Tag: UK

UK Imposes Strict Quarantine Requirements for Passengers From ‘Red List’ Countries

On 15 February 2021, the UK government imposed stricter requirements on individuals travelling or transiting from any of the 33 countries (‘red list countries’) that have had a travel ban to England applied. Separate advice applies to Scotland, Wales, and Northern Ireland.

Only British citizens, Irish citizens, and those with UK residence rights are able to enter the United Kingdom if they have visited or transited through a red list country in the 10 days prior to entry to England.

These individuals will need to quarantine in a government-managed hotel for 10 days (11 nights) from the date of their arrival. They must also abide by the following requirements.

  • Individuals must only arrive at an authorised airport. According to the guidance, authorised aiports include only Heathrow Airport, Gatwick Airport, London City Airport, Birmingham-Shuttlesworth International Airport, and Farnborough Airport, although ‘[o]ther ports of entry may be added in the future.’ Passengers whose flights are due to arrive at a different airport must reschedule them to an authorised airport.
  • Individuals must provide a negative COVID-19 test to travel to the UK. The test must be taken in the three days prior to departure, and must be negative in order to travel or board the plane. Their results will need to be provided upon arrival in the UK, or else a fine of £500 could be imposed.
  • Individuals must reside in a government-managed hotel. The 10-day quarantine period must be in one of the government-managed hotels and reserved via the booking portal (before arriving in England). The fee for the ‘quarantine package’ for one adult is £1,750. To add another person over the age of 12 to the booking will cost £650, or £325 for a child between the ages of 5 and 12. This price includes transport to and from the hotel, meals, and COVID-19 testing on the second and eighth days of the 10-day quarantine period.
  • Individuals must complete an online ‘passenger locator form’ in the 48 hours prior to travelling to the UK. The form is intended to provide a passenger’s journey and contact details. Passengers who do not complete the form may face delays in entering England or they could be fined or refused entry. Once the form has been completed, passengers will receive a confirmation email with a document attached. The document will contain a QR code that will be scanned by the Border Force to confirm that the form has been completed successfully.

Sanctions may be imposed on passengers who provide false or deliberately misleading information on the passenger locator form. Passengers who provide inaccurate information may be fined ‘up to £10,000, imprisoned for up to 10 years, or both’. If the quarantine rules are broken, fines of up to £10,000 may be imposed.

The situation with COVID-19 and pre-entry requirements to the UK is constantly changing, and it is also likely that other countries may be added (or removed) from the red list. Individuals may want to review the guidance for updates and further information on how to quarantine when arriving in England.

The government also provides guidance for passengers who are not travelling to England from red list countries.

Wales

Passengers may not directly travel to Wales if they have visited or passed through a red list country in the previous 10 days. They must arrive through one of the designated ports of entry to the UK in England or Scotland and ‘isolate for 10 days in a managed quarantine hotel.’

They must also complete a passenger locator form, have proof of a negative COVID-19 test (taken no more than 72 hours before departure), and also take a test on or before the second day and on or after the eighth day of quarantining.

Scotland

Although part of the UK, different rules apply regarding quarantine for individuals arriving in Scotland. All travellers flying into Scotland from outside the Common Travel Area (not just the red-list countries) must book and pay for managed isolation in quarantine hotels. The Common Travel Area comprises of the United Kingdom, Ireland, the Isle of Man, and the Channel Islands.

The following requirements apply for individuals arriving by air into Scotland.

  • Individuals must provide a negative COVID-19 result during the three days before travel.
  • Individuals must ‘book and pay for managed isolation in a quarantine hotel for at least 10 days from the point of arrival’.
  • Individuals must ‘complete an online passenger locator form before travelling, and provide contact details, travel details and the address of [the] final destination’.
  • Individuals will also need to provide the booking reference for the quarantine package.
  • Individuals must be tested on the second and eighth days of the 10-day quarantine period.
  • Individuals must follow the national rules on ‘Coronavirus in Scotland.’
    © 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
    ARTICLE BY Ruhul K. Ayazi of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more, visit the NLR Immigration section.

