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As part of its UK Employment Law Review in 2012, the UK Government announced that it intended to remove the third-party harassment liability provision from section 40(2) of the Equality Act 2010. This provision was repealed on 1 October 2013. This post considers the impact of the repeal and whether employers are safe from claims made by their employees based on harassment by their outsourcing or other third party contractors.

Background

In October 2010, section 40(2) of the Equality Act introduced the concept that employers could be liable for harassment of their employees by a third party where the harassment was persistent and based on a protected characteristic. Under this provision, employees could bring a claim against their employer if they had been subjected to discriminatory harassment by third parties during the course of their employment on at least two occasions and their employer had failed to take any reasonably practicable steps to prevent the harassment. This provision had potentially far reaching impact as employers became potentially liable for acts committed by third parties such as their suppliers, customers or visitors.

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On 19 November, Datateam won permission to appeal from an unreported decision of District Judge Bell sitting in the Reigate County Court on 12 June. The facts of the case, which related to unpaid invoices for database maintenance services, are not of interest except to say that the services agreement did not establish a contractual lien over the customer’s data, that is, it did not contain an express term requiring the return of the data to the customer at the end of the contract period.) What is of interest is that when it hears the appeal, the Court of Appeal will consider “whether or not a service provider can claim a [common law] lien over electronic data which it manages.”

In English law, a common law lien normally arises in respect of tangible property but not in the case of intangible property such as intellectual property. The classic example is a mechanic who is entitled to exercise a lien over (hold onto) a customer’s car until the customer settles his bill. However, electronic data is intangible property. In granting Datateam permission to appeal, Lady Justice Arden commented that there is no English authority “which establishes that a [common law] lien is exercisable over intangible property.” She thought this was “a point of law… worthy of consideration… since it could have very considerable implications if there was no lien.”

The Court of Appeal’s decision is eagerly awaited.

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In the early days of outsourcing IT as a managed service, it was not at all unusual for a managed services price to be all inclusive of assets, services and facilities. That bundle of services and assets usually came with a “black box” style pricing that was devoid of transparency and created a myriad of challenges from changes in technology to addressing equipment refresh. Worst of all, these “all in” deals made it virtually impossible to fire your service provider because of the challenges of removing the assets from the supplier upon termination. Despite these challenges, there are times when a customer’s asset strategy still calls for acquiring assets from their service provider. In those circumstances, customers should be aware of the inherent risks in including IT assets in an IT managed services agreement and structure the transaction to minimize the risks.

Assets could be included for just about any service category of a managed services agreement. For the purpose of this discussion we are going to focus on the Servers and Storage assets that comprise the central compute services for a company.

Margin Expansion

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As many who have struggled to find a clear way to comply will know, an important change to the EU E-Privacy Directive (implemented by many EU states late 2011/2012) meant that, in summary, websites which target/monitor/profile Europeans have been obliged to seek consent to use cookies via an opt in mechanism. However, given each member state was left to its own devices to implement this change at a national level and given some fierce lobbying by business to try to avoid strict “I agree” mechanisms, this has meant that a range of approaches have been taken to what precisely constitutes opt in consent, with some regulators (e.g. the Dutch) taking a more literal interpretation of the Directive, whilst others (e.g. the English) taking a much more liberal approach.

This patchwork approach across Europe has caused serious headaches for those conducting e-business in multiple EU countries., A compliance mechanism could be acceptable for one country, only to be slapped down (or worse, risk a fine) in another.

In an attempt to clear up some of the confusing and often contradictory views, the Article 29 Working Party, a body made up of the EU’s data protection regulators, released a new guidance note on 14th October 2013.

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We previously reported on the Massachusetts computer services tax that became effective on July 31st after the legislature overturned Governor Deval Patrick’s veto of An Act Relative to Transportation Finance. Facing strong opposition from the state’s technology sector the Massachusetts legislature retroactively repealed the tax by passing An Act Repealing the Computer and Software Services Tax, which was signed into law on September 27th. Now, customers who paid the repealed tax should take steps to ensure they are promptly repaid or credited the appropriate amount by their vendors.

The Massachusetts Department of Revenue (DOR) has issued guidance to vendors regarding how to address the repeal. If a vendor collected but did not remit the taxes to the Massachusetts DOR, it is required to make reasonable efforts to return the taxes to the customers from whom they were collected. If a vendor collected and remitted the taxes to the Massachusetts DOR, the vendor may file an abatement application. Vendors should be keenly aware that abatement applications related to the repealed computer services tax are due by December 31, 2013. Furthermore, although Vendors may repay or credit customers prior to receiving an abatement, they must do so “within 30 days of receiving said abatement.” Although the Massachusetts DOR guidance is helpful, Vendors should consult their tax attorneys to determine their particular obligations.

Customers may consider reviewing applicable invoices for periods (a) from July 31, 2013 through September 27, 2013 to determine the repayment or credit amount they are owed, if any, and (b) after September 27th to ensure the vendors have updated their invoicing practices to account for the repeal. Customers should then contact their applicable vendors to ensure they are promptly repaid or credited the appropriate amount. If a vendor already remitted the taxes to the Massachusetts DOR, the customer should encourage the vendor to promptly file an abatement application. If the vendor resists, the customer may want to review the agreement between the parties to determine whether the vendor has a contractual duty to comply with the request. Last, customers should be aware that if (i) a vendor repays or credits a customer after filing an abatement application and (ii) the government’s refund to the vendor is delinquent, then the customer is entitled to any interest earned from the government.

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October 1st marked the beginning of open enrollment for the federal and state health care exchanges (“Exchanges”) created to comply with the Affordable Care Act (“ACA”) of 2010, commonly referred to as Obamacare. The creation of the state and federal exchanges was and is a massive undertaking, involving the “unprecedented task of linking databases maintained by insurance companies, [and] states and federal agencies, including the Internal Revenue Service.” (“Obamacare Web sites see much interest, some glitches”, The Washington Post, October 2, 2013).

As anyone who has been involved in large scale IT projects knows, these types of projects invariably encounter glitches before they work smoothly, and the health insurance Exchanges are no exception. Many users of these Web sites encountered error messages or experienced significant delays when they tried to access the Exchanges to research their health insurance options.

Federal and state health officials initially blamed the delays on higher-than expected site traffic, and pointed out that any new technology is going to have errors at first that need to be corrected. But the Exchanges have been up and running for over three weeks now and issues remain, particularly with the federal exchange HealthCare.gov. Some specialists have suggested that extensive changes are required before the site will operate properly and that the repairs could take months. (“Contractors See Weeks of Work on Health Site“, The New York Times, October 20, 2013) The problems have created mounting pressure on the current administration, including plans for a congressional hearing later this month and calls for senior administration officials to lose their jobs. (“HealthCare.gov launched despite warning signs”, The Washington Post, October 22, 2013).

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Customers increasingly are taking advantage of Software as a Service (SAAS) and other cloud-based solutions available in the marketplace. There are of course many legal and commercial issues that customers should consider when evaluating contracts provided by suppliers of these solutions. This post focuses specifically on issues arising when SAAS or other cloud solutions will be provided from an offshore location. For example, data hosting, help desk/service desk, implementation, and disaster recovery services are often provided from India, the Philippines and other offshore locations in support of solutions that are delivered in North America and Europe.

  • Transfer of Customer Data Offshore. Customers should consider whether there must be restrictions on the transfer of data offshore (whether due to internal security policies, industry standards, obligations within downstream customer contracts, or applicable laws and regulations). If the data contains personally identifiable information (PII), protected health information (PHI) or similar types of data covered by data privacy laws, the data most likely should remain onshore. A customer may decide that other data may be transferred offshore, but only if additional safeguards, contract restrictions or liability provisions are added to the contract with its service provider.
  • Access to Customer Data or Systems from Offshore. This issue turns the item above on its head, a bit: even when customer data and systems remain onshore, customers should consider whether personnel from the SAAS or cloud service provider should have access to such data or systems from offshore. For example, offshore personnel who are accessing service desk records or performing break-fix services may request the ability to access a customer’s onshore systems. This may or may not be acceptable in any case, or it may be acceptable only if certain agreed-upon restrictions are followed.
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The Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) is in the spotlight as part of the UK Government’s Employment Law Review.  Launched in 2011, the purpose of the review is to reform employment law in order to achieve a fair, effective and flexible labour market in the UK[1].  The Government says that these reforms will support better relationships between workers and employers and are aimed at making evolutionary improvements to the labour market which will retain flexibility and dynamism and benefit individuals, employers and the economy.

TUPE implements the EU Acquired Rights Directive (“ARD”) in the United Kingdom.  It protects employees’ terms and conditions of employment when a business is transferred from one owner to another.  Where TUPE applies, there is an automatic transfer – for the affected employees it is as if their employment contracts had originally been made with the new employer, with their continuity of service and, subject to a few exceptions, other employment rights all preserved.

In an outsourcing context, TUPE will often apply because of the service provision change (“SPC”) rules. A SPC will usually occur where there is a change of service providers or a contracting in or out of services.  TUPE is complex and is viewed by many as overly bureaucratic, leaving little room for new employers to make post-transfer changes to an employee’s contract or to dismiss them fairly.  Critics say the SPC provisions, which were introduced in 2006, went beyond the requirements of the ARD- so called “gold plating.”  Taken in the round, the impact of TUPE, in its current formulation, may constrain the incoming service provider’s ability to restructure the inherited work practices, thereby impeding innovation and cost reduction.  TUPE has also spawned complex indemnity and post-contract verification provisions in outsourcing agreements, reflecting the additional complexity associated with personnel transfers. 

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Google has figured out that I shop for a lot of children’s clothing online, as my two children grow like weeds. Every time I launch a search, my banner ads link to brands that I have bought previously or similar brands that other consumers may have purchased. That is Big Data at work, as it is being used to identify other brands that I might be interested in purchasing based on shoppers with similar consumer profiles to mine. But let’s say that the next banner ad I receive isn’t for children’s clothing, but is instead for an all-inclusive Caribbean vacation. Well, I have never searched for Caribbean vacations, why would this be turning up? Again, this is Big Data at work, because patterns in human behavior have informed Google that people with small children are likely good targets for a quick getaway vacation. This is an example of the value of Big Data in predicting individual consumer behavior based on the behavior of many.

“Big Data” is the somewhat uncreative but accurate term for the process of collecting, culling, and categorizing of data from diverse sources on a massive scale. Through the application of algorithms, companies are analyzing Big Data in order to see patterns in human behavior, and (most commonly) using it to develop targeted, individualized marketing. The primary goal of Big Data is to learn from a large body of information things that we could not comprehend when we used only smaller amounts. Recent trends point to an increase in the use of Big Data, but there are several cautionary points from a legal and privacy perspective to consider.

What are the uses of Big Data, and who uses it? The potential benefits are wide ranging, but can be categorized as follows:

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