Relief for Businesses, pain for Insurers?

Following lockdown, a host of businesses had to close and many looked to insurers to cover their losses.

But many insurers disputed the claims, arguing policies were never meant to cover such unprecedented restrictions.

The test case was brought by the Financial Conduct Authority and had the potential to affect 370,000 mostly small businesses.

The insurers can appeal against the decision. Policyholders should hear from their insurer within seven days.

“Today’s judgement is a significant step in resolving the uncertainty being faced by policyholders.

“Coronavirus is causing substantial loss and distress to businesses and many are under immense financial strain to stay afloat.”

The Judgment handed down in the FCA’s case on Business Interruption Policies has now changed the game for both, insurers and businesses.

Under the new ruling many businesses that suffered losses (some substantial) due to COVID-19, will be able to make and claim under the Business Interruption part of their insurance policy.

This is because the  court ruled that the ‘disease’ and/or ‘denial of access’ clauses  in some business interruption policies should have meant they were covered.

 As with all court decisions of this kind, the wording of each policy could lead to different outcomes, so there are still likely to be insurers who reject claims made by their insured where the wording of the policy does not match the wording of the policies considered by the court when making its determination.

As the long term effect of this decision. There will still be some litigation over policies with certain wording, and I suspect insurance premiums may be increased going forward (someone has to pay for all these claims!).

If you have any questions on the above or litigation in general, please contact Michael Shapiro, Head of GSC’s Commercial Litigation & Dispute Resolution, directly on: mshapiro@gscsolicitors.com or 0207 822 2246.

https://www.bbc.co.uk/news/business-54158830

© 2020 GSC Solicitors LLP. All rights reserved. GSC grants permission for the browsing of this material and for the printing of one copy per person for personal reference. GSC’s written permission must be obtained for any other use of this material. This publication has been prepared only as a guide to provide readers with general information on recent legal developments. It is not formal legal advice and should not be relied on for any purpose. You should not act or refrain from acting based on the information contained in this document without obtaining specific formal advice from suitably qualified advisors.

 

Business Interruption Scheme update

A useful update from the FCA regarding the High Court test case concerning Business Interruption (BI) Insurance.

Interestingly, the update also indicates a list of insurers and their respective policy wordings which are being looked at.

The FCA has today published an update on our High Court test case concerning business interruption (BI) insurance. You can find more information about this announcement in our press release or on our dedicated BI insurance webpage.

As part of this, we have published our proposed representative sample of 17 policy wordings and other key documents which will form the basis of the test case. We are inviting policyholders, their insurance intermediaries, insurers, other stakeholders and their legal advisers to provide their comments on these documents by 3pm on Friday 5 June.

If you would like us to assist you with any issues in relation to Business Interruption Scheme for your business, please do not hesitate to contact our dedicated team on helpmybusiness@gscsolicitors.com or  Michael Shapiro on mshapiro@gscsolicitors.com or 0207 822 2246 or Hateem Ali on hali@gscsolicitors.com or 0207 822 2209.

https://content.govdelivery.com/accounts/UKFCA/bulletins/28e64c8

© 2020 GSC Solicitors LLP. All rights reserved. GSC grants permission for the browsing of this material and for the printing of one copy per person for personal reference. GSC’s written permission must be obtained for any other use of this material. This publication has been prepared only as a guide to provide readers with general information on recent legal developments. It is not formal legal advice and should not be relied on for any purpose. You should not act or refrain from acting based on the information contained in this document without obtaining specific formal advice from suitably qualified advisors.

 

Major changes for British National (Overseas) passport holders

British National (Overseas) passports were issued to people in Hong Kong by the UK before the transfer of the territory to Chinese sovereignty in 1997.

Presently, a BNO passport holder is usually granted 6 months leave to enter on arrival in the UK but does not have the right to study, live and work in the UK.

The British government has indicated that if China implements the proposed national security legislation, the UK will allow BNO passport holders to come to the UK and to apply to work and study for extendable periods of 12 months from within the UK together with a pathway to full British citizenship upon the completion on the required residency period.

The UK could offer British National (Overseas) passport holders in Hong Kong a path to UK citizenship if China does not suspend plans for a security law in the territory, UK Foreign Secretary Dominic Raab says.

There are 300,000 BNO passport holders in Hong Kong who have the right to visit the UK for up to six months without a visa.

https://www.bbc.co.uk/news/uk-52842303

If you have any questions or concerns, contact Hateem Ali, Head of Corporate & Private Immigration, directly on hali@gscsolicitors.com or 020 7822 2209.

© 2020 GSC Solicitors LLP. All rights reserved. GSC grants permission for the browsing of this material and for the printing of one copy per person for personal reference. GSC’s written permission must be obtained for any other use of this material. This publication has been prepared only as a guide to provide readers with general information on recent legal developments. It is not formal legal advice and should not be relied on for any purpose. You should not act or refrain from acting based on the information contained in this document without obtaining specific formal advice from suitably qualified advisors.

 

Intellectual Property: WIPO PROOF

Today WIPO – the World Intellectual Property Organization – launched a new service called WIPO PROOF to assist creators to evidence and prove the date at which certain assets were in existence. Whilst there are a large range of possible uses, this service may be especially useful in relation to copyright materials, providing authors with an easy and verifiable method by which to confirm that a work was in existence at a certain date.

The initial costs of the registration of each document are low and so this service should be available to a large number of creators.  However, the requirement to have a WIPO account in order to purchase the tokens that are used for the registration will be a barrier to individuals accessing the service themselves.

WIPO PROOF is an easy-to-use global, online service that rapidly generates tamper-proof evidence proving that a digital file existed at a specific point in time, and that it has not been altered since that time. The service creates a WIPO PROOF token, a date- and time-stamped digital fingerprint of the file or data, which can be used as evidence in a legal dispute. WIPO PROOF tokens can be purchased one at a time for a modest fee, or in bundles of multiple tokens at reduced rates valid during a two year period.

If you would like to know more about the system, please visit the WIPO website (https://wipoproof.wipo.int/wdts/) or contact Justin Goldspink on 0207 822 2244 / jgoldspink@gscsolicitors.com or Ross Waldram on 0207 822 2236 / rwaldram@gscsolicitors.com on any Intellectual Property-related issues.

© 2020 GSC Solicitors LLP. All rights reserved. GSC grants permission for the browsing of this material and for the printing of one copy per person for personal reference. GSC’s written permission must be obtained for any other use of this material. This publication has been prepared only as a guide to provide readers with general information on recent legal developments. It is not formal legal advice and should not be relied on for any purpose. You should not act or refrain from acting based on the information contained in this document without obtaining specific formal advice from suitably qualified advisors.

 

Covid-19: Employment-related issues

The Coronavirus crisis is making life uncertain for everyone. These are challenging and worrying times.

However, it will be business as usual for the Employment Law team at GSC who will still be available to provide advice and deal with your queries, even if the team are working remotely.

We have already received questions which are particularly relevant to the current situation such as:

Q:  What is the position regarding paying my staff if the business has to close due to Coronavirus?

A: If employees are working from home, they should continue to be paid as per their contracts of employment. If it is not possible to work from home e.g. the business is a restaurant, but the employer has shut the premises and asked its staff not to go in, then other than in specific circumstances e.g. a contract of employment allows it, there is still an obligation on the employer to pay their staff as per the contracts of employment.

Nobody knows how long the current crisis will continue. If employers consider that they can’t continue to pay in accordance with contracts of employment, they could suggest to staff that they take a temporary reduction in pay or hours. This cannot be imposed by the employer but can be done after a careful discussion with employees (please take legal advice first!) and with the consent of employees.  If a business is facing severe difficulties, and there is a sufficient reduction in work, then depending on the circumstances, an employer could ultimately consider the last resort of redundancies.

Q: I am worried about catching Cornavirus and don’t want to go into work. What can I do?

A: Your employer should pay attention to your concerns and try to assist you. For example, by suggesting that you change your hours to so as to avoid using public transport at busier times. You could suggest taking days off as holiday or unpaid leave,  but your employer is not obliged to agree to this. Be careful because simply refusing to turn up to work could lead to disciplinary action against you.

Q: My child’s school has closed and I need to stay at home to look after them. Will I get paid?

A: The assumption is that you will not be working from home for that time, and that nobody is unwell. In those circumstances, there is no statutory right to be paid for this time off. However, depending on your contract of employment, your employer may agree to pay you for this time.  Bear in mind that your request must be reasonable for the situation.

If you have any employment law queries, please do not hesitate to contact David Nathan directly at dnathan@gscsolicitors.com or on 020 7822 2247.

© 2020 GSC Solicitors LLP. All rights reserved.  GSC grants permission for the browsing of this material and for the printing of one copy per person for personal reference. GSC’s written permission must be obtained for any other use of this material. This publication has been prepared only as a guide to provide readers with general information on recent legal developments. It is not formal legal advice and should not be relied on for any purpose. You should not act or refrain from acting based on the information contained in this document without obtaining specific formal advice from suitably qualified advisors.

A message from Senior Partner Saleem Sheikh

Dear Clients and Friends

I hope that this message finds you and your families well during this exceptional and difficult time.

I am writing to you to reassure you that at GSC Solicitors LLP we are ensuring that our clients continue to receive  the highest levels of service, whilst of course taking actions to protect the wellbeing of our clients, staff, their respective families as well as the wider community.

We are closely following all guidance issued by Public Health England and the World Health Organisation regarding Coronavirus (COVID-19) and constantly adapting to the ever changing situation. In particular, we have been committed to agile working for some time and are therefore able to transition to remote working efficiently to continue to service all our clients as usual.

Our priority remains the best interests of our clients and in particular the concerns that clients will understandably have regarding their staff and businesses. We are available to speak to clients about the challenges they are facing as well as to provide pragmatic advice on any specific concerns whether it is in relation to managing staff, dealing with cancelled contracts, managing supplier distress, dealing with tax concerns or cybersecurity issues.

We will be continuing to issue thought leadership on our website and Social Media channels addressing the key concerns that clients may have with respect to Coronavirus. In the meantime, please feel free to contact me personally or any of your usual contacts here at GSC.

I look forward to seeing you again soon and in person but for now we are here for you and you can reach us at any time by email and telephone.

On behalf of all of us at GSC we are wishing you and your loved ones to stay well.

Kind regards,

Saleem Sheikh

Hostile environment U-turn

International students will be allowed to stay in the UK for two years after graduation to find a job, under new proposals announced by the Home Office.

The move reverses a decision made in 2012 by then-Home Secretary Theresa May that forced overseas students to leave four months after finishing a degree.

International students bring significant economic contributions to the UK economy and perhaps more importantly  directly to the local economy but since 2012 owing to the lack of a post-study work opportunities in the UK this meant that UK universities were at a  competitive disadvantage in attracting those students as compared to other countries, which afforded international students such a pathway into work following the completion of their studies.

The re-introduction of the Post Study Work migrant category for international students marks an important U-turn on one of the key provisions of the “hostile environment” policies introduced by the previous governments.

Perhaps next on the list may be the reintroduction of the Highly Skilled Migrant category? We shall wait and see.

https://www.bbc.co.uk/news/uk-49655719

If you have an inquiry on any immigration-related matters, please contact Hateem Ali directly on: 0207 82222 or hali@gscsolicitors.com

Sorting Fuct from Fiction – US Supreme Court decision of the registration of profanities

Designer Erik Brunetti’s line has been given a green light after justices agree ban blocks free expression. Justices came to that conclusion after the designer Erik Brunetti’s fashion line ran into trouble with the US patent and trademark office (PTO), which registers product names. Brunetti was seeking a trademark for his brand, FUCT, which he says is pronounced letter by letter. (The brand’s Twitter bio suggests it stands for “friends U can’t trust.) But the trademark office wasn’t thrilled with the branding and turned down Brunetti’s registration, under a law banning “immoral or scandalous matter”. In the words of PTO authorities, FUCT was “a total vulgar”.

Yesterday, the US Supreme Court gave its decision on the registration of the FUCT brand as a trade mark in respect of clothing.

The applicant had applied to register the name of its existing clothing brand FUCT as a trade mark in the US but the initial application was refused by the USPTO on the grounds that the proposed mark was scandalous and immoral. The decision was challenged by the applicant on the basis that the ban on registering the mark was an impediment to his free speech. In giving its the decision, the US Supreme Court accepted that the trade mark will be read (at least by some) as a reference to a swear word, but by deciding which trade marks where immoral the USPTO was discriminating on the “basis of viewpoint”. This follows a similar decision of  the US Supreme Court in relation to disparaging marks given in relation to an application of “The Slants” made by the Asian-American front man of the band of the same name.

The case can be contrasted with the registration of FCUK by French Connection, which was challenged in 2006 on the grounds that it was contrary to public policy or accepted principles of morality. In that case the UKIPO decided that a registration of the word ‘Fuck’ would not generally be acceptable to the public (and the use of that word was also prohibited by the Advertising Standards Agency).  That point was not challenged before Arnold QC (acting as an Appointed Person) and was consistent with the earlier rejection of the trade mark ‘FOOK’. However, the registration of FCUK was allowed on the basis that it was not itself a swear word.  Whilst it could be used in a way which evoked the swear word (and the applicant had used it in such a manner), this did not mean that the mark should necessarily be revoked.  The USPTO also allowed FCUK to be registered as a mark in the US.

The latest decision from the US Supreme Court is a further relaxation of the rules around the registration of contentious and scandalous marks in the US.  It is doubtful that any trade mark registry will now be flooded with marks containing profanities, but brands seeking to maintain a rebellious edge will no doubt see how far the boundaries can be pushed not only in the US but in the UK and other countries.

For any IP and/or trademark-related advice, please contact Ross Waldram on 0207 822 2222 or rwaldram@gscsolicitors.com

https://www.theguardian.com/law/2019/jun/24/fuct-fashion-supreme-court-strikes-down-trademark-office-ruling

 

Forcing change by ‘naming and shaming’ – gender pay gap reporting

The government now sees equal pay as a vote winner. The requirement for large companies (250+ staff) to publish their gender pay gap figures is not new. It was first proposed, but not implemented, by the Labour government under the Equality Act 2010 and rejected by the Tories during the coalition government, preferring a voluntary approach. This resulted in minimal responses. However, the majority of UK employers are small to medium sized companies, so the impact of these regulations will be limited.

Publication of gender pay gap information for large companies is now required by April 2018. There are no financial penalties for failing to comply and any enforcement action by the ECHR is likely to be minimal. It is the ‘naming and shaming’ from government websites or league tables which will be most damaging for a company if their figures do not look good.

Some companies may well have valid reasons for gender pay differences. Whilst explanations can be provided with the published information, these may not be sufficient to counter the reputational damage caused by negative publicity.

The government hopes that having given companies 12 months to prepare for publication, that will allow them sufficient time to address any gender pay disparity and implement change. It is already starting to take effect.

However, if the government is serious about promoting gender pay equality, it should consider reinstating equal pay questionnaires which were abolished during the coalition government. Without a statutory process, it is far harder for women (and men) to establish if their co-workers are being paid more than them for the same work. Gender pay differences will not be resolved simply by ‘naming and shaming’ large companies.

Thousands of employers will begin to record their gender pay gap figures for the first time and will have to publish their first figures before April next year.

The rules which will be enforced by the Equality and Human Rights Commission require companies who employ more than 250 people to provide data about their pay gap, the proportion of male and female employees in different pay bands, their gender bonus gap, and a breakdown of how many women and men get a bonus. The legislation will affect around 9,000 companies, who collectively employing more than 15 million people.

https://www.theguardian.com/society/2017/apr/06/gender-pay-gap-law-could-have-significant-impact-say-experts

New Immigration Category Alert – European Temporary Leave to Remain

Unlimited numbers of EU migrants will still be able to come to Britain for up to three years even if there is no deal, the Government admitted last night.

Sajid Javid said that citizens from the bloc would be allowed to enter the UK to visit, work or study after Brexit day on March 29.

It seems as if every day we have a new Home Office announcement. Here is today’s latest.

EU citizens coming after March 29 will be granted European Temporary Leave to Remain. This new policy does not apply to EU citizens in the UK before Brexit, whose rights to live and work will be protected by the EU Settlement Scheme.  The initial Temporary Leave will be granted for three years and EU migrants wanting to stay more than three years will need to apply again under new immigration rules which will come into force on January 1, 2021.

As for family members of EU citizens, with this new form of leave they will need to apply in advance for a family permit.

If you have a question, please contact GSC’s Head of Corporate and Private Immigration, Hateem Ali, at: hali@gscsolicitors.com or 0207 822 2222

https://www.dailymail.co.uk/news/article-6642389/Sajid-Javid-confirms-EU-migrants-able-enter-UK-three-years-Brexit.html