Can U.K. Employers Make COVID-19 Vaccinations Mandatory?

So, can employers mandate that their workforce receive the vaccine? Employers have a legal duty to ensure the health and safety of their workforce as far as reasonably possible, so such a requirement would appear to be an effective means of satisfying this duty. However, whilst there may be certain settings where such a requirement is reasonable — for example, in health care or other high-risk areas — employers should be very cautious about pursuing a policy of mandatory vaccination since this could have a number of legal implications.

Primarily, such a policy could expose an employer to claims, including for discrimination and/or constructive dismissal if an employer were to take detrimental or disciplinary action because an employee refuses to be vaccinated and such refusal is related to a characteristic that is protected under U.K. discrimination law (namely, age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation). For example, there is a risk of maternity or disability discrimination where employees who are pregnant or suffering from a medical condition that amounts to a disability are not able to have the vaccine and are consequently treated less favourably by their employer than employees who have had the vaccine. Likewise, such a requirement could also amount to age discrimination if younger employees, who are likely to be the last category of people being offered the vaccine as part of the NHS rollout, are treated less favourably than older employees who have had the vaccine.

A policy of mandatory vaccination could also infringe employees’ right to privacy under Article 8 of the Human Rights Act 1998. Technically an employer may be able to justify such a breach, but this is likely to be difficult where less personally invasive measures are available to employers to maintain the health and safety of their workforce, such as social distancing and the wearing of face coverings.

Employers should also consider the data protection implications of mandating vaccinations since holding data on whether an employee has had the vaccine is likely to be considered a special category of data under applicable data protection law (meaning that it needs more protection because it is sensitive). In order to lawfully process such data, there must be a lawful basis for the processing, and additional conditions and supporting documentation must be put in place, including conducting an impact assessment to identify and minimise any risks.

Whilst a policy of mandatory vaccination may present difficulties from a legal perspective, employers may want to put in place nonmandatory guidance about the vaccine to encourage their employees to have it. Additionally, employers should not rely on vaccination to replace other protective measures in the workplace, such as social distancing and the wearing of face coverings, and should continue to assess their workplace risks as the pandemic unfolds.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.

ARTICLE BY Alex Denny and Emma Vennesson of Faegre Drinker
For more, visit the NLR Labor & Employment section.

UK Settlement Highlights International Enforcement Linked to “Car Wash” Investigation

The UK Serious Fraud Office (the “SFO”) has reached a £1.2 million civil recovery settlement with Julio Faerman, a Brazilian national linked to the sprawling “Operation Car Wash” investigation involving the Brazilian state-owned oil company, Petrobras.

During its investigation into Faerman, the SFO obtained a freezing order and a disclosure order and was successful in resisting an application to set these aside despite some fairly significant procedural failings.

The settlement is a tangible demonstration of the SFO’s ongoing cooperation with Brazilian and other international law-enforcement counterparts. It also highlights the continued prominence of Brazil and Latin America in international anti-corruption enforcement.

Operation Car Wash (Lava Jato)

Operation Car Wash began in March 2014 and revealed that Petrobras officials, acting in concert with Brazil’s largest construction companies, engaged in a massive bribery scheme which facilitated the payment of hundreds of millions of dollars in bribes to Brazilian politicians through elaborate kickback schemes with contractors and suppliers. To date, the investigation has resulted in prison sentences for nearly 300 individuals and billions of dollars in fines and financial settlements with companies involved.1

Faerman acted as the Brazilian agent for the Dutch oil services company SBM Offshore NV. As part of a 2016 settlement with the Brazilian Public Prosecutor (MPF), Faerman admitted paying bribes to win lucrative Petrobras contracts. The Brazilian Authorities and media sources have suggested that Faerman also acted for other foreign companies implicated in Operation Car Wash, including Rolls-Royce, General Electric and the Norwegian company, Vertech.2

Faerman continues to be subject to a cooperation agreement with the Brazilian Authorities and paid a financial settlement of USD 54 million in 2016. Faerman is a Brazilian resident and is believed to be in custody there.

