Following the Brexit vote it is uncertain what arrangements are to be made to ensure that EU trademarks continue to provide protection in the UK.  One potential issue is the validity of a challenge over non-use of a trade mark in the EU.

Trade marks can be challenged if they have not been used within a jurisdiction for five years. Should a party have an EU trademark but exclusively use this trade mark in the UK, this trade mark may be susceptible to a post-Brexit non-use challenge.

It may, for the sake of future planning and protection, be sensible for businesses who have EU trade marks, to ensure they also register a UK trade mark

1. Apprenticeships

From April 2017, all large employers will be required to pay an apprenticeship levy set at 0.5% of the employer’s paybill. The money gathered will be distributed to fund the cost of apprenticeship training and assessment. The term “apprenticeship” will be protected and training providers will be unable to describe a course as an apprenticeship if it is not a statutory apprenticeship.

2. English language requirements

Workers in the public sector will need to speak English and Welsh fluently (where appropriate) if their job requires them to speak to members of the public. A code of practice has been published for public authorities.

3. National Minimum Wage and National Living Wage – NMW and NLW – new rates wef 01.10.16

Apprentice rate- £3.40ph

Under 18 but no longer of compulsory school age- £4.00ph

18 to under 21 £5.55ph

21 to under 25- £6.95ph

Over 25- £7.20ph

NLW- £7.20ph

Future NMW and NLW changes will take place in April starting in 2017.

4. Immigration skills charge comes into force – April 2017

The Government wants to reduce employers’ reliance on migrant workers by imposing a visa levy on organisations that sponsor workers from outside the European Economic Area and Switzerland.

5. Using foreign workers illegally and face closure

New powers are introduced to serve employers with a closure notice  where illegal working is suspected, preventing access to the firm’s site for 12 months.

6. Gender pay gap reporting

Employers with over 250 employees will be required to publish details of their gender pay gap and gender bonus gap on a yearly basis. The first reports will need to be published by April 2018.

7. Exits from the public sector

If they earned £80k or more per annum, employees who return to work in the public sector within one year of leaving will need to repay any exit payment made by their previous public sector employer. A new cap of £95k will be set for the amount of public sector exit payments.

8. Trade union law

Trade Union Act 2016 brings in new voting thresholds for industrial action. There is no confirmed date of implementation at the time of writing.

9. Tax-free childcare – early 2017

In families where both parents work and each parent earns less than £100k pa and a minimum weekly income at least equivalent to 16 hours at the rate of the NMW, the Government will pay 20% of their yearly childcare costs capped at £2000 for each child.

10. Sunday working rights protected – start date to be announced

Shop workers will be given greater protection under new rules. Shop workers will be able to object to working more than their normal hours on a Sunday and there will be a reduction in the notice that workers need to give if they want to opt out of working (in the larger shops) on Sunday.

1. Myth: leaving the EU after 43 years will bring an end to statutory holiday and sick pay

Entitlement to annual leave is set out in the Working Time Regulations 1998 (“WTR”) which are derived directly from EU law. Entitlement to annual leave is set out also in the employee’s contract and cannot just be taken away. The UK opted to increase the amount of holiday from the EU minimum of 20 days to 28 days in the UK. In theory the UK could remove this when leaving the EU but it would be regarded as unlikely. Sick pay is not directed by the EU only in case law such as HM Revenue & Customs v Stringer and others (“Stringer”) and Pereda v Madrid Movilidad SA (“Pereda”) in terms of entitlements when off sick.

2. Myth: we should dismiss EU national employees and expect the same treatment to British workers in the EU who will have to return

To do so would be unfair dismissal and discriminatory. We are still in the EU until Article 50 is invoked and until (currently) the two years have elapsed after the Art 50 process has been instigated. There will be free movement until the UK leaves.

3. Myth: the ECtHR (European Court of Human Rights) will have no further influence on the UK once we exit

Yes it will due to the fact that the UK signed up to the Council of Europe which is entirely separate from the EU. All cases involving human rights will still be heard by the ECtHR. What will change is the referral of cases to the European Court of Justice (ECJ) to ask the ECJ if the UK has implemented EU law correctly or interpreted a case properly on issues inter alia TUPE, collective consultation, discrimination or working time.

4. Myth: once we leave the EU we will no longer have to abide by laws that originate in the EU

Remember that a law passed by Europe does not have direct effect on the UK until legislation is passed here. Therefore although the laws may have originated in Europe, laws have already been passed in the UK to reflect them and until these laws are repealed we must abide by them. It is difficult to understand how the government will cope with the amount of negotiation needed to unravel all of the trade deals and changing employment laws immediately is unlikely to be at the top of the implementation list.

Commercial Landlords need to be energy efficient

Commercial property landlords in England will be legally required to upgrade the energy efficiency of their properties to at least Band “E” standard by 2018 before they can be leased to new or renewing tenants, the UK government has confirmed.

Over time, it is likely that the minimum E standard will rise.

From April 2018, it will be unlawful to let commercial (and residential) properties with an EPC rating of F or G, the two lowest grades of energy efficiency. The new rules will be extended to cover all leases by 2023. It is estimated that 20% of non-domestic properties could be in the F or G bracket.

Where a landlord sells the interest in the property before the works to bring it up to the minimum efficiency standard, the successor landlord will inherit liability.

Tenants may worry that some of the standard clauses in the lease will oblige them to effect works to improve the energy efficiency or to pay through the service charge for the landlords to do the work.

Assistance

Some assistance may come from the government with the Green Deal (“GD”) initiative. The GD may provide a financial solution to support energy efficiency refurbishment and retro-fit projects. Landlords and sub-letting occupiers will need to achieve an EPC rating of “E” or have implemented the maximum package allowable under the GD even if they fall short of an E rating.

Before 2018

–          All rentable  properties need to have an EPC assessment

–          Where the EPC rating is F or G or is at risk of becoming so, an Energy Efficiency Plan should be put in place to improve the energy efficiency of the property. Energy efficiency improvements should take advantage of void periods, lease breaks and/or be included as part of an on-going maintenance and plant renewal programme.

–          Energy efficiency works should be implemented before April 2018.

POTENTIAL EFFECT OF “BREXIT” ON EMPLOYMENT LAW

With the upcoming referendum, there are numerous concerns on the potential effect of the UK leaving the EU, none less than the potential implications on employment law. Although a large number of UK employment laws have originated from the EU, it is unlikely that a “Brexit” will have considerable impact on employment law. Wholesale changes to TUPE rights, for example, would be considerably unpopular and such fundamental changes are likely to be politically difficult.

There may be small changes however.

Human Rights Act

Should the Human Rights Act be repealed or watered down, this will have significant impact on trade unions. It would be possible to propose laws to make it tougher for trade unions to commence strike action as well as restricting other freedoms and rights of trade unions.

Holiday Pay and Working Time

Although unlikely that there will be any change to the legal obligation to have paid holiday, other changes such as the 48 hour weekly working time limit may be scrapped or amended, which could be popular with employers.

A simpler method of calculating holiday pay may be introduced to avoid adjustments relating to non-guaranteed overtime and commission payments. Also the requirement for employers to pay workers on sick leave in lieu of holidays on termination may be removed or changed.

Agency Workers

There may be changes to the current requirements for employers to provide agency staff with the same core terms and conditions as directly employed staff after 12 weeks; as well as the provisions requiring employers to notify employee representatives of certain information relating to agency workers in collective redundancy and TUPE transfer situations could change.

Employee Consultation and Discrimination

Again, there are unlikely to be substantial changes to the requirements to inform and consult employees, albeit that these regulations can be somewhat cumbersome. Similarly, removal or dilution of discrimination and equal pay protections are unlikely to happen due to the complications with the voters, as they are fundamental to current employee law.

Immigration

It would seem that a “Brexit” could cause significant issues with regards to immigration, both in regards to sending UK employees to the EU and also receiving people from current member states to the UK. Free movement of workers within the EU allows UK businesses to send their employees abroad to work at facilities in other member states free of regulatory burdens. Removing this right could mean that UK employers sending staff abroad would have to go back to applying for visas.

These assumptions are based on the UK leaving the EU altogether, but depending on the form that “Brexit” negotiations take the UK could seek to remain within the European Economic Area (EEA) or European Free Trade Area (EFTA). These negotiations could leave the UK bound by existing EU directives on working time, agency workers and collective consultation without the ability to influence these laws.

The Modern Slavery Act 2015 will require large commercial organisations, which are carrying on any part of their business in the UK with a global turnover of £36 million or more, to publish a slavery and human trafficking statement in each financial year. This requirement is expected to come into effect in October 2015.

The organisation must set out in the statement the steps it has taken that year to ensure that slavery or human trafficking is not happening within its business or supply chains, or state that it has not taken any such steps.

The Government considers that large commercial organisations have the influence and buying power to effect change in their supply chains to tackle the issue of modern day slavery and human trafficking.

The desired effect of the statement is to provide transparency to consumers, investors and members of the public about the steps, or lack thereof, that organisations are taking to eliminate slavery and human trafficking in their businesses and supply chains. It is considered that this transparency and public scrutiny will put commercial pressure on organisations to take action, due to the reputational damage and competitive disadvantage if they do not.

It is expected that this reporting requirement will encourage greater due diligence on and management of suppliers and will be particularly pertinent for organisations in sectors identified as suffering from modern slavery issues, such as the clothing, textiles and construction sectors.

Commercial organisations which fail to produce a statement as required under this Act may face enforcement proceedings by the Secretary of State.

We firstly would like to take the time to thank all those involved with the Directors Question Time Seminar, and especially to Barnes Roffe and HSBC for their promotion and for hosting the event itself.  The Seminar began with a general question about the ways in which a Seller of a business can make the process easier to manage.  Julian Goulding began the discussion on this topic and it quickly became the overall theme of the night.  As such, four key areas were identified as being essential to managing a sale:

Planning – This is the most important factor to consider.  Don’t wait until the Buyer begins enquiries, so have your anticipated answers ready.  This can’t be stressed enough.

Momentum – If the process moves too slowly all involved will lose steam and the whole endeavour will grind to a halt.  Keep yourself involved in the process and it won’t run the risk of stagnation.

Time – Plan for a third longer than you anticipate the sale to take and take into account the time of year.  Any holiday period is a major factor to consider even if it is still some time away.

Stress – This isn’t an after-hours project.  At some point in the process, this will take up a good part, if not most of your time and attention.  Try to effect a practical management strategy so as to give time to complete this project.

The points above bring projects such as this well within acceptable standards.  Keep in mind however that even with a dedicated legal team, your input is what will make the process as smooth and efficient as possible.