responsible for the above text which is a summary only and the full report should be read.]

Comment: in our view there has been a great deal of biased and ill-informed comment about this case. The judges were accused by some commentators of being ‘enemies of the people’. Both the Claimants and the judges have been accused of somehow thwarting the will of the people. In reality, the judges were ruling on a pure point of law and emphasised they were not seeking to interfere with the political process. Far from thwarting the will of the people, they ruled that Parliament should authorise the Notice to start the Brexit people rather than the Executive.

The remarkable aspect of this case for us is the fact that private citizens had to take the initiative and spend their own money in order to bring this enormously significant case of constitutional law.

 

24/01/2017

ICO imposes GBP 50,000 monetary penalty for spam text messages

Subject: Selling and Marketing/Direct marketing

Source: Information Commissioner’s Office (ICO)
https://ico.org.uk

LAD Media sent nearly 400,000 unsolicited text messages which read: ‘Government schemes allow you to write off a high % of debt you cannot afford, reply HELP or go to www.resolvefinance.co.uk for information. Or Stop to opt-out.’ The ICO investigated the case after it received more than 150 complaints about the messages.

LAD Media informed the ICO it had purchased the data used to send the text messages from a third party data supplier, and that the text messages had then been sent on its behalf by another company. The ICO ruled that the firm had committed a serious breach of regulation 22 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 because it had sent the text messages without obtaining the consent of the subscribers. The ICO imposed on the firm a GBP 50,000 monetary penalty.

24/01/2017

Warburtons fined GBP 2m after worker is injured in fall

Subject: Health and Safety at Work

Source: Health and Safety Executive (HSE)
http://press.hse.gov.uk

Source: Health and Safety Executive (HSE)

In November 2013, a worker at bread-maker Warburtons was cleaning a mixing machine at Warburtons' Wednesbury bakery when he lost his footing and fell nearly two metres. He suffered a fractured spine and was unable to return to work until December 2014 but was subsequently dismissed in December 2015 after another long period of sick leave. An investigation by the HSE found that the company routinely expected workers to access the top of the mixers to clean them, where they were often unbalanced and in danger of falling. The workers were not adequately supervised and had no training on how the mixers needed to be cleaned at height.

Warburtons Ltd pleaded guilty to a breach of the Work at Height Regulations 2005, SI 2005/735, reg 6(3) and was fined GBP 2 million and ordered to pay costs.

23/01/2017

ICO action to tackle unlawful personal data processing by charities and an individual

Subject: Data protection; Selling and Marketing/Direct marketing

Source: Information Commissioner’s Office (ICO)

The ICO has announced the imposition of monetary penalties of £25,000 and £18,000 respectively for the RSPCA and British Heart Foundation for serious breaches of the Data Protection Act 1998 (DPA).

The infringements relate to ‘wealth screening’ of potential donors whose data was processed in breach of the DPA. The ICO found that the privacy policies relied upon by the organisations to permit the processing was too vague.

Rebecca Grey, a former recruitment agency worker, has been fined after pleading guilty to the offence of unlawfully obtaining data. Ms Grey emailed the personal data of approximately 100 clients and potential clients to her personal email address as she was leaving to start a new role at a rival recruitment company. Ms Grey pleaded guilty under the Data Protection Act 1998, s 55, and was fined £200, and ordered to pay £214 prosecution costs and a £30 victim surcharge.

19/01/2017

Subject: Selling and Marketing/Sale of goods

Travel company liable for contaminated food and drink on all-inclusive holiday

Source: British and Irish Legal Information Institute (BAILII)

Wood and another v TUI Travel plc (trading as First Choice)

Number: [2017] EWCA Civ 11

The claimants (Mr and Mrs Wood) purchased an all-inclusive holiday in the Dominican Republic including hotel accommodation from the defendant travel company. They suffered acute gastroenteritis on the holiday and brought a claim for damages under an implied condition in s 4(2) of the Supply of Goods and Services Act 1982 (the 1982 Act) that where property in goods was transferred pursuant to a contract in the course of business, the goods had to be of 'satisfactory quality'. The consequences of the illness were serious and not transitory.

The judge found that the claimants’ illness had been caused by contaminated food or drink provided at their hotel and the supply constituted the supply of goods for the purpose of the 1982 Act s 4(2) of the 1982 Act because it had been contaminated. Mr Wood was awarded damages which included £16,500 for pain, suffering and loss of amenity and Mrs Wood £7,500.

The defendant appealed against the finding of liability under the 1982 Act on the basis that the contract had not contemplated that property in the food and drink would be transferred to the claimants. It claimed that the consumption of food and drink provided at the hotel involved no transfer of property in that food or drink.

The defendant argued that there was no contract by which the defendant had agreed to transfer property in food and drink to the claimants. All that the defendant had done was to provide a licence to its all-inclusive customers to consume food and drink with no question of their ever becoming the owners of what was on their plates or in their glasses. When consumed by customers the food was destroyed. The provision of food was a service and but one component of a contract by which the defendant had agreed to supply a variety of services.

