report retail - tlt - 2015 - retail risk report

8/17/2019 Report Retail - TLT - 2015 - Retail Risk Report

http://slidepdf.com/reader/full/report-retail-tlt-2015-retail-risk-report 1/18

NEXTPREVIOUSBACK TO TIMELINE

RETAIL RISK REPORTKey legal and regulatory changes in 2015



2

Contents

Key regulatory changes

Retail regulatory timeline

Reform to EU Brussels Regulation on cross-jurisdictional disputes

Export sanctions update

Consultation on sentencing for H&S offences closes

Magistrates’ Court given power to impose unlimited fines for regulatory offences

Shared parental leave

Pension freedoms

New CDM Regulations come into force

Groceries Code Adjudicator granted power to fine supermarkets

Government tightens privacy laws for unsolicited marketing communications

Cap on interchange card fees

Northern Ireland prize promotions

New EU Consumer Product Safety Regulations expected

EU consumer dispute resolution legislation

EU to pass new Cyber Security Directive

UK deadline for implementing collective redress principles

Restriction on backdated holiday pay claims

CAP Code consultation on sales promotions

UK deadline for implementing EU cyber crime law

Tax-free childcare scheme to be introduced

Single use plastic bag charges

The Consumer Rights Act

Deadline for compliance with Energy Savings Opportunity Scheme (ESOS)

New EU Data Protection Regulation proposals to be passed

Zero hours contracts

About us

Foreword 3

5

5

6

6

7

7

8

8

9

9

10

10

11

11

12

12

13

13

14

14

15

15

16

16

17

4



3

Foreword

In January 2015 we published our

second Retail Growth Strategies

Report, which provided a windowinto the thinking and intentions of

100 top UK retailers. As part of that

report, we asked retailers about their

legal and regulatory concerns for

2015 and found that cyber security,

changes to consumer rights and data

protection came out on top.

Building on this research, we have

developed this Retail Risk Report,

which provides a single point of

reference to help retailers understandthe legal and regulatory changes

taking place in the year ahead.

The report also provides some

very practical guidance to help

you prepare for these changes.

So what should retailers be looking

out for in 2015? Well, the year

is already shaping up to be very

eventful, with lots of regulatory

changes due to come into force.

Consumer rights law remains a

particularly hot topic for retailers.

At the end of 2014, new information

requirements in consumer contracts

were introduced and consumers were

given the right to take civil action

against traders for misleading

trading practices.

In October 2015 the Consumer Rights

Act will come into force, which will

enhance the rights of consumers. Weare also expecting other changes to

the consumer protection landscape

including the UK implementation of

EU regulations governing consumer

dispute resolution and product safety.

We are also expecting new EU Data

Protection Regulation proposals to be

passed towards the end of the year.

Given the importance of data to most

retailers, this is likely to have a major

impact and it’s vital that you startpreparing as soon as possible.

There are also a number of major

employment-related regulatory

changes including the introduction

of new shared parental leave rules

and a cap on claims in respect of

retrospective holiday pay.

We hope you find this report helpful

as you plan for the year ahead. If

you have any questions about thesechanges or would like help preparing

for them then please do get in touch.

Kerry Gwyther

Partner and Head of Regulatory, TLT

T 0333 006 0155

E [email protected]



4

Retail regulatory timeline for 2015Click on the links below to find out more about each change.

HIGH MEDIUM LOW

IMPACT ON RETAILERS

JANUARY 2015

Reform to EU Brussels

Regulation on cross-

jurisdictional disputes

APRIL 2015


12 MARCH 2015

Magistrates’ Court

given power to impose

unlimited fines for

regulatory offences

JANUARY 2015


18 FEBRUARY 2015

Consultation on sentencing

for H&S offences closes

5 APRIL 2015


6 APRIL 2015

Pension freedoms

6 APRIL 2015


6 APRIL 2015

Groceries Code Adjudicator granted

power to fine supermarkets

6 APRIL 2015

Government tightens privacy

laws for unsolicited marketing

communications

JULY 2015

EU to pass new Cyber

Security Directive

9 JULY 2015

EU consumer dispute

resolution legislation

JULY 2015

Restriction on backdated

holiday pay claims

JULY 2015

UK deadline for implementing

collective redress principles

4 SEPTEMBER 2015

UK deadline for implementing

EU Cyber crime law

SEPTEMBER 2015

Tax-free childcare scheme

to be introduced

MID-LATE 2015

Northern Ireland prize

promotions

MID-LATE 2015

New EU Consumer

Product Safety

Regulations expected

MID-LATE 2015

CAP Code consultationon sales promotions

1 OCTOBER 2015


OCTOBER 2015


DECEMBER 2015

Deadline for compliance

with ESOS

LATE 2015 OR EARLY 2016New EU Data Protection Regulation

proposals to be passed



5

Reform to EU Brussels Regulation on cross-jurisdictional disputes


Key regulatory changes

JANUARY 2015 TRADE IMPACT ON RETAILERS

Medium

JANUARY 2015 TRADE IMPACT ON RETAILERS

High

What is changing?