UK Civil Recovery Proceedings

Following the Brazilian settlement, the SFO opened its own civil recovery investigation into Faerman’s UK assets, which it suspected had been acquired with the proceeds of crime. The SFO investigation focused on a £4.25 million apartment located in Kensington, London as well as Swiss bank accounts and offshore vehicles, which it believed funded the purchase.

On 29 January 2019, following an oral hearing conducted in private and without notice, the SFO obtained a freezing order on the Kensington property, to prevent it being sold while the investigation proceeded. The SFO also obtained a Disclosure Order under the Proceeds of Crime Act 2002 (the “Order”) to enable the tracing of bribe-linked commissions paid to Faerman and to demonstrate that he used these sums to part-fund the purchase of the property. On 29 March, after a further application made without notice, both orders were amended to allow service on Faerman’s English and Brazilian lawyers in circumstances where personal service was possible but considered impractical.3

By letter to Faerman’s lawyers dated 3 May, the SFO served the Order, which contained a penal notice addressed to “Julio Faerman or any person served with a notice under this order” which set out potential criminal sanctions for failure to comply. On 25 July, the SFO served the Order again requesting the origin of certain funds. The copy of the Order attached to the second letter had the entire penal notice redacted. It was otherwise in the same mandatory terms.4

On 25 September 2019, Faerman’s solicitors objected on the basis that the SFO are not authorised to issue an information notice to someone outside the jurisdiction. On 5 November, the SFO responded, clarifying that they were aware that they could not force compliance and were requesting the information on a voluntary basis.

Faerman refused to provide the information requested and made an application to discharge the Order as unauthorised and defective, as the SFO could not properly serve an enforceable information notice on him or any other persons overseas citing the judgment of the UK Supreme Court in Perry.5  Further, Faerman argued that the SFO’s failure to bring the Supreme Court’s decision in Perry to the attention of the judge in the ex parte hearing constituted material non-disclosure and an abuse of the disclosure order procedure.

Despite acknowledging procedural failings by the SFO, Mrs Justice Cutts CDE dismissed Faerman’s application to discharge the Order on 10 July 2020. The Judge took the view that even if the judgment in Perry had been disclosed, the SFO’s application would nonetheless have been granted, albeit with a clarification that no information notice could be served on Faerman outside the jurisdiction. She considered that the SFO had not acted in bad faith, that Faerman had suffered no prejudice (because he had not supplied any information) and that there was a clear and compelling public interest in maintaining the Order.6

On 29 October 2020, the SFO signed a settlement agreement with Faerman. Under the terms of the settlement, the property freezing order and disclosure order will remain in place until Faerman pays the settlement amount of £1.2 million and £57,000 in SFO costs.7

International Corporation

In announcing the Faerman settlement, the SFO recognised assistance received from Office of the Attorney General of Switzerland (OAG) and the Dutch Investigation Service (FIOD). The SFO also has a strong working relationship with the Brazilian Authorities, as demonstrated by the £497 million Rolls Royce Deferred Prosecution Agreement from January 2017, which was accompanied by parallel settlements with the Brazilian MPF and the US Department of Justice (DOJ).8

International cooperation has been a critical feature of Operation Car Wash and looks set to continue. The Brazilian Authorities have communicated with law enforcement authorities in 61 jurisdictions. The Brazilian MPF has requested for assistance from the SFO on 16 occasions as part of the Car Wash Investigation alone. It has also received three requests for cooperation from the SFO as it continues to pursue its own investigations relating to that case. The MPF’s cooperation with the US DOJ is even more active with 58 requests made and 21 received to date.9

Looking Forward

It has been reported that Operation Car Wash is now encountering greater domestic resistance due to opposition from the Brazilian Congress, Supreme Court and officials close to President Jair Bolsonaro10. It is important to recognise, however, that the investigation has already been extraordinarily successful, continues to enjoy widespread popular support and has made Brazilian anti-corruption enforcement relevant on the international stage. Due to the enormous international scope of the investigation, the volume of information obtained through cooperating witnesses and the number of implicated companies and individuals, domestic and international enforcement will continue for the foreseeable future.

1   http://www.mpf.mp.br/grandes-casos/lava-jato/resultados

2   https://globalinvestigationsreview.com/rolls-royce-caught-in-cgu-petrobras-investigation

3   [2020] EWHC 1849 (Admin) – https://www.bailii.org/ew/cases/EWHC/Admin/2020/1849.html

4   Ibid.

5   [2012] UKSC 35

6   [2020] EWHC 1849 (Admin) – https://www.bailii.org/ew/cases/EWHC/Admin/2020/1849.html

7   https://www.sfo.gov.uk/download/sfo-v-faerman-signed-order/

8   https://www.sfo.gov.uk/2017/01/17/sfo-completes-497-25m-deferred-prosecution-agreement-rolls-royce-plc

9   http://www.mpf.mp.br/grandes-casos/lava-jato/efeitos-no-exterior

10 https://www.ft.com/content/8f79871f-9dc4-4a97-9b26-79a7a9c2bf32

© Copyright 2020 Cadwalader, Wickersham & Taft LLP
ARTICLE BY Mark Beardsworth and  Duncan Grieve of  Cadwalader, Wickersham & Taft LLP

Quick Q&A: Handling Holiday During COVID-19

As employees settle into working from home, it is important for employers to consider their approach to annual leave while the COVID-19 crisis is ongoing. Regular rest breaks help to ensure the physical and mental wellbeing of employees during a stressful period with additional work, health and family pressures. It is also important from a business continuity perspective to ensure that employees do not return work with a significant amount of holiday outstanding. With this in mind, Katten looks at common queries that have come up recently regarding holiday accrual and pay.

Does holiday entitlement continue to accrue while staff are furloughed, laid off or on short-time working?

Yes, employees continue to accrue holiday as they remain employees of the company. If an employee is entitled to more than the statutory minimum amount of 28 days’ paid holiday (inclusive of bank and public holidays) then you can, by agreement, negotiate a reduction in their contractual entitlement provided that doesn’t go below the statutory minimum.

Can I ask staff to take holiday at a specific time?

Yes, employees can be required to take holiday at a specific time, provided they are given notice of at least twice the length of the period of leave that they are being required to take (e.g., for a five day holiday they would need to be given 10 days’ notice). We would recommend that employees continue to record their holiday in your usual holiday tracker system. You can ask an employee to take holiday regardless of whether it has already been accrued.

How much should I pay staff who take holiday while furloughed?

While the guidance is not clear cut, we expect that holiday pay will be payable at an employee’s reduced furloughed rate of salary for any holiday taken while furloughed. This will be reimbursable as salary up to the Her Majesty’s Revenue & Customs (HMRC) limits under the coronavirus job retention scheme.

Can staff carry over accrued but untaken holiday?

The UK Government has amended the Working Time Regulations so that employees and workers can carry over up to 4 weeks’ paid holiday over a 2-year period, if it was not reasonably practicable to take the leave due to the coronavirus. This is a change from the current position where the ‘basic holiday’ of 4 weeks must be taken each year as a health and safety measure, meaning that it was only previously possible to carry over the balance of holiday above 20 days (which in the UK would be a minimum of 8 days). So in practice, employees can now carry forward 4 weeks as a matter of law. We recommend considering the impact of holiday accrual on the business when things return to ‘normal’ (i.e., employers should consider whether they want to require employees to take holiday even while they are furloughed).

Can I force employees to cancel a booked holiday?

Employers are still able to refuse an employee permission to take holiday on particular days (e.g., if they are critical to the business at this time and the employer needs them at work), provided that they give notice to the employee which is at least as long as the holiday requested. However, the law has changed to say that employers can only exercise this right where there is “good reason to do so”.
©2020 Katten Muchin Rosenman LLP
For more employment considerations during the COVID-19 pandemic, see the National Law Review Labor & Employment law page.

