Alexa Lamont
Managing Associate
Knowledge Lawyer
Welcome everyone to this, um, webinar. Uh, it is on a Retail Horizon Scan, um, looking at upcoming legal developments in 2026 for the retail sector. Um, thank you so much for joining us today. Uh, we are going to scoot through, um, some really interesting topics so I hope you find it really useful. Um, if you have any questions during the session there should be a Q&A function, if you can drop your, um, questions into that on Zoom, um, and then if we have time at the end, uh, then we’ll go and have a look and see if we can answer some of those questions for you. Um, today I am joined by, uh, some brilliant speakers. Uh, firstly we have, um, Adam Turner who is a partner, um, and knowledge lawyer in the Employment Law Team and he’s going to be taking us through, um, some points of the Employment Rights Act 2025. And then we also have, uh, Cassie Hill who’s a partner and head of IP Enforcement at Mishcon. Um, and she’s going to be talking about IP protection and enforcement. Um, and then finally, my name is Alexa, I am a knowledge lawyer in the Commercial Team and I’m going to be having a look at some updates around consumer and advertising law. Um, and then I’ll also cover just a few, um, other updates that, um, we put together for our Retail Horizon Scan document. That’s, um, a web page and PDF that you can download from our website. And if you haven’t got a copy yet, I really recommend you download it, it’s a really good snapshot of what’s coming up in the year ahead. Um, so as a quick outline, as I’ve just said, this is the order we’re going to cover stuff, um, we’ll start with the Employment Rights Act, we’ll then move on to IP, then consumer and advertising and the other key developments and that will cover things about real estate, immigration, commercial and tech. Um, and then finally, the questions at the end.
So I’m going to, uh, hand over to Adam to start off talking about the Employment Rights Act.
Adam Turner
Partner
Knowledge Lawyer
Thank you very much Alexa. So hello everyone, uh, I’m going to talk to you very briefly about the, the New Employment Rights Act. Um, this introduces the biggest changes in employment law that we’ve seen in at least a generation, potentially ever. Um, there are over 30 measures, um, uh, set out in the Act, um, and many of them are going to have a very significant impact on the retail and hospitality sectors. So, we’ll start with, oh, apologies. We’ll start with precarious workers. So by precarious workers I mean those workers who have little or no job security. Um, and, uh, the Employment Rights Act focusses on zero hour contract workers. So basically those who have no guarantee of any working hours or who have a guarantee but it’s only for a tiny, tiny number of hours per week. Um, but in fact where those workers, even though they don’t have those guarantees, they actually work for you for a substantial number of hours, uh, week in week out. For example, you have somebody on a zero hour’s contract who works 35 hours a week regularly. There are two key rights, um, that are being introduced to protect these sorts of workers and the first is, um, uh, a right to be given a guaranteed hour’s contract. So this is an obligation on you as employers to offer a guaranteed hour’s contract once there is a track record of consistently working these high significant hours on a regular basis. So imagine a situation where, for example, you are preparing for a seasonal surge, you might be in the run up to Christmas for example, you hire your casual workers, put them on zero hours contracts. Those people work 35 hours a week in the run up to Christmas. If it turns out that they’ve ticked all the boxes for the new right, then at the end of the Christmas period, if they qualify, you then have to offer them a 35 hour a week contract going forward. Even though that’s the point of which you no longer need them to work those hours because the, you know, the Christmas period is over.