The 2001 Brussels Regulation, which determines

matters of jurisdiction and enforcement of

judgments within the EU, was replaced by the

Recast Brussels Regulation on 10 January 2015.

The default rule under the 2001 Regulation

that defendants should be sued in their home

courts remains unchanged. However, there are a

number of key changes, including:

• A consumer from a non-EU country will

now have the choice of whether to bring

proceedings in the courts of that non-EU

country or in the courts of the domicile/place

of establishment of the trader.

• Employees will also have a wider choice of

where to bring an action in cross-border

employment disputes.

• A Member State court judgment will be

immediately enforceable in another Member

State court without the need to obtain a

declaration of enforceability.

What is changing?

The US and EU have already imposed an array of

sanctions on Russian individuals and businesses

in response to the annexation of Crimea and the

crisis in eastern Ukraine.

In a tit-for-tat move, Russia has banned theimport of certain food products from the US, the

EU, Norway, Canada and Australia.

Both the US and the EU could impose additional

sanctions if the situation in the Ukraine continues

to deteriorate.

What should retailers do to prepare?

• Familiarise yourself with the revised Regulation

if your company is, or could be, involved in

any cross-border disputes.

• Be prepared for consumers and employers

to take advantage of the wider choice of

jurisdiction granted to them under the

Recast Brussels Regulation.

• Ensure that, where possible, the same

jurisdiction provisions are incorporated into all

related agreements with suppliers to avoid a

dispute about which country’s courts should

have jurisdiction to hear disputes arising out

of the agreements.


The evolving sanctions position heightens the

need for any businesses with a direct or indirect

Russian nexus to monitor their overseas trade

relations closely in case they are caught by the

current regime or any changes.

It is vital that exporters routinely screen their

current and potential trading parties against

sanctions lists. This includes a consideration of

whether parties are “owned or controlled” by

sanctioned entities.

Consider your supply chain – how is it affected

by the sanctions, do you need to put in place

contingency measures now in case the situation

worsens, are you exposed contractually if you

cannot import/export due to the sanctions?

Edmund Fiddick

Partner

T 0333 006 0208

E [email protected]

Emma Flower

Partner

T 0333 006 0264

E [email protected]



6

Consultation on sentencing for H&S offences closes

18 FEBRUARY 2015 HEALTH & SAFETY IMPACT ON RETAILERS

Medium

What is changing?

The way that companies are fined for breaching

health and safety laws is due to change in 2015.

The draft sentencing guidelines cover health and

safety offences, corporate manslaughter and food

safety and hygiene offences.

The main change in the draft is that the level of

fines will be linked to annual turnover. This means

that larger companies can expect to pay much

higher fines than smaller companies for comparable

offences. It is also expected that the level of fines

will increase across the board.

The public Consultation closed on 18 February

2015, with the results to be published later

in spring.


When then the proposed guidelines are adopted they

will not change the law, just the way companies

are sentenced.

However, retailers with large turnovers may wish to

re-assess the risks associated with health and safety

breaches given that the fines involved are now likely

to be much higher.

Under the new sentencing guidelines, the costs

of carrying out periodic health and safety audits

throughout your company are likely to be minor

compared to the costs if something goes wrong.

The proposals are expected to be adopted, subject

to further amendments, later in 2015.

Duncan Reed

Associate

T 0333 006 0742

E [email protected]

Magistrates’ Court given power to impose unlimited

fines for regulatory offences

12 MARCH 2015 IMPACT ON RETAILERS

High

What is changing?

The upper limits on most fines that can be

imposed in the Magistrates’ Court have been

removed. The new rules apply to a number of the

main regulatory risks in the retail sector such asconsumer protection and product liability law.

