After a year of unprecedented change and a turbulent start to 2021, what key issues should General Counsel and in-house lawyers have on their radar for the rest of this year?
Adaptability and flexibility were the watchwords of 2021. The Covid-19 pandemic brought challenges on a scale that were unprecedented. GC and inhouse legal teams played a key role in managing risk, ensuring compliance, fostering resilience and helping their Boards to meet commercial objectives.
Covid-19 and Brexit mean that there are many disruptive factors at play this year too. The ability to react quickly and scan the horizon for issues and opportunities continues to be a vital part of a GC’s role. So, what are the key issues to be aware of over the coming months?
As we’ve spent more time online during the pandemic, the globalised use of data is clearer than ever and the need for data to carry on flowing is crucial.
At the end of the Brexit transition period the UK became a ‘third country’ for data protection purposes and the UK Government introduced a bridging period to allow a data adequacy decision to be granted by the EU. European Commission granted the UK provisional data adequacy status in February – an important step towards the continued free flow of personal data from the EU to the UK.
The terms of the GDPR have been copied into UK as the UK GDPR and an important point for businesses offering goods and services to data subjects in Europe is that they may be subject to both and an important action point is to review your contracts to ensure that they are referring to the correct statute/s.
As well as waiting for the final data adequacy decision from the EU, we expect amended Standard Contractual Clauses (SCCs) to be issued imminently. Potentially these will cover four different data transfer scenarios and it won’t be a case of replacing old with new, so make sure you have time to devote to this work. The Schrems II case last year, which invalidated the US privacy shield, emphasised the important role SCCs play in maintaining data flows.
A lot of data has been gathered as part of the management of the pandemic and we wait to see if there will be any fall out from this in terms of how it was gathered, secondary uses and issues with retention periods. If you have gathered data during the pandemic make sure that it has an appropriate retention period and is not being used for any other purposes.
Subject Access Requests (SARs) are becoming more frequent as the general public become increasingly aware of their rights. The complexity of the requests is also increasing, and we are starting to see claims for compensation when people do not receive their data within the 30 day time period.
Crucially, you must ensure employees are trained to identify SARs, which can be verbal or through social media as well as email or letter – and they don’t need to be labelled as a subject access request.
The more evidence you have of training and regularly reviewing your systems and processes to ensure privacy by design the better, as these will be a mitigating factor should you ever be subject to an ICO investigation.
Contracts and commercial considerations
Many organisations have renegotiated their commercial contracts due to Covid-19. You will also need to ensure that new contracts cover coronavirus and its impacts (lockdown, travel restrictions, supply chain issues, etc). It is likely that these contract negotiations will require detailed discussion.
Good communication is key in all contract negotiations, but particularly so with the backdrop of Covid-19 where open and honest discussions are vital. It is also important to update contingency plans regularly. For example, we can expect staff shortages to be an issue again this year due to Covid-19 but also Brexit affecting workforces.
As Covid-19 support schemes come to an end, a rise in contractual disagreements is expected. Various developments including the doctrine of good faith evolving and recent cases on privilege demonstrate the importance of document management for future auditing and potential disputes further down the line.
Workforce disruptions and challenges
While organisations are grappling with the immediate and direct consequences of the coronavirus pandemic they are advised to think longer term too.
Issues include the (eventual) end of the furlough scheme, health and safety concerns for people returning to their places of work, remote working patterns, the legal nuances of encouraging workers to get vaccinated and the wellbeing of workers who may have struggled during the pandemic.
Our employment lawyers are seeing an increase in workplace disputes and it is vital that employers tackle issues like redundancies and changes to working conditions carefully.
New immigration rules
A major impact of Brexit is new immigration rules. If you employ any EEA staff who were resident in the UK before 31 December 2020, you must check that they have applied for settled status under the EU Settlement Scheme, which they must do before 30 June 2021.
Any new EEA staff, who arrived in the UK on or after 1 January 2020, will be treated like any other overseas worker and will require a visa, under the new points based system. Increasingly we are seeing more employers applying for sponsor licenses, so they have greater scope to bring workers in to fill key roles.
Equality, diversity and inclusion
Although the equality framework has been around for decades, there is renewed focus on equality, diversity and inclusion that organisations should not ignore. This is being driven by movements like Black Lives Matter, #MeToo, LGBTQ+ rights and wider concerns about wellbeing and mental health exacerbated by the pandemic.
Traditionally employers have focussed on trying to avoid liability through a risk based approach, rather than embracing the opportunities that equality can bring their organisation. Although there are signs this is starting to change, as customers, suppliers, employees, shareholders and stakeholders demand more diversity, organisations will have to improve their performance in this area to be regarded as employers of choice.
Helping senior in-house lawyers
General Counsel are likely to play an increasing role in helping to shape strategy at Board level. In the fast-changing environment we are facing, it is crucial to be supported by an in-house legal team and external advisors that can help you add business value.
Bevan Brittan’s GC Exchange is a team of expert lawyers and a knowledge hub that helps senior in-house lawyers navigate the business landscape. We want to support senior legal professionals operating in today’s fast-paced commercial world, by harnessing our strengths, rich collective experience, up-to-date commercial knowledge and strong relationships.