The sort, the second rights being introduced is in relation to shifts. So, first of all for the first time, employers are going to have a statutory obligation to give reasonable notice when they introduce shifts and when they make changes to shifts and if you actually, um, cancel or change shifts on short or no notice, then employers are going to be entitled to compensation for that as well. So you can imagine the scenario where, for example, you have your shift arrangement worked out and you have your zero hour’s worker and they call in sick at the very last minute. Um, you think, quite understandably, my gosh, I need to replace them; I need to find somebody else to cover their shift. So you ask around the rest of that worker population, you go, look I realise this is short notice but is there any chance you can now, um, cover this person’s shift because they’re off sick. Now one would hope that that would be reasonable notice and you wouldn’t be penalised for actually asking somebody else to cover at the last minute but it’s not yet clear. Both of these rights reduce the amount of flexibility that you can offer, uh, flexibility that you have in, in work in your workforce. So you may think, well okay, if these rights are going to affect people who I engage directly to work for me, why don’t I just go and get agency workers to do this for me so I can use them for flex, uh, in a flexible way. Unfortunately the Employment Rights Act actually says that agency workers get exactly the same rights as those who you engage directly. The only way you are going to be able to actually get round or avoid having to comply with these new rights offering guaranteed hours and dealing with shifts and compensating people when shifts change at the last minute, um, is if you have an agreement with a Trade Union, a Trade Union represents your workforce already and you agree with that Trade Union to put in place alternative measures to these two rights. So from a practical perspective, um, this, these rights being introduced in 2027, um, so now is the time for you to actually review your workforce, identify how big of a problem is this going to be when these rights kick in. And then look at your systems. Do they accurately track the hours that these, these workers are actually working and the regularity with which they are working their hours. Um, uh, you need your systems to be able to flat when the obligation to offer guaranteed hours contracts applies. You are also going to need to have your IT systems, uh, changed so that they can actually, um, deal with the obligations in relation to shifts. So are your processes going to give sufficient advance notice to be reasonable about when shifts are happening and you want to configure your systems to pay for, uh, cancelled or, uh, shifts that are moved at the last minute.
Moving on to Trade Unions, um, this is one of the most significant parts of the Employment Rights Act. Um, it introduces very substantial reforms to strengthen workers collective rights. Now I’ve put out here on this slide the four key ones; there’s a whole bunch of other ones that the Employment Rights Act introduces but these are the four big headline ones. The first is that when you have a new joiner, you are going to be obliged to give them notice of their right to join a union and it’s not just when somebody joins you, as an employer you’re going to have to repeatedly remind your workforce at regular intervals that they have the option to join the Trade Union. Secondly, and very, very significantly, Trade Unions are going to have for the first time, a right to access your workplaces, um, to go in and recruit, uh, employees to become Trade Union members and if you, if they can organise them sufficiently and they can get enough recruits then they can help, they can use those, those new members to actually trigger, um, a claim to be recognised. Now when a Trade Union is recognised by an employer, that’s where the Trade Union has the right to require the employer to negotiate with the Trade Union when they’re talking about, uh, workplace issues. Statutory recognition as I say, is that process that a Trade Union has to go through when they want to, uh, they want to, uh, require an employer to deal with them on workplace matters and it’s currently a very considerable framework, um, that the Trade Union has to follow. But actually what’s happening under the Employment Rights Act is that it’s going to be much easier for a Trade Union to get statutory recognition. When you have a recognised Trade Union, one of the tools in their armoury is to take industrial action. So for example, to call out the workers on strike. And again, what the Employment Rights Act does is it actually makes it far easier for workers, um, for Trade Unions to actually, um, tick the boxes to call for lawful industrial action. So again, from an employers’ perspective, uh, in relation to things like the, uh, right to access workplaces, review your current policy on third party access to your premises. Work out how you are going to accommodate the Unions who come along and say, actually we’d like to come in and talk to your workers. And if Trade Union recognition is a concern to your business, consider implementing alternative forms of employee representation. If you have robust employee staffed forums already your employees are far less likely to say, actually we want a Trade Union to come in and represent our interests.