Previously, fine levels in the Magistrates’ Court

were controlled by five different statutory levels

(£200, £500, £1,000, £2,500 and £5,000). In

some cases higher fines beyond this scale were

possible, for example £20,000 for some health

and safety offences and £50,000 for certain

environmental offences.

This has now changed. For all offences committed

after 12 March 2015, the limits on all fines of

£5,000 and above have been scrapped.

Any statutory limits on fines of below £5,000 for

less serious offences (ie levels 1-4 offences) willremain in force.


Retailers need to be aware of the uncertainty created

by the new rules with regard to the level of sentencing

of many relevant regulatory offences. Until now,

organisations have known what the ‘worst case scenario’would be in terms of fines in the Magistrates’ Court

because of the statutory cap on fines.

The changes mean that Magistrates now have the

power impose unlimited fines for breaches of the

following regulatory offences:

• consumer protection law;

• liability for defective products;

• waste management offences;

• product labelling law; and

• all health and safety law, including fire safety

and incidents where employees are injuredat work.

The change emphasises the need for retailers

to ensure legal compliance in these areas.

REGULATORY

Duncan Reed

Associate

T 0333 006 0742

E [email protected]



7


Pension freedoms

5 APRIL 2015

6 APRIL 2015

HR

PENSIONS

IMPACT ON RETAILERS

Low

What is changing?

From 5 April 2015, parents are entitled to take

Shared Parental Leave (SPL). SPL is available

in respect of children whose expected week of

childbirth (EWC) begins on or after 5 April 2015.

The SPL scheme also applies identical provisions

to the adoption process.

A mother is able to end her maternity leave

and share the untaken leave with the other

parent. SPL can either be taken consecutively or

concurrently by parents. Parents can also request

periods of discontinuous leave.

Parents are not obliged to take SPL and 52

weeks of maternity leave shall remain the default

position. However, additional paternity leave isno longer available.

Eligible parents are entitled to statutory shared

parental pay which closely matches the

maternity pay scheme.

What is changing?

From 6 April 2015, individuals over the age

of 55 are allowed full access to their defined

contribution (DC) pension pots.

Previously, pensioners could only purchase

annuities from insurance providers or withdrawlimited sums from their savings each year.

Now:

• Provided pension scheme documents allow the

flexibilities, individual members of DC schemes

can access all their savings at any time, subject

to taxation at their marginal rate. 25% of any

lump sum withdrawals will be tax free.

• If increased flexibility isn’t offered in a

member’s current scheme, individuals can apply

to transfer to a different scheme which does.


The key is to get policies up to date and to ensure

that HR and managers are ready to deal with requests.

Employers operating enhanced maternity pay

schemes need to consider whether enhanced

shared parental pay will be offered.


Employers need to:

• Decide how much flexibility to offer members.

• Check current pension scheme arrangements

to consider:

• if the scheme documents allow the new

flexibilities to be implemented; and

• whether these documents need to be

amended to include these changes.

• Decide whether to allow any defined benefit

(DB) scheme members to transfer their

savings to a DC scheme to benefit from the

new flexibilities.

• Ensure DB scheme members with pots over

£30,000 receive free independent guidance

before agreeing any transfers.

• Prepare updated communications for members

and be ready to answer their queries.

Richard Brennan

James Dean

Associate

T 0333 006 0684

E [email protected]

Partner

T 0333 006 0717

E [email protected]

IMPACT ON RETAILERS

Medium



8


Groceries Code Adjudicator granted power to fine supermarkets

6 APRIL 2015

6 APRIL 2015

HEALTH & SAFETY

SUPERMARKETS

IMPACT ON RETAILERS

Low

IMPACT ON RETAILERS

Low

What is changing?

The amended Construction (Design and

Management) Regulations 2015 came into force

on 6 April 2015.

• The headline change is the decision to scrap

the role of CDM co-ordinator and replace it

with a newly defined role of Principal Designer.

• The new regime will also apply for more short-

term projects, including many which would

have been deemed too small to trigger the

requirements under the previous

CDM Regulations.

• In addition, there are enhanced duties under

the Regulations for “Clients”, which could

include retail developers.

What is changing?

Legislation giving the Groceries Code Adjudicator

(GCA) the power to impose fines of up to 1% of

a supermarket’s annual turnover (which could

amount to hundreds of millions of pounds) came

into force on 6 April 2015.

The GCA, which was set up in January 2013 to

ensure that the UK’s 10 major supermarkets treat

their suppliers fairly, has previously only been

able to ‘name and shame’ grocers that breach the

Groceries Supply Code of Practice (the Code).