The Court of Appeal dismissed the appeal, ruling that in the absence of any express agreement to the contrary, when customers ordered a meal property in the meal was transferred to them when it was served. The same was true of a drink served by the establishment. That was so whether the transaction had no other components, for example in a restaurant or café, or the transaction provided other services, the most usual being accommodation. The fact that the food and drink might be laid out in a buffet to which customers helped themselves could make no difference. When the customer helped himself to the meal or poured himself a drink property in the fare became that of the customer

[Original text of the case report supplied by BAILII gratefully acknowledged. Crown copyright: contains public sector information licensed under the Open Government Licence v3.0
Legaleze is solely responsible for the above text which is a summary only and the full report should be read.]

19/01/2017

ASA reveals 2016’s most complained about ads

Subject: Selling and Marketing

Source: Advertising Standards Authority (ASA)

The UK’s top 10 most complained about ads for 2016 included ads featuring dancing businessmen in shorts and high heels, blind footballers kicking cats, and Scottish football fans singing about wanting the England team to lose. However, none of the Top 10 ads were ruled by the Advertising Standards Authority (ASA) as having crossed the line between bad taste and offence, and none were banned.

All the Top 10 ads were complained about on grounds of offence, the ASA announced, rather than being misleading, which applies to the majority of complaints—more than 70%—the ASA is asked to rule on. Nine of the ten were TV ads.

The three most complained about ads of 2016 were:

* 1Moneysupermarket.com Ltd—a ‘bodyguard’ dressed in a suit and sunglasses, danced at a rally. Complaints said his dance moves were overtly sexual and not suitable to be seen by children. The ASA judged the ad would not cause serious or widespread offence to viewers, and the ad was likely to be interpreted in a humorous manner.

* 2Moneysupermarket.com Ltd—the ad showed two groups of men, one group dressed suit jackets, shorts and high heels, and the other dressed in fluorescent jackets and hard hats, engaging in a gang dance-off. The complaints said the ad was offensive and overtly sexual, and some said it could be seen to be homophobic. The ASA concluded it was unlikely to provoke serious or widespread offence or to be seen as encouraging harmful discriminatory behaviour.

* 3Match.com International Ltd—the ad showed women arriving home to her female partner who removed her top and passionately kissed her. More than 800 complainants said the ad was sexually explicit and inappropriately scheduled. The ASA judged the ad would not cause serious or widespread offence and was not scheduled around children’s programmes.

ASA comment

ASA Chief Executive Guy Parker said: ‘The ads that attract the highest number of complaints are often not the ones that need banning. Our action leads to thousands of ads being amended or withdrawn each year, mostly for being misleading, but there wasn’t one misleading ad in the Top 10.’

 

18/01/2017

Supreme Court partially allows wheelchair user’s disability discrimination claim

Subject: Selling and marketing/Discrimination

Source: Supreme Court

FirstGroup Plc v Paulley)

[2017] UKSC 4]

Mr Paulley was a wheelchair user was refused a place on a bus when a woman with a sleeping child in a pushchair refused to move from the space designated by a notice: “Please give up this space for a wheelchair user”. The driver did not order the woman to move and did not allow Mr Paulley to use an ordinary seat because there was no means to secure his w heelchair safely.

Mr Paulley issued proceedings against FirstGroup for unlawful discrimination on the ground of his disability, claiming that FirstGroup had failed to make “reasonable adjustments” to its policies contrary to section 29(2) of the Equality Act 2010. The Recorder found that FirstGroup operated a “provision criterion or practice” (“PCP”) consisting of a “policy… of ‘first come first served’… whereby a non-wheelchair user occupying the space on the bus would be requested to move, but if the request was refused nothing more would be done.” This placed Mr Paulley and other wheelchair users at a substantial disadvantage by comparison with non-disabled passengers. There were reasonable adjustments that FirstGroup could have made to eliminate the disadvantage: (i) altering the Notice positively to require non-disabled passengers occupying a space to move if a wheelchair user needed it; and (ii) adopting an enforcement policy requiring non-disabled passengers to leave the bus if they failed to comply.

The Recorder found in favour of Mr Paulley and awarded him £5,500 damages. FirstGroup’s appeal was unanimously allowed by the Court of Appeal which held that it was not reasonable to hold that FirstGroup should adjust its policy so that its drivers required, rather than requested, non-wheelchair users to vacate a space when it was needed by a person in a wheelchair, and then to positively enforce that requirement with the ultimate sanction being removal from the bus.

The Supreme Court unanimously allowed Mr Paulley’s appeal to the limited extent that FirstGroup’s policy requiring a driver to simply request a non-wheelchair user to vacate the space without taking any further steps was unjustified. Where a driver who has made such a request concludes that a refusal is unreasonable, he or she should consider some further step to pressurise the non-wheelchair user to vacate the space, depending on the circumstances. This might in some cases include halting the bus in order to ‘shame’ the person refusing to give up the place.