Now you may have noticed towards the end of the year it was very much in the news, um, the talk about changes to unfair dismissal. Basically, two things are happening. The first is that the current two year qualifying service requirement that all employees have before they can claim unfair dismissal, that’s been radically reduced. They’ll have the right to claim unfair dismissal after only six months. And secondly, at the minute unfair dismissal compensation, there’s a cap on the maximum amount that employees can claim if they do claim unfair dismissal. That is also going to be completely removed. The headline implications for employers, first of all, because the window for dismissing without unfair dismissal risk is narrowing significantly down from two years’ service to only six months. You need to look at your probationary periods. Are they robust? Are you proactive in making sure that your new joiners are actually working out? If they’re not working out, you’ll want to terminate them before they get their six months’ notice and they acquire the right to unfair dismissal. Secondly, and related to that, you are going to want to look at your recruitment processes generally. Um, you’re going to really want to make sure that they are robust, that you are doing a thorough, thorough process in the recruitment, you’re checking references properly, you’re on boarding in, in a good way to make sure that you’re reducing the risk that somebody who you have just hired, uh, may need to be dismissed because they’re up to the, up to the job. Um, in relation to the lifting of the compensation cap, getting rid of it entirely, um, you’ll want to do a risk assessment. This is most relevant I think in relation to high earners that you have. Have a look, assess how many high earners you’ve got. Assess which ones are potentially, um, more likely to claim unfair dismissal, um, and then, you know, take into account how you are going to deal with the financial implications if those people do claim unfair dismissal. Most fundamentally, you can avoid, uh, having to, uh, pay, pay out under an unfair dismissal claim if you can show that you’ve actually dismissed in a fair manner so you will want to actually review your own, uh, disciplinary and dismissal processes generally. Make sure that they’re fair. Make sure that your HR and your managers are properly trained on how to actually work them. Now the Acts throws some protections against harassment and discrimination as well and I’m going to mention two, two provisions in the Act, uh, the first one is that for the first time in many years employers are going to be liable if members of their workforce are harassed by a third party, so for example, a customer or a supplier, um, harasses a member of, of your workforce. Um, by definition it’s very hard to control what third party’s do, you know, they’re not part of your employee, uh, body, they’re not people who you can ease, more easily prescribe certain levels of conduct. So you are going to want to try and make sure that you can manage that risk. There is a defence, this all reasonable steps defence but to do that you have to take, as it says, all potential reasonable steps. So do your risk assessment. Work out where third parties are more likely to mistreat your staff. In those situations, identify the preventative steps that you should reasonably take and ensure you’ve got robust procedures in place if, if the worst case scenario happens and there is some, uh, third party harassment that goes on. And again there’s a training piece here. You’ll want to train your workforce to make sure, um, that they understand what to do to, to prevent harassment from happening, um, to actually intervene if they’re bystanders and they see somebody else, uh, mistreating your, uh, a colleague and to make sure that they know how to report, uh, when an incident happens. The second thing that the Employment Rights Act does in this sphere is that it beefs up the current duty to prevent sexual harassment that employers have. Now at the minute that duty requires employers to take reasonable steps to prevent sexual harassment and that sexual harassment not just by third parties but by, uh, fellow, uh, colleagues in the workplace. Um, that is being changed to an all reasonable steps defence, uh, an all reasonable steps requirement in the same way that we are talking about all reasonable steps just before. So again, consider what additional preventative steps you need to, uh, take into account.
A standard tool to use when changing terms and conditions is to first of all, engage with your employees and say, look will you agree to the changes that we need to introduce. They could be changes to key things like, uh, pay or hours or time off. Um, and if the employee doesn’t agree, then a step an employer can take is to say, well look actually we do reasonably need to push these through so what we’re going to do is we’re going to fire you and then immediately re-hire you back on the new terms. Now unfortunately the Employment Rights Act is going to make that really, really difficult to do, um, typically, uh, you’ll find that if an employer tries to do that it will be automatically unfair dismissal. And again, there are obviously the liabilities that come with that. The only situation in which an employer will be able to actually affect, um, a fire and re-hire in the way that they can do now, um, when they are trying to change key terms and conditions, is, um, if they can show that the business is facing a really existential threat, um, and, um, it’s going to effectively go bust and there really is no alternative to try to implement these changes. Now that’s obviously a very, uh, very, um, unlikely event, um, and so typically employers are going to find that they can’t actually rely on their current fire and re-hire practices. It’s also going to, uh, be, um, uh, very hard to do fire and re-hire when, actually when it’s fire and re-hire but it’s fire and not re-hire where you actually fire an employee and then just bring in somebody else on the new terms that’s going to be cheaper. So again, what are you going to do about this? Well this right is being introduced at the minute, we’re expecting it in in October 2026. If you have any planned contractual variations that you think you want to make, um, now, you already envisage making them, now would be a good time to do it before this new regime comes in and makes it very, very hard to, uh, to actually affect.
Uh, moving on to collective redundancy consultations, so at the minute where you make large scale redundancies at a particular site, a particular establishment, um, you have an obligation to collectively consult. Now that obligation to collectively consult, um, if you breach that obligation, um, the liability is, uh, effectively anything up to 90 days’ pay, it’s what’s called a protective award that can be claimed by those who, who are at risk of redundancy and who aren’t consulted, uh, correctly. The Employment Rights Act extends that to 180 days. So we’re talking about, um, a right to claim half of your wages bill in relation to each affected employee if you don’t properly collectively consult. So it makes it even more important to make sure that you’re actually collectively consulting, um, and complying with the obligations that that requires. At the minute the collective consultation obligation is triggered where you’re making large scale redundancies at one site but the Employment Rights Act is going to also trigger this obligation to collectively consult where you are a multi-site employer and you may have a small number of redundancies happening at lots of different, different workplaces. So you may have 2 in London, 3 in Glasgow and then 5 in Exeter. So each of those is below the threshold but ordinarily triggers collective consultation but if they all add up to a new threshold requirement then again, the collective consultation obligation is going to kick in.