There has been criticism that the legislation does

not act retrospectively (meaning years of trading

activity will go unchecked) and that the GCA

may not have enough resources to investigate

possible breaches of the Code properly.

Consequently, suppliers may decide that the

best way to seek redress against a retailer that

has breached the Code is by bringing their own

arbitration claim; however, suppliers’ appetite

to challenge retailers directly remains to be seen.


The requirements will be of note for any retailer

involved in construction projects.

• If a retailer is heading-up a large project

(for example constructing a new retail premises),

it will need to consider the changes in rules

for the appointment of Principle Designers.

• Retailers for whom construction works are being

carried out should also consider their enhanced

duties as the Client under the Regulations.

• Even if a retailer is carrying out a minor project

(for example a refurbishment or extension),

the CDM Regulations might be triggered under

the new rules if more than one contractor

is engaged.


The major supermarkets have already been

taking steps to ensure compliance with the Code

including appointing a code compliance officer

and giving training to staff.

Moreover, the recent legislation and increasedpublic scrutiny may encourage supermarkets to

ramp up their compliance efforts.

Duncan Reed

Miles Trower

Associate

T 0333 006 0742

E [email protected]

Partner

T 0333 006 0574

E [email protected]



9

Government tightens privacy laws for unsolicited

marketing communications


6 APRIL 2015

APRIL 2015

DATA PROTECTION

PAYMENT SERVICES

IMPACT ON RETAILERS

Medium

IMPACT ON RETAILERS

Medium

What is changing?

On 6 April 2015 the Data Protection Act

1998 was amended to make it easier for the

ICO to impose financial penalties in relation

to unsolicited direct marketing calls, texts

and emails.

The previous legislation had been criticised by

privacy campaigners who said it was too difficult

for the ICO to fine organisations guilty of making

unsolicited marketing communications because

of the requirement to prove the conduct caused

“substantial damage or substantial distress.”

Under the amended legislation, this requirementhas been dropped.

In addition, the government has confirmed that

it will be looking at whether the powers the ICO

has to hold to account board level executives are

sufficient or whether more needs to be done.

What is changing?

The European Parliament voted in favour of

Regulation on multilateral interchange fees for

card-based payment transactions in March 2015.

The Regulation plans to introduce a cap on

interchange fees that banks charge retailersto process payments. The cap is due to apply

to both cross-border and domestic card-based

payments.

For debit card transactions the cap will be 0.2%

of the transaction value and for credit card

transactions the cap will be 0.3%.

The caps will take effect 6 months after the

Regulation comes into force.


Retailers who send out mass electronic

communications to members of the public when

promoting products or sales need to think carefully

about the risks involved. Are you relying on consent

that has been legitimately obtained?

What the changes mean is that if a large number

of marketing communications are sent out without

valid consent, a retailer could be liable for

monetary penalties even if no harm or distress

is actually caused.

This should be understood in the context of recent

findings by the Nuisance Calls Task Force, whichhighlighted that too many organisations are relying

on consents that have been illegitimately obtained,

for example because the consumer was confused

and did not know what they were signing up for.

Consents obtained through third parties without

checking whether or not they are valid is also

a problem.

Dominic Gilmore

Associate

T 0333 006 1414

E [email protected]

Alison Deighton

Partner

T 0333 006 0160

E [email protected]


Retailers need to check that the banks processing

their payments apply the new caps on interchange

fees appropriately.

At a European-wide level the expectation is that

this cap will result in significant cost-savings forretailers. In conjunction with the prohibition

on surcharging on these types of card (as being

brought in under the Payment Services Directive

2), it is expected to lead in turn to cheaper goods

and services for consumers.

However, the banks will have reduced revenue,

the shortfall of which may not be entirely offset

by the expected increase in payment volumes.

Consequently, the banks may look for other

potential revenue streams.



10

Northern Ireland prize promotions

MID-LATE 2015 ADVERTISING AND PROMOTIONS IMPACT ON RETAILERS

Low

What is changing?

Many retailers will be aware that running prize

promotions in Northern Ireland is complicated

by the country’s strict anti-gambling laws. The

rules prohibit entries into a prize draw that are

contingent on the entrant making a purchase.

Alternative ‘free entry’ mechanics have to be

provided in Northern Ireland.

However, following a public consultation,

Ministers have announced that this rule may be

changed to bring Northern Irish rules in line with

the rest of the UK.