UK’s Financial Conduct Authority Consults on New Climate-Related Disclosure Requirements following TCFD Recommendations

In March 2020, the UK’s Financial Conduct Authority (the “FCA”) released a consultation paper entitled: “Proposals to enhance climate-related disclosures by listed issuers and clarification of existing disclosure obligations” (“CP20/3”).

The proposal would introduce a new listing requirement for commercial companies with a Premium Listing on the London Stock Exchange. If implemented, these companies’ annual reports for financial years beginning on or after 1 January 2021, will have to include climate-related disclosure as recommended by the Taskforce on Climate-related Financial Disclosures (“TCFD”), and/or to explain any non-compliance. The deadline for comments and feedback on CP20/3 is 5 June 2020. Following consideration of the feedback received on CP20/3, the FCA aims to publish a Policy Statement, along with the finalised rules and an FCA Technical Note, later in 2020.

TCFD Recommendations

The TCFD is a task force established by the Financial Stability Board with the aim of establishing a global framework for companies to disclose the impact of climate change on their business with the aim of helping investors to understand which companies are most at risk, which are best-prepared, and which are taking decisive action on climate change.

Its recommendations were published in 2017, and recommend clear disclosure on the impact of climate-related risks in the following areas of a company’s business:

  1. Governance: the organisation’s governance around climate-related risks and opportunities;
  2. Strategy: the actual and potential impacts of climate-related risks and opportunities on the organisation’s businesses, strategy, and financial planning;
  3. Risk Management: the processes used by the organisation to identify, assess, and manage climate-related risk; and
  4. Metrics & Targets: the metrics and targets used to assess and manage relevant climate-related risks and opportunities.

In each category, the TCFD has recommended the specific topics to be described or disclosed, and it has provided additional general guidance and sector-specific guidance relating to financial companies (in particular, banks, insurance companies, asset owners and asset managers) and non-financial companies (energy, transportation, materials and buildings and agriculture, food, and forest products).

CP20/3 – Proposed New Disclosure Requirements

CP20/3 adopts the TCFD standards for disclosure wholesale. If adopted, UK premium-listed commercial companies (i.e., companies subject to Listing Rules 9 and 21) will have to become familiar with these standards and report in accordance with them on a comply-or-explain basis.

The comply-or-explain approach is the standard required by the UK’s Corporate Governance Code, and was adopted as the proposed standard for climate-related disclosure despite mixed feedback, as the FCA acknowledges that issuers’ capabilities are still developing in some areas, and they may not yet have the data and capabilities to fully comply with certain of the TCFD recommendations, particularly those relating to scenario analysis and setting climate-related targets. The FCA also notes it does not want to be overly prescriptive at this stage, given the evolving nature of climate-related disclosure and modelling frameworks

CP20/3 – Guidance on Existing Climate-Related Disclosure Obligations

The other key element of CP20/3 is the proposed issuance of an FCA Technical Note to clarify existing climate-related and other environmental, social and governance (“ESG”) disclosure. The FCA-proposed Technical Note is aimed at all issuers subject to existing EU legislation and rules contained in the FCA Handbook (i.e., all issuers with securities listed on the London Stock Exchange, not just those in the premium-listed segment to whom the proposed rule on TCFD disclosure will apply).

It reminds those issuers that even where climate-related risks are not mentioned by name, they may still be important, and required to be disclosed under more general disclosure and internal controls obligations. For example, this proposed Technical Note will advise issuers that their existing obligations under the Listing Rules, the Prospectus Regulation, the UK Corporate Governance Code, the Disclosure and Transparency Rules, and the Market Abuse Regulation, may all involve a review of climate-related risks and, if necessary, related disclosure.

Conclusion

The TCFD’s framework encourages businesses to face and evaluate the financial risk that climate change poses to their business, both in terms of physical risk posed by extreme weather and its consequences, and the “transition risk”, meaning the large category of risks posed by behavioural changes as well as policy changes related to mitigating climate change. The TCFD framework has the aim of moving towards helpful, comparable disclosures related to these risks. This should allow investors (and consumers and regulators) to add a new dimension to their assessment of companies, and modify their behaviour accordingly.

