GC Horizon Scanner - Winter 2019

Are SMEs leaving the door ajar allowing cyber-criminals to sneak in?

A dramatic increase in cyber-attacks has seen an upwards trend in SMEs looking to place blame on their directors or IT failure. It is crucial that directors of SMEs are aware of IT/cyber risks and the importance of implementing and enforcing measures to keep their business secure. This article considers the potential exposure for directors and the steps directors may take to protect themselves.

Class Actions in the English Courts – Update

While class-actions are not (yet) a recognised key feature of the English legal system, as they are in the US or Australia, pressure is growing in the UK to allow collective or group litigation which promote consumer protectionism or access to justice. This article looks at three recent cases which show the courts increasing acceptance of class-action style litigation where consumers have had their rights infringed by corporations.

Business Crime - SFO issues Corporate Co-operation Guidance

Since the introduction of Deferred Prosecution Agreements in the UK in 2014, and the inexorable move towards criminalising corporate wrongdoing, the Boards of corporates and their legal advisers have strived to obtain guidance and clarity on how, when faced with the discovery of possible criminal wrongdoing within their organisation, they should deal with it. Cooperation with the the Serious Fraud Office is key. In August 2019, the SFO issued its Corporate Co-operation Guidance setting out what is and what is not cooperation. 

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SPA disputes: Guidance on contractual notification clauses, fair disclosure and calculating damages

This article reviews the recent judgment in 116 Cardamon Limited v MacAlister which produced findings on a number of issues relevant to claims for breaches of warranty under Share Purchase Agreements (SPAs), and illustrates the uncertainty and cost which so often come with making such claims and the associated benefits of Warranty & Indemnity insurance.

The #MeToo Movement: Changing the workplace forever

Movements such as #MeToo and #TimesUp have meant harassment claims have extended beyond employment practices liability into D&O liability insurance, and both governments and employers are considering significant changes. 

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Race discrimination: The dangers of not giving an honest reason for a dismissal

While it may be tempting to use redundancy as a reason for dismissal because it is a “no fault” dismissal and may be less likely to trigger ill-feeling or even a claim, if redundancy is not the genuine reason for the dismissal, mislabelling it as such can be dangerous. 

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Legal Privilege: Cherry picking the waiver of legal privilege

Employers who decide to waive legal privilege over documents that support their case in an employment dispute risk inadvertently waiving privilege over other documents which may damage their case.

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Whistleblowing: Is an employee protected as a whistleblower if the disclosure is made partly out of self-interest?

An employee who makes a disclosure partly out of self-interest may be protected as a whistleblower if the employee also reasonably believes the disclosure to be made in the public interest. 

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Are employers liable for employees' offensive social media posts?

This article considers whether employers are vicariously liable for the actions of employees who post offensive material on social media sites. The Employment Tribunal in Forbes v LHR Airport concluded that the employee had not been acting “in the course of her employment” when she posted racist images on Facebook from her own computer equipment, in her own time, outside of work.

PropTech: The Retail Environment

Technology is evolving at a rate far greater than many retailers and wider businesses can adapt to, and apply in a strategically coherent manner. Those with the vision to align goals, technology and buildings are likely to become market leaders. Read more about how technology is impacting the retail environment here.

Climate change for senior managers - Deadline for PRA risk management compliance passes

All firms are vulnerable to risks associated with climate change, whether or not they are operating in an environmental sector. It is now a PRA requirement that financial institutions develop their Senior Management regime to address and manage the financial risks of climate change. Senior managers may be held to account for non-compliance. 

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