Although the changes have not yet been finalised,

it appears likely that the rules in Northern Ireland

will be relaxed.

This is good news for retailers who of course want

their prize promotions to have as broad a territorial

scope as possible. Assuming the proposed changes

go through, it will not be necessary to adapt the

entry mechanics used in England, Scotland and

Wales for Northern Ireland.

Duncan Reed

Associate

T 0333 006 0742

E [email protected]

New EU Consumer Product Safety Regulations expected

MID-LATE 2015 PRODUCT LIABILITY

What is changing?

The Consumer Product Safety Regulations

(CPSRs) are currently going through the European

Parliament but are expected to come into effect

around mid-late 2015.

The new regulations will change the rules interms of product labelling and traceability.


The CPSRs introduce certain requirements for

manufacturers, for example ensuring that products

are marked with a batch number and place of origin,

to assist with identification and traceability.

However, these requirements will impact onretailers too.

• Retailers will have to check that relevant markings

are present on the products they supply.

• Focusing on your suppliers, are the products

your organisation buys compliant with the

CPSRs? Do you, and your suppliers, have

sufficient procedures in place to evidence this?

Duncan Reed

Associate

T 0333 006 0742

E [email protected]

IMPACT ON RETAILERS

Medium



11

EU consumer dispute resolution legislation

9 JULY 2015 CONSUMER PROTECTION IMPACT ON RETAILERS

Medium

What is changing?

On 9 July 2015 the new Alternative Dispute

Resolution (ADR) Directive comes into force in

the UK.

This lays down the minimum standards for

consumer ADR schemes and proposes to createa centralised system to resolve disputes if a

trader’s ADR scheme is inadequate.

It is also important to be aware of the Online

Dispute Resolution (ODR) Directive further on the

horizon. This is expected to come into effect in

January 2016.

The ODR Regulation aims to provide a free

EU-wide system for resolving disputes between

consumers and traders online.


If you are a retailer, you need to check whether

your own consumer dispute resolution procedures

comply with the minimum requirements in the

ADR Directive.

Retailers that sell products online across Europealso need to familiarise themselves with the

online dispute resolution mechanisms that will be

introduced through the ODR Directive next year.

Kerry Gwyther

Partner

T 0333 006 0155

E [email protected]

CAP Code consultation on sales promotions

MID-LATE 2015 ADVERTISING AND PROMOTIONS IMPACT ON RETAILERS

Low

What is changing?

The Committee of Advertising Practice (CAP)

consulted on changing the rules for sales

promotions in December 2014. The amended CAP

Code is likely to come into force later in 2015.

The existing CAP Code places an onerous burden

on promoters in terms of ensuring they have

sufficient stock to meet demand before running a

promotion. At present, promoters not only have to

make a reasonable estimate of customer demand

before running a promotion, they also have to

show they are capable of meeting that demand.

However, CAP is likely to dilute this requirement

by enabling promoters to comply with the Code

by giving sufficient warning to customers aboutlimited availability.


Assuming the proposed changes are adopted,

they will make life easier for retailers when

running promotions involving limited stock.

However, if retailers are unable to accurately

predict what the level of demand will be, they

must make sure that the advertisement is

sufficiently clear as to the extent of availability

and likely demand of stock.

For example, the advertisement could include a

statement such as “limited availability - less than

5,000 items available.”

Broad statements such as “subject to availability”,

however, are unlikely to be enough to comply

with the CAP Code.

Kerry Gwyther

Partner

T 0333 006 0155

E [email protected]



12

EU to pass new Cyber Security Directive

JULY 2015 CYBER SECURITY IMPACT ON RETAILERS

Medium

What is changing?

The EU Cyber Security Directive is expected to be

passed by the EU in July 2015.

The Directive seeks to impose minimum

obligations on certain “market operators” to

harmonise and strengthen cyber security across

the EU. This could apply to energy suppliers,

e-commerce platforms and app stores.

Some of the obligations placed on market

operators include the requirement to take steps

to prevent cyber attacks and to report cyber

security breaches to a regulator such as the

Information Commissioner’s Office.


Although the Directive is still at draft stage, the

requirement to have in place procedures to combat

cyber crime and report attacks to a regulator could

apply to retailers if a wide definition of e-commerce

platforms is adopted.

In addition, it is thought that the application of

the Directive to ‘food supply chain’ operatives

could potentially bring supermarkets and other

food retailers within the scope of the new rules.

Once adopted, Member States will have 18 months

to enact national implementing legislation,

meaning the Directive is expected to come into

force in the UK around the beginning of 2017.