Under section 29 of the 2010 Act, as a “public service provider”, FirstGroup must not discriminate against a person requiring its services by not providing the person with the service, and it must make “reasonable adjustments” to avoid substantial disadvantage to disabled persons [20-26]. An absolute rule that any non-wheelchair user must vacate the space would be unreasonable: there are many circumstances in which it could be unreasonable to expect a non-wheelchair user to vacate a space, and even more, to get off the bus, even where the space is needed by a wheelchair user [46-48]. Even a qualified rule (i.e. that any non-wheelchair user must vacate if it is reasonable) implemented through mandatory enforcement would be likely to lead to confrontation with other passengers (not least where the non-wheelchair user vacating the space affected other travellers) and delay [50-51]. Passengers are not clearly subject to a statutory obligation to comply with a policy relating to the use of the space, and would not appear to be under such an obligation to get off the bus if they fail to do so [52].

So far as damages are concerned, the Recorder did not specifically consider whether, if FirstGroup had simply required its drivers to be more forceful, there was a prospect that it would have made a difference in this case. It was therefore not possible to conclude that there would have been a real prospect that such an adjustment would have resulted in Mr Paulley not being placed in the disadvantage that he was, and so an award of damages was not possible [60-61].

[ Crown copyright: contains public sector information licensed under the Open Government Licence v3.0
Legaleze is solely responsible for the above text which is a summary only and the full judgment should be read. References to paragraph numbers are to the full Supreme Court judgment]

 

17/01/2017

ICO imposes GBP 40,000 penalty on Bognor Regis IT firm

Subject: Selling and Marketing/Direct marketing

Source: Information Commissioner’s Office (ICO)
https://ico.org.uk

Under regulation 21(1)of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”), a person may not use public telephone or other electronic communications services for direct marketing purposes:

* if the line called belongs to a subscriber who has previously notified the caller that such calls should not for the time being be made on that line; or

 * if the number of the called line is listed in the register kept under regulation 26 of PECR , i.e. the Telephone Preference Service (“TPS”).(see Telephone Preference Service above). Calling a number which has been listed on the TPS register for less than 28 days preceding that on which the call is made is not a contravention of the PECR.

IT Protect Ltd of Bognor Regis has been fined GBP 40,000 by the Information Commissioner’s Office (ICO) for breaching privacy law by calling people registered with the Telephone Preference Service (TPS). This is the first fine for nuisance calls issued by the ICO since it took over management of the TPS.

IT Protect had purchased a list of people and phone numbers, many of whom were elderly people, from another firm. It then made calls to these numbers to try to sell a call blocking device. The ICO’s investigation, which involved support from West Sussex Trading Standards, found IT Protect had not carried out sufficient checks to ensure that the people on the list had given consent to receive the calls.

 

11/01/2017

BA fined over vibration injuries; Crisp maker over worker’s hand injury

Subject: Health and Safety at Work

Source: Health and Safety Executive (HSE)
http://press.hse.gov.uk

An investigation by the Health and Safety Executive (HSE) found that British Airways PLC (BA) failed to make a suitable and sufficient risk assessment to control the effect of exposure by workers to the vibrations from hand held tools. Employees working in the composite workshop at the Glasgow base who in the course of their work used hand held power tools to carry out repairs on various components were exposed to the risk of Hand Arm Vibration (HAVs) .

British Airways PLC pleaded guilty to breaching Regulation 5 (1) of the Control of Vibration at Work Regulations (2005) and was fined GBP 6,500.

An agency worker had been clearing a blockage of material from a machine on a crisp manufacturing production line when his hand came into contact with shears. He lost three fingers on his right hand which were severed below the first knuckle. The HSE’s investigation found that the guard on the machine was not secured at the time of the incident and the manufacturer had not implemented a formal monitoring system on the machine to ensure that all guards were in place and secure before the machine was started

Tayto Group Ltd pleaded guilty to breaching the Provision and Use of Work Equipment Regulations 1998, SI 1998/2306, reg 5. It was fined GBP 33,000 plus costs.

05/01/2017

ASA rules.Lastminute.com ad misleading on price

Subject: Selling and marketing/Advertising Codes

Source: Advertising Standards Authority (ASA)

The Advertising Standards Authority has upheld Lastminute.com brought by a consumer customer who was asked to pay an extra amount for a hotel and flight package to New York shortly after she had already paid the advertised price.

03/01/2017

Law firm succeeds in appeal against GBP 2m damages ruling

Subject: Negligence

Source: British and Irish Legal Information Institute (BAILII)

Wright v Lewis Silkin LLP

The Court of Appeal allowed part of an appeal by Lewis Silkin LLP against an award for damages for professional negligence. GBP 2m of the award, which arose out of the claimant's 20% chance of securing voluntary payment of a judgment debt, was too remote and should therefore be set aside.

[Original text of the case report supplied by BAILII gratefully acknowledged. Crown copyright: contains public sector information licensed under the Open Government Licence v3.0
Legaleze is solely responsible for the above text which is a summary only and the full report should be read.]

03/01/2017

Charity Commission publishes findings from REDAID inquiry

Subject: Charities (EW)

Source: The Charity Commission

Following the removal of REDAID from the charity register in December 2011, the Charity Commission has announced its conclusion that there were serious governance and management failings at the charity and that there was evidence of serious mismanagement and misconduct within the charity and that the trustees had failed in their duties and responsibilities.

 

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