NEW SENTENCING GUIDELINES COME INTO EFFECT 1ST FEBRUARY 2016

Here at LNTV HQ we are busy starting to write our new Crime channel programme on the Sentencing Guidelines for theft offences, when along comes another Sentencing Guideline – two in a month – we are being spoilt!

On 3rd November 2015 the Sentencing Council (https://www.sentencingcouncil.org.uk/) finally published their Definitive Guideline for the Sentencing of Health and Safety, Corporate Manslaughter and Food Safety and Hygiene offences (https://www.sentencingcouncil.org.uk/wp-content/uploads/HS-offences-definitive-guideline-FINAL-web.pdf).  They will apply to all sentences on or after 1st February 2016, no matter the date of the breach.

Fines are to be linked to a defendant’s turnover, continuing the recent trend of large increases in the level of fines being imposed by the courts in cases such as those involving Hugo Boss (fined £1,200,000) and Lindsey Oil Refinery (fined £1,400,000).

Under the new Sentencing Guideline, organisations are categorised as follows:

Micro = turnover of less than £2,000,000

Small = turnover between £2,000,000 and £10,000,000

Medium = turnover between £10,000,000 and £50,000,000

Large =  turnover of £50,000,000 or more

To give just an example, for large organisations, fines are suggested from a starting point of £10,000 up to £4,000,000 for health and safety offences, extending up to £10,000,000 for those with high culpability and which have caused a high level of harm.  In addition, fines of up to £20,000,000 are suggested for those convicted of corporate manslaughter.

The guideline confirms that the fine must be “sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with health and safety legislation.”

Look out for our future programme on these new sentencing guidelines.

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NO SAFE HARBOUR…AND A HAPPY HALLOWEEN!

In Schrems v Data Protection Commission (http://curia.europa.eu/juris/documents.jsf?num=C-362/14), the European Court of Justice looked at whether the Irish Data Protection Commissioners Office had the authority to examine claimant’s concerns regarding the transfer of his personal data under the Safe Harbour Framework from Facebook’s Irish subsidiary to its parent company, Facebook Inc., in the United States of America.

The Court ruled that the Safe Harbour agreement on data transfers from the EU to the US is invalid, as it fails to ensure adequate protection for that data, as required by the Data Protection Directive.  The Court has invited the Irish Data Protection Commissioner to consider suspending the transfer of European Facebook users’ personal data to the US.  The Court also found that national data protection authorities must examine claims from subjects that a transfer of their personal data to a non-EEA country violates their right to privacy even if the country receiving that information has been found by the European Commission to ensure an adequate level of protection for that data.

This judgment has far-reaching consequences.  Thousands of companies share data with US group companies and US-based service provides, such as Microsoft and Google, relying on the Safe Harbour arrangements to enable transfer of that personal data.  Now they will need to consider whether they can continue with this, and develop ways of doing so.  Just as interesting will be the effect the decision has on the flow of data between the EU and the US, and on the relationship between the countries.  UK companies who transfer such data to the US should look to review their data privacy compliance process and ensure that the fundamentals are in place and being followed, all the while eagerly awaiting a new Safe Harbour Framework, which it is hoped will be released sooner rather than later.

Meanwhile, here at LNTV HQ, preparations for Halloween are in full flow.  This does not mean dressing the office in cobwebs and pumpkins, but buying trick or treat chocolates and sweets, eating them, and then returning to the shop for more.  It’s all in the interests of supporting the British confectionary industry you understand 😉

Have a spooky week….

DISCIPLINARY AND GRIEVANCE PROCEDURES

We had the lovely Jonathan Hearn in the studio this week to talk all things employment disciplinary and grievance procedures, including the cases of Toal v GB Oils Ltd (2013), Roberts v GB Oils Ltd (2014), and changes to the Acas Code.  Jonathan is the Legal Director at DLA Piper, and has been a regular contributor to our programmes over the years, for which we are very grateful: (https://www.dlapiper.com/en/uk/people/h/hearn-jonathan/)

Here’s a sneak peak of the interview with Jonathan, before release of the full programme in July:

Interviewer: Fairness and transparency are two of the basic principles to be aware of when handling workplace disputes. What are the key provisions of the Acas Code?

Jonathan: Okay, well, you’ve got things like acting consistently, and you can see, you’ll see that most of these are really for the employer, acting consistently. Having a proper process of investigation to establish some facts, giving an individual a right to know what they’re said to have done and have an opportunity to respond to it. A right of appeal if they’re unhappy with the outcome, and a right to be accompanied by a companion of their choice.

Interviewer: Looking at the right to be accompanied, this is set out in s.10 of the Employment Rights Act 1999. What exactly does s.10 say?

Jonathan: Okay, so a person has a right to be accompanied by a colleague or a trade union official at a formal meeting as part of a capability or conduct process or a grievance process. The person accompanying can be a colleague or a trade union official and, incidentally, the trade union angle has nothing to do with trade union recognition or anything like that, it’s if the individual is in a trade union and an official will come along with them. The employer has to allow postponement of up to five days if the person isn’t available. The person can speak in the meeting but mustn’t answer questions on the employee’s behalf.

Interviewer: So the request that the worker makes has to be reasonable. Does that mean that they’re restricted in their choice of companion?

Jonathan: Well, the request has to be in a reasonable amount of time before the meeting for the employer to respond to it and to accommodate it, and it used to be that the Acas Code said that, or gave clear indications, that the choice of companion had to be reasonable, as well as the exercise of the right to request had to be reasonable. So the choice of companion Acas considered and the Code used to say that, for example, if the person requested was a long way away then that would be an unreasonable request, or if the choice of person would disrupt the process then that again would be an unreasonable request.

Interviewer: That seems fairly sensible. What’s wrong with that?

Jonathan: Well, the problem with it is that it fetters, it restricts the choice of companion and it appears now from more recent case law that we have that that wasn’t the intention, that’s not how s.10 should be read. So we have the case of Toal v GB Oils where the Employment Appeal Tribunal has held that the right, exercising the right to be accompanied has to be exercised reasonably, for example, has to be exercised in good time.

Until next time…

MERRY CHRISTMAS FROM ALL AT LNTV HQ

Twas’ the last working day before Christmas, and all through edit suite,

Not a creature was stirring, not even a tap of feet.

The studio cameras were turned off, and put in the store room with care,

In the hopes that time away, would find them still there.

The Producers were nestled, all snug in their room,

Working frantically, as they could see 5 p.m. loom…

As you may be able to tell, here at LNTV HQ we are preparing to close the doors on another great year, which saw us deliver 78 fantastic continuing professional development/executive education television programmes to hundreds of subscribers, interview more that 150 legal experts, start a new blog, begin to upload our programme highlights to YouTube (https://www.youtube.com/channel/UCmxZF_16AYBqklYdMeDqybw), deliver our programmes to multiple browsers with the additional ability to being able to watch them on a large number of different platforms (so you know the first thing to try out on that new tablet/smartphone you’re hoping for on Christmas day!), and launch a better, easier to use version of our login page (check it out: http://www.lawcolmedia.com).

We return refreshed on 2nd January, already excited at the plans we have for 2015.

So a big thank you to all our subscribers, readers and followers, it’s been a great year, and we can’t wait to follow it up with an even better one.

Happy Christmas, and we hope 2015 brings you everything you wish for.

From all at LNTV HQ.