And finally, I’m just going to mention tips. Um, the Employment Rights Act introduces an obligation on employers to consult with their Trade Union if they have one or with their workforce before they actually, uh, publish a written tipping policy for the first time. And there is going to be an obligation to, um, review that every three years and consult every time you do a review.
Now I have covered an awful lot of ground and there is an awful lot more that I haven’t actually talked about in the Employment Rights Act, but here’s a timetable of when the measures I’ve been talking about are currently expected to come in and I’ve also included a number of the measures I haven’t had time to talk to you about. The key takeaway is that the Act really does introduce really, really substantial changes to the way that you manage your workforce and the way you manage your business. So now is the time to really get your head round these issues. Um, I’ve just done a very high level review. On our website we have an Employment Rights Act hub with an awful lot more detail and you’re obviously more than welcome to contact me or a member of the employment team if there’s anything you’d like to discuss. And now I am going to pass over to Cassie.
Cassandra Hill
Partner
Thanks very much Adam. Good afternoon everyone. Um, so in the intellectual property sphere developments are continuing at a pace for new approaches to protecting designs, the impact of AI and through to how you can protect your brand. So let’s start with the most talked about topic, AI. Uh, the government is currently grappling with how copyright law should apply to AI training, uh, you know, this is a question that directly affects every business. Um, in December last year the government published a progress report following their consultation on copyright and GenAI and the consultation received over 11,500 responses which is very hire, uh, for a government consultation and the results were very interesting. So 88% of the respondents to their online surveys who were mostly from the creative industries favoured requiring licenses to be in place before AI companies could use, uh, copyrighted material for training and only 3%, which was mostly from tech companies supported an opt out exception which is similar to the EUs current approach. The final report is due by the 18 March this year and will set out the government’s proposals on licensing frameworks, disclosure requirements for AI developers and enforcement mechanisms. So why does this matter for retail? Well your product images, marketing content, website copy and promotional videos are all potentially being used to train AI models so it is worth thinking about auditing your content to understand what proprietary material could be valuable training data. Monitoring your current AI tool usage because AI generated content may still infringe others copyright and increasingly we’re seeing that AI platforms are pushing liability on to users in their terms and conditions. Watch out for licensing opportunities. So we’ve seen, um, so major deals in the last few months open AI with Disney and Universal music with NVIDIA where these companies are pro-actively licensing content rather than facing legal uncertainty. I mean the rules are not going to be clear until March but I think it’s worth preparing now to both protect and potentially monetise your content and you can keep up-to-date with what’s going on, um, Mishcon has a GenAI case and policy tracker that you can sign up to. Key thing, um, with AI, it’s worth mentioning the recent UK case of Getty and Stability AI. So Getty challenged Stability AI over its stable diffusion model claiming that the company has scraped many of Getty’s images without consent. The High Court has now largely rejected Getty’s claims finding that there was no copyright infringement but it did find limited trademark infringement relating to some of Getty’s watermarks. Importantly, crucial questions about GenAI and copyright, particularly who’s liable for outputs, the user or the AI developer and whether the training process which occurred outside the UK was infringing, remain unanswered because Getty abandoned these claims during trial which was particularly annoying for us geeky lawyers. Um, Getty’s remaining copyright claim failed because the Court found that the model weights, uh, which are the numerical parameters in their model themselves didn’t store Getty’s images. Getty did, um, as I have stated, have limited success on the trademarks where their watermarks appeared in outputs but these were really historic and extremely limited. So I think it’s just a reminder that it’s an opportunity, um, to review your website terms and conditions regarding how content can be used by AI developers and also revisit contracts with third parties who offer or use AI, um, in their businesses for you to ensure clarity on ownership and liability.
In another area of flux, uh, the UK design framework is getting its biggest shake up in decades. The UKIPOs consultation to modernise the design law framework for the digital age closed at the end of last year and we’re currently awaiting the results but I think three areