Retail & Consumer Horizon Scanner 2023

Requirement of an energy rating of E for properties before they can be let – from 1 April 2023 it will extend to commercial leases, including where a lease already exists.

Currently in its final stages in Parliament. This will address a local authority’s ability to let out vacant high street premises, where they are left unoccupied for over a year.

The Bill received its first reading in the House of Lords on 30 January 2023 and its second reading on 8 February 2023. It may receive Royal Assent in the spring of 2023.

The Bill will introduce the offence of fraud. This new offence (the scope of which is to be determined) could impact all businesses. The offence could lead to directors having criminal liability for the fraudulent acts of the company’s employees or, potentially, in circumstances where the company has somehow been involved in facilitating a fraud and did not have satisfactory anti-fraud measures in place.

They must register information about the entity and any beneficial owners with Companies House. Came into force in the UK on 1 August 2022 through the Economic Crime (Transparency and Enforcement) Act 2022. Indications suggest that it may receive Royal Assent in the spring of 2023.

Supply chains continue to be significant for retailers, given the uptake in value chain liability claims being brought in the UK. Retailers will have to assess their supply chains to ensure compliance with international and human rights obligations. The risk of reputational damage remains high.

An update is expected in October 2023 from the Ministry of Justice in relation to the draft rules on the extension to the FRC. Reform proposals include extending the FRC in fast-track civil cases worth up to £25,000, introducing an ‘intermediate track’ and new rules in relation to Part 36 offers, inter alia.

The ICO’s ICO25 strategic plan includes a commitment to produce and publish a ‘guidance pipeline’ to include its updated direct marketing code.

The Treasury’s consultation on bringing buy-now-pay-later lending into regulation is due to close on 11 April 2023. On 2 February 2021, the government announced its intention to regulate interest-free buy-now-pay-later products.

All FCA authorised retailers must have implemented the Consumer Duty into their organisations by the 31 July 2023.

Will enhance the CMA’s powers and ability to tackle breaches of competition and consumer law and empower its new Digital Markets Unit. The changes would see the CMA given power to declare companies in breach of consumer law without taking them to court first, and levy fines accordingly. These powers are expected to be in force October 2023.

The proposed reform of the data protection legislation in the UK is likely to bring changes that make life for retailers both easier and more difficult. From relaxing the rules around consent for website cookies to increasing the penalty for non-compliant online marketing activities – the changes will provide for a smoother and more pleasant online retail experience but ensuring compliance with the legislation will become even more important.

This will be effective from 1 April 2023.

Proposes to introduce duties on employers to prevent third-party harassment in retail at the workplace. Second Reading on 24 March 2023.

Aims to allow employees one week of unpaid leave to arrange dependant care.

Aims to allow employees up to 12 weeks of paid leave relating to neonatal care.

Rights for workers under fixed-term contracts.

The right to request flexible working will become a day 1 right and employees will be able to make two flexible working requests in any 12-month period.

Currently making its way through Parliament and will come into force a year after the Bill is passed. The Bill will broaden the scope of employers’ liability to protect their employees from harassment, including from third party harassment.

The launch of generative AI products such as ChatGPT has sparked renewed debate over the role of AI in society. There’s concern over the risks the technology might pose to safety, privacy, civil rights and jobs but also excitement over AI’s potential to revolutionise business operations and drive growth. The EU is leading the charge for better regulation of AI technology with its proposed AI Act and the UK Government looks set to follow suit with plans for a pro-innovation, non-statutory AI regulatory framework announced in March this year.

Due to launch in Europe in mid-2023, they will offer users of the patent system a cost-effective option for patent protection and dispute settlement across Europe.

Unitary Patent – Unitary Patents will make it possible to get patent protection in up to 25 EU Member States by submitting a single request to the EPO, making the procedure simpler and more cost effective for applicants.

Unified Patent Court – The Unified Patent Court (UPC) is an international court set up by participating EU Member States to deal with the infringement and validity of both Unitary Patents and European patents, putting an end to costly parallel litigation and enhancing legal certainty.

The Supreme Court will decide whether filing broad trademark specifications can amount to bad faith.

Draft guidance to come in relation to monitoring at work and handling information on workers’ health to follow.

The Information Commissioner’s Office (ICO) has announced that its Employment Practices Code (not yet updated for UK GDPR or the Data Protection Act 2018) will be replaced by an Employment Practices Hub.

Introduced in January 2023, this is making its way through Parliament and will allow the Secretary of State to make regulations for minimum levels of service during strike periods. If passed, this legislation will allow an employer in those sectors to serve a ‘work notice’ on a union notifying it of a strike under TULR(C)A 1992, s 234A, identifying the persons required to work and the work to be carried out so that the relevant minimum service level (as set out in regulations) is provided.

Unions will lose their protection from certain tortious liabilities if they do not take reasonable steps to ensure that the workers identified in the notice comply with it. Those workers identified in the notice will lose their unfair dismissal protection if they do not comply with the notice.