Investors across the board agree that ESG factors are now routinely incorporated into mainstream investment decisions, and companies are required to demonstrate their insight and oversight on these topics. It is still not the case that a single framework dominates reporting on these matters, but this consultation paper shows that the TCFD framework will continue to grow in importance, at least in the UK. The FCA believes its proposals in CP20/3 are consistent with the UK Government’s Green Finance Strategy, published in July 2019, and is a first step towards the adoption of the TCFD’s recommendations more widely within the FCA’s regulatory framework.

© Copyright 2020 Cadwalader, Wickersham & Taft LLP

ARTICLE BY the Financial Regulation practice group at Cadwalader, Wickersham & Taft LLP.
For more financial regulation, see the National Law Review Financial Institutions & Banking section.

FCA Issues Coronavirus Statement

On March 4, the UK’s Financial Conduct Authority (FCA) issued a statement on Covid-19, the novel coronavirus that originated in China in December 2019 and recently spread to Italy and Iran, among many other countries globally (the Statement).

In the Statement, the FCA explained that they are working with the Bank of England and HM Treasury to engage with firms, trade associations and industry bodies to understand the pressures they are facing. This work includes actively reviewing the contingency plans of a wide range of firms.

The FCA noted that all firms are already expected to have contingency plans in place to deal with major events such as this and that firms should be taking all reasonable steps to meet their regulatory obligations. While the FCA has no objection in principle to staff working from home or from alternative sites, firms still need to be able to, for example, use recorded lines when trading and give staff access to any compliance support they may need.

The Statement is available here.

©2020 Katten Muchin Rosenman LLP

UK Withdrawal Agreement Becomes Law

On January 23, the European Union (Withdrawal Agreement) Bill became an Act of Parliament and is now legally binding in the UK. The purpose of this legislation is to give binding force to the withdrawal agreement that was made between the UK and the EU on October 19, 2019.

The next step will be for the withdrawal agreement to be ratified by the European Parliament, which is scheduled for January 29. If this vote is passed, the UK will leave the EU on January 31, 2020. The UK will then enter an ‘implementation period,’ during which all EU laws will continue to apply in the UK, while the UK and the EU negotiate their future relationship. This implementation period is scheduled to end on December 31.

©2020 Katten Muchin Rosenman LLP

For more Brexit developments, see the Global Law section of the National Law Review.

Dealing With “Attitude” at Work, Part 3 – Helping Staff Help Themselves

In the first two posts in this series, I looked at the law around workplace attitudes which might stem from some form of disability. But what if your employee is fit and well in all respects bar being exceptionally painful to work with?

He may be relentlessly negative, make heavy weather out of every instruction, or just operate on a very short fuse, often perfectly civil but prone to detonation when colleagues overstep some clearly very important, but also absolutely invisible, line in their dealings with him. He is, in every sense, grit in the gearbox of your business. But without obvious performance or conduct concerns, what can you do?

Probably the first point is to ascertain whether the employee himself recognises the problems he is causing to his colleagues. This won’t be an easy conversation but it forces him to confront the problem head-on. He may demand to know who has complained and require detailed examples of where others have been offended. By the very nature of a poor attitude, however, individual manifestations of it seem trivial and raising them individually with the employee like a series of miniature disciplinary charges is just going to lead to a precipitous further decline in workplace relationships. So I would suggest in many cases that the attitude issue is put as a collective perception without the identification of either individual complainants or specific examples. This is the view people have on you. You don’t need details of individual complainants or examples to decide whether you recognise that as having any truth in it. If you do accept that there is something in it, you can do something about it. If you can’t/don’t do anything about it, the employer will need to do so instead.

That meeting will best take place in private and without any offer of a companion, so it is not disciplinary action and cannot be relied upon as a warning at a later stage. It is intended to be no more than a word to the wise.

This leaves the employee with some choices. Is he going to be wise or not? If secretly he recognises that this is how he might come across, then without admission and without formal disciplinary proceedings he can amend his behaviours and all will be well at minimum disruption and cost. Alternatively he may flatly deny those behaviours both to you and (more importantly) to himself. However, he will then have to address in his own head the question of why so many of his colleagues say otherwise. Or he may accept the behaviours in broad terms, but allege that they are the product of some treatment he has received from the employer or his colleagues. He withdrew from social interaction with them because they withdrew from such interaction with him, and they did it first, so there. He is being passive-aggressive because they are being aggressive-aggressive. He doesn’t trust them because they didn’t support him about something a long time ago which he has been unable to get over, and so on.

Of course, you can make such a response the subject of a formal grievance and disciplinary process, but this will have more oh yes you did and oh no I didn’t than the average Christmas panto and at the end of it you will find the same two things every time: first, that no one is completely blameless and second, that by conducting the effective artillery duel which those formal procedures encourage, you have converted a relationship which didn’t work very well into one which no longer works at all.

Therefore if you can catch your employee’s attitude issue early enough to avoid having to go through a formal process, why not try to mediate a resolution? Use the safe space created by that process to exchange some views about how each side’s conduct makes the other feel. It may be the first time your employee has heard this “from the heart”. Ideally this should be in non-aggressive terms – “You intimidate me” cries out to be whacked back over the net with added topspin, but “I feel intimidated by you” cannot so easily be argued with because it is about what someone feels, not what someone else did.

You might reasonably expect emotion and tears at such a mediation (dawning self-awareness can be very painful) so it won’t necessarily be an easy process. But at the end, if it works, you will have a newly functioning working relationship and not the cratered and smoking wreckage of what used to be the team spirit.

If it doesn’t work? More next week.

 

See Parts 1 & 2:

© Copyright 2019 Squire Patton Boggs (US) LLP

For more on workplace attitudes, see the National Law Review Labor & Employment law section.

Brexit: Turkeys Voting for Christmas?

Brexit delayed again – now it’s off to the races in a General Election

Despite having finally achieved a Parliamentary majority in favour of a way of delivering Brexit, in the Second Reading of the Withdrawal Agreement Bill on 22nd October, Prime Minister Boris Johnson decided – in the face of Parliament’s refusal to allow him to put the Bill through very rapidly so as to meet the 31st October Brexit deadline – to pursue a General Election instead of pushing the Bill through.

After some “after you, Claude” to-ing and fro-ing, the EU agreed to the request to extend the Article 50 deadline of 31st October which the Prime Minister had been forced by Parliament to send. The EU did so under condition that there should be no re-opening of withdrawal negotiations, no disruption to EU business by the UK (including the UK appointing a member of the new European Commission), and that the UK could leave earlier if the ratification process completed earlier.

A delicate game ensued in Parliament about the basis for a decision to hold the election, with opposition parties wanting to remove the Prime Minister’s discretion over the date of the election, and to make it impossible for him to try again to push the Withdrawal Agreement Bill. On 28th October Parliament rejected the Prime Minister’s attempt to secure an election on 12th December. Parliament then decided on 29th October that the election should be held on 12th December. The difference between the first 12th December and the second 12th December would take too long to explain, and would anyway test the sanity of all but the most extreme political geek.

And so the unhappy child of Theresa May’s disastrous 2017 election fades into the twilight…

The election Bill still needs to go through the House of Lords (unlikely to be problematic) and receive Royal Assent, and the House of Commons needs to tidy up some necessary business. So on current plans Parliament will dissolve on Wednesday 6th November for MPs to campaign for the General Election on Thursday 12th December. The British electorate, used to voting at national level every five years, had a General Election in 2015, the Brexit referendum in 2016, a further General Election in 2017, and now a third General Election in 2019 (the Scots also had an independence referendum in 2014).

Was the 2017-2019 Parliament a travesty of democratic accountability, or a powerful example of representative democracy grappling with issues which had split the nation in two through a binary exercise in direct democracy? Historians will judge. It was certainly a tough one for individual MPs, who regularly found themselves objects of extremely hostile, sometimes violent, social media messaging. Parliament certainly seemed to reflect accurately the division in the electorate, which the polls show has not shifted significantly throughout the period since the 52:48 result of the 2016 Brexit referendum.

“Prediction is very difficult, especially if it’s about the future” – Nils Bohr

So what’s going to happen in the 12th December election? It will be the first December election for almost a century, and the hardest to predict for many decades. Will Boris Johnson scoop the Leave vote across the country, or will Nigel Farage’s Brexit Party damage the Conservatives by arguing that Johnson’s Brexit deal is not really Brexit? Will the clarity of the Liberal Democrats’ Remain position help them and weaken Labour, or will Labour be able to sit on the fence on Brexit and focus the campaign on Tory austerity and public services?

The next six weeks will be exhilarating, confusing and passionate. They will decide the future course of the nation. Nothing more will happen on Brexit until after the election. Whether the election provides a clear way forward will depend on whether a party achieves a clear majority or the election produces another hung Parliament. Watch this space…

© Copyright 2019 Squire Patton Boggs (US) LLP

Read more about Brexit on the Global Law page on the National Law Review.

How Harmful do Gender Stereotypes Need to be?

Ads Banned in UK Following New Rule

As we reported earlier this year, a new rule dealing with the depiction of harmful gender stereotypes, was introduced into the BCAP and CAP Codes as of June 2019.

The first decisions under the new rules have been released and we have seen two separate ads by Volkswagen and Philadelphia banned by the Advertising Standards Authority (ASA) under the new rule.

Volkswagen’s advert for its eGolf electric car, with the slogan “when we learn to adapt, we can achieve anything” features a man and a woman camping on a sheer cliff face, two male astronauts floating in space, a male athlete with a prosthetic limb, and a woman sitting next to a pram.

Separately, the Philadephia ad by Mondalez depicts fathers being distracted by the cheese spread long enough for their babies to end up on a conveyor belt of Philadelphia, resulting in an embarrassed dad saying “let’s not tell mum”.

Both ads received a number of complaints from the public on the basis that they were contrary to the new rule, which aims to ban harmful gender stereotypes in ads which can

“contribute to inequality in society” and “can, over time, play a part in limiting people’s potential.”

Whilst Volkswagen argued that caring for a new born child was a life-changing experience about adaption, regardless of the gender of the parent depicted, and that a female was also engaged in the adventurous activity of camping on the mountain, the ASA ruled that “unlike her male counterpart, the female rock climber was passive, because she was asleep” and that the woman with the pram was depicted in a stereotypical care-giving role.

Mondalez told ASA that it was in a “no-win situation” having deliberately chosen two dads to avoid depicting the stereotypical image of women handling the childcare responsibilities. However the ASA banned the ad on the basis that it reinforced the stereotype that males are ineffective in care-giving roles.

Critics have said that the watchdog has gone too far and in a statement posted on the website for ISBA, the body representing the UK’s leading advertisers, Phil Smith (director-general and a member of a working group that helped develop the new rules) said the bans are “concerning, both in terms of the precedent they set and the likely impact they will have on advertisers.”

Smith further commented

“In our view, the two decisions go beyond the intent of the new rule and guidance and will likely create confusion for advertisers and the broader co-regulatory system as they seek to address the harmful gender stereotypes and outdated portrayals this rule was designed to tackle.”

The effectiveness of the new rule will be reviewed by CAP in June 2020, to determine whether it is suitable in helping the ASA meet the rule’s objective. It will be interesting to see how the ASA applies the rule in future decisions.

© Copyright 2019 Squire Patton Boggs (US) LLP

ARTICLE BY Carlton Daniel and Katie Rodgers of Squire Patton Boggs (US) LLP.
For more on advertising regulation, see the National Law Review Communications, Media & Internet law page.