However, retailers should keep an eye on

developments now, especially if complying with

the Directive will involve upgrading network

security systems.

Alison Deighton

Partner

T 0333 006 0160

E [email protected]

UK deadline for implementing collective redress principles

JULY 2015 CONSUMER PROTECTION IMPACT ON RETAILERS

Medium

What is changing?

Back in July 2013, The European

Commission released a series of non-binding

recommendations requiring EU Member States

to introduce collective redress mechanisms to

enable large groups of consumers to bring group

damage claims against companies.

Although the recommendations are non-binding,

they reflect a desire within the EU to encourage

collective redress.

We may see more development in this area,

but for the time being the only area the UK

government intends to enhance its collective

redress procedures is in the area of competition

law. These changes will come into force with the

new Consumer Rights Act in October (see below).


Under the Consumer Rights Act, if a consumer

brings an action against a company for breach of

competition law, all other consumers of the same

class will automatically be deemed a part of that

action (and therefore entitled to damages) unless

they expressly ‘opt-out’. This exposes companies

to much greater damages.

Consumers can still bring collective actions against

companies in other areas too, but only if they all

expressly ‘opt-in’ to the claim.

Nevertheless, the recommendations of the

European Commission appear to signal a trend

towards greater use of collective redress, which

could embolden consumers to bring more group

actions, for example if they have been sold

defective products. An emergence of US-style

‘class action’ cases would represent a

significant change.

Retailers should monitor this carefully.

Duncan Reed

Associate

T 0333 006 0742

E [email protected]



13

UK deadline for implementing EU cyber crime law

4 SEPTEMBER 2015 CYBER SECURITY

What is changing?

The European Commission passed a Directive in

August 2013 requiring Member States to tighten

up cyber crime laws at national level across

the EU.

The UK has to implement the provisions of theDirective by September 2015.

In order to comply with the minimum standards

set out in the Directive, the UK may need to

create new criminal offences, for example in

relation to illegal access to information systems,

illegal data interference and illegal interception.


The UK government has yet to announce how it

plans to implement the EU Directive, but there is

a possibility it could impact upon retailers’ cyber

security policies.

For example, the government may introducelegislation requiring organisations to report cyber

security incidents to the authorities and ensure

that they have in place procedures to spot

suspicious activity by employees.

While it is too soon to say the extent to which

the new rules will apply to retailers, the Bank of

England has recently advised the government

that cyber security breaches are one of the main

risks to the UK’s economic stability, so there is still

a potential for the government to go beyond the

provisions of the Directive and bring in even

tougher cyber crime laws.

This is an area retailers should monitor closely.

Alison Deighton

Partner

T 0333 006 0160

E [email protected]

IMPACT ON RETAILERS

Medium

Restriction on backdated holiday pay claims

JULY 2015 HR IMPACT ON RETAILERS

Medium

What is changing?

Claims in respect of retrospective holiday pay will

be capped at two years.

This is an important development following some

recent case law which suggested that many

employers may have been incorrectly calculating

holiday pay. This is a particular problem for

retailers who may not have included overtime or

commission in holiday pay calculations.

The extent to which retrospective back pay

claims could be pursued remained an arguable

point.

This is welcome legislation as it offers some

certainty to employers provided that the claims

are not submitted before 1 July 2015.


Retailers need to correct holiday pay calculations

going forward. It will therefore be wise to undertake

a comprehensive review of pay practices to assess

potential financial liability.

Consideration should also be given to the

likelihood of back pay claims and the potential

liability. Many unions are raising the issue and are

seeking to negotiate back pay settlements. Care

should be taken before making any concessions to,

or deals with, the unions.

Richard Brennan

Associate

T 0333 006 0684

E [email protected]



14


1 OCTOBER 2015 ENVIRONMENTAL

What is changing?

In October, Parliament will implement EU law

introducing a mandatory 5p charge for single use

plastic bags. This law is already in force in Wales

and Scotland.

Organisations found to breach the newregulations can be fined.


The charges are mainly targeted at supermarkets,

but will apply to any retailer that provides single

use plastic bags.

• Does your company want to go down the route

of cutting out plastic bags altogether, as somehave done, or will you introduce the charges?

• Staff will need to be trained and informed about

the consequences of breaching the regulations.

Kerry Gwyther

Partner

T 0333 006 0155

E [email protected]

Tax-free childcare scheme to be introduced

SEPTEMBER 2015 HR IMPACT ON RETAILERS

Low

What is changing?

In autumn of this year the government’s new

tax-free child care scheme is scheduled to

commence. An employee will be able to open a

‘childcare account’ to pay someone to look after

their child or children. It will operate like a bank

account but for every £0.80 an employee pays

into the account the government will top up an

extra £0.20.

Unlike the existing employer-supported childcare

schemes, the tax-free childcare scheme does not

rely on employers offering it and any working

family can use it provided they meet the

eligibility criteria.

Existing employer-supported childcare schemeswill be closed to new entrants but will continue

to be available for employees registered with the

schemes for as long as the employer offers it or

until the employee decides to switch to the new

scheme. An employee will be required to give

three months’ notice to their employer if they

decide to switch to the government’s

childcare scheme.

Richard Brennan

Associate

T 0333 006 0684

E [email protected]

IMPACT ON RETAILERS

Medium


Although employers are not required to play a

role in the tax-free childcare scheme they can,

for example, as part of their wider ‘family friendly’

policies, offer support including:

• making employees aware of the new scheme

and referring them to Gov.UK for advice in tax

free childcare (for example, when an employee

is going on or returning from parental leave);

and/or

• making payments into an employee’s childcare

account direct using their net pay (payments

cannot be made from the employees gross pay)

or as additional payments. All additional

payments will be classed as earnings and,therefore, will be subject to tax and National

Insurance Contributions

Employers will also need to decide whether to

continue offering schemes for employees already

registered.



15

Deadline for compliance with Energy Savings

Opportunity Scheme (ESOS)

DECEMBER 2015 ENVIRONMENTAL IMPACT ON RETAILERS

Medium

What is changing?

5 December 2015 is the deadline by which an

organisation that falls within the scope of the

ESOS energy audit has to report its compliance

to the Environment Agency.


Large retailers that fall within the scope of ESOS

will have to:

• measure their total energy consumption overa 12 month period;

• conduct an energy audit to identify cost-effective

energy efficient recommendations; and

• obtain the necessary board level approvals

within the organisation.

The EA must be notified before 5 December once

the above requirements have been implemented.

Duncan Reed

Associate

T 0333 006 0742

E [email protected]

Kerry Gwyther

Partner

T 0333 006 0155

E [email protected]


OCTOBER 2015 CONSUMER PROTECTION IMPACT ON RETAILERS

High

What is changing?

The Consumer Rights Act will become the

centrepiece of UK consumer protection

legislation. It will:

• outline more clearly what a consumer’s rights

are in terms of quality of goods or services and

delivery of goods;

• codify the unfair terms that will be

unenforceable in business to consumer

contracts;

• outline consumer remedies for defective

products, including when a customer is able to

demand a repair, replacement, price reduction

or full refund;

• create new consumer rights in terms of digital

content that is defective or not as described;

and

• introduce new powers for consumers to bring

large-scale ‘class action’ claims for damages

against companies that are found to have

breached competition law.


If you are a retailer you need to:

• Be prepared for customers to assert their rights

citing the new legislation.

• Check customer return, refunds and repairs

polices. Do they comply with the remedies laid

down in the Act?

• Train customer service teams so that they

understand the new legislation before the Act

comes into force.

• Bear in mind that consumer damage claims

arising out of breaches of competition law are

likely to be much higher than before as the new

laws will make it easier to assemble hugeclasses of consumer litigants.

If your business sells digital content online, you

need to be aware of consumer rights in this area,

including the right for consumers to claim

compensation for damage to devices and/or lost

data after using or installing defective

digital content.



16

Zero hours contracts

New EU Data Protection Regulation proposals to be passed

TIMESCALES UNCERTAIN

EXPECTED LATE 2015 OR EARLY 2016

HR

DATA PROTECTION

IMPACT ON RETAILERS

High

IMPACT ON RETAILERS

High

What is changing?

The government proposes a prohibition on

employers restricting zero hour workers and

low income workers from working for other

businesses. It is also proposed that such

workers will have the right not to be subjected

to detriment as a result of working for otherbusinesses and there will financial penalties for

employers seeking to avoid the ban.

This is clearly a political issue and we would not

be surprised to see further changes or proposals

following the election. For example, Labour

proposes limiting the use of zero hour contracts

to short periods (12 weeks) if it forms a

new government.

What is changing?

The new EU Data Protection Regulation will

harmonise data protection rules across the EU.

Crucially, they also strengthen data protection

rights for individuals and increase the regulatory

burden on businesses.

The legislation has not yet been finalised, but key

changes are expected to include:

• introducing much higher maximum fines for

organisations that breach data protection rules;

• broadening the scope of personal data;

• making the appointment of a Data Protection

Officer (DPO) compulsory for larger

organisations; and

• making it a mandatory requirement for

organisations to notify a data protection

authority if it detects a data protection breach

(this would be the Information Commissioner’s

Office in a UK context).


Retailers should review their practice to assess

the use of zero hours contracts.

If retailers do still feel the need to prevent

workers undertaking work for other business then

alternative contract structures should be considered.


Retailers that have not yet started to think about

the new Data Protection Regulation need to do so

without delay.

The implication of the new laws are wide-ranging,

but the key points to be aware of are as follows:

• A full audit of data protection procedures should

be carried out to ensure that your organisation

is complying with the new laws. If you don’t

have a DPO, should you have one? Is your

organisation processing personal data in line

with the new Regulation? Do you have

procedures in place for notifying the ICO

following data protection breaches?

• Organisations are facing the prospect of

receiving fines of up to €100m or 5% of their

global annual turnover for serious breaches,

putting data protection fines on a par with

anti-trust and anti-bribery sanctions. This has

been described a game-changer: retailers who

ignore data protection rules do so at their peril.

Richard Brennan

Alison Deighton

Associate

T 0333 006 0684

E [email protected]

Partner

T 0333 006 0160

E [email protected]



17

About us

Our multi-disciplinary team of retail lawyers has

a national reputation for advising on all aspects

of retail business and retail portfolio management.

TLT’s understanding of the specific and varied

requirements of retailers allows our clients to

get ahead of the competition in this dynamic

and fast-moving industry.

Get in touch

If we can support you in growing

your business or help you deal with

any legal or regulatory challenges

you face, please do get in touch.

Perran JervisPartner and Head of Retail, TLT

T 0333 006 0320

E [email protected]

Advertising, marketing

and promotions

Brand management and protection

Competition issues

Construction, refits and capital

investment

Corporate structures, JVs,

acquisitions and disposals

Data protection and privacy

Distribution, logistics and fulfilment

Employment and pensions

Estate management, acquisitions

and development

Services for retailers

Financial services regulation

Health, safety and environmental

International partnering

arrangements, including franchise,

distribution and product licensing

Labelling and packaging

Planning

Procurement of systems and

services, and outsourcing

Product liability and recall

Supply chain disputes

Technology and e-commerce



II

No part of this publication may be reproduced

or stored in a retrieval system, in any forms

or by any means, electrical, mechanical

photocopying or otherwise without prior

consent of the publishers.

The view and forecasts presented in this report,

represent independent findings and conclusions

drawn from a study by Conlumino. Conluminocan accept no responsibility for any decisions

made on the basis of this information or for any

omissions or inaccuracies that may be contained

in this report.

The views expressed in this report are the

views of third parties and do not necessarily

reflect the views of TLT LLP (TLT). TLT takes

no responsibility for the veracity of information

contained in third party narrative and no

warranties or undertakings of any kind, whether

expressed or implied, regarding the accuracy or

completeness of the information given.

TLT takes no liability for the impact of

decisions made, or not made, based on the

information contained and the views expressed

in any third-party guides or articles.

TLT LLP, and TLT NI LLP (a separate practice in

Northern Ireland) operate under the TLT brand

and are together known as ‘TLT’. Any reference

in this communication or its attachments to

‘TLT’ is to be construed as a reference to the

TLT entity based in the jurisdiction where the

advice is being given. TLT LLP is a limited liability

partnership registered in England & Wales

number OC308658 whose registered office is

at One Redcliff Street, Bristol, BS1 6TP. TLT LLP

is authorised and regulated by the Solicitors

Regulation Authority under ID 406297.

In Scotland TLT LLP is a multi national practice

regulated by the Law Society of Scotland. TLT (NI)

LLP is a limited liability partnership registered

in Northern Ireland under ref NC000856 whose

registered office is at Montgomery House, 29-33

Montgomery Street, Belfast, BT1 4NX. TLT (NI)

LLP is regulated by the Law Society of Northern

Ireland under ref 9330.

tltsolicitors.com/contact

BELFAST • BRISTOL • EDINBURGH • GLASGOW • LONDON • MANCHESTER

report retail - tlt - 2015 - retail risk report

Documents