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Legal

The CPA offers advice and assistance to Members on Employment Law, Contract Law, Road Transport Law, Commercial Litigation and some aspects of Tax and PAYE.

 

We will be unable to represent Members in a Court of Law, as the CPA does not employ solicitors or barristers; however we would be able to recommend specialist solicitors familiar with the Industry who can represent you, but this would be at your own expense.

 


 

 

General Data Protection Regulations (GDPR) 2018

 

As from the 25th May 2018, the General Data Protection Regulations (GDPR) will come into effect, and will update and strengthen existing data protection law.

 

Under the plans, individuals will have more control over their data by having the 'right to be forgotten' and ask for their 'personal data to be erased'.

 

Businesses will be supported to ensure they are able to manage and secure data properly. The data protection regulator, the Information Commissioner's Office (ICO), will also be given more power to defend consumer interests and issue higher fines, of up to £17m or 4% of global turnover, whichever is the greater, in cases of the most serious data breaches.

 

The legislation will:

-        make it simpler to withdraw consent for the use of personal data

-        allow people to ask for their personal data held by companies to be erased

-        enable parents and guardians to give consent for their child's data to be used

-        require 'explicit' consent to be necessary for processing sensitive personal data

-        expand the definition of 'personal data' to include IP addresses, internet cookies and even DNA

-        update and strengthen data protection law to reflect the changing nature and scope of the   digital economy

-        make it easier and free for individuals to require an organisation to disclose the personal data it holds on them; and

-        make it easier for customers to move data between service providers.

 

New criminal offences will be created to deter organisations from either intentionally or recklessly creating situations where someone could be identified from anonymised data.

 

Data protection rules will also be made clearer for those who handle data, but they will be made more accountable for the data they process, with the priority on personal privacy rights. Those organisations carrying out high-risk data processing will be obliged to carry out impact assessments to understand the risks involved.

 

For further information on this subject, please go to the Information Commissioner's Office website - www.ico.org.uk external link

 


 

 

Criminal Finances Act 2017

 

The Criminal Finances Act 2017 came into force on the 30th September, and represents an overhaul of the Proceeds of Crime Act 2002.

 

One aspect of this new legislation is that it is now a criminal offence if a UK business fails to prevent an employee or any person associated with the business from assisting in tax evasion.

 

The offence will apply to partnerships and businesses, and will make the business vicariously liable for these criminal acts, even if senior management were not involved or were unaware that this practice was going on.

 

A business will have a defence if they can prove that they had reasonable prevention procedures in place to avoid the assistance in tax evasion, or that it was not reasonable in the circumstances to expect there to be procedures in place.

 

Her Majesty's Revenue and Customs have published a guidance document, and it states that:

 

'If a relevant body can demonstrate that it has put in place a system of reasonable prevention procedures that identifies and mitigates its tax evasion facilitation risks, then prosecution is unlikely as it will be able to raise a defence.'

 

For more information please speak to your accountants and/or auditors on this subject.

 


 

 

Document Retention

 

With ever increasing demands placed on companies to ensure that they are complying with legislation. Paperwork is becoming a bureaucratic necessity. Paperwork relating to employees: their health and welfare, disciplinary and grievance issues, technical and training matters. Other areas of note include: Health and safety polices, insurances, annual account audits and all matters associated with Her Majesty’s Revenue and Customs (HMRC).

However, under this myriad of legislation and statutes, what some companies may be remiss at understanding is the length of time these documents must be retained by the company.

To use the simple example under the Limitations Act 1980, a contract for instance has a ‘shelf-life’ of 6 years. This means that one party to the contract has up to 6 years to bring a claim against another, and so the documentation regarding that particular contract would ideally need to be kept for that length of time. Yet under this Act, different documents may be required to be kept for different periods. Below is a table which outlines some examples regarding employment records.

 

Type of employment record Retention period or recommendation

Job applications & interview records of unsuccessful candidates

6 months of notifying unsuccessful candidates
Personnel and training records Up to 6 years after employment ceases

Contracts of employment and amendments

Up to 6 years after employment ceases
Annual leave records 6 years or possibly longer if leave can be carried over from year to year
Immigration checks 2 years after the termination of employment


What becomes clear is two things: that whatever system a company adopts to contain all these records, the system must be easily manageable and accessible; and second, a company must comply with the Data Protection Act 1998 and the General Data Protection Regulations 2018, particular on information pertaining to current and former employees.


It is advisable to periodically review internal systems which the company has adopted: to ensure that records are secure, out-of-date records are correctly disposed of, and employees are updated of any changes made to the length documents are retained.

 

 

 

 

 

 

 

 

 

 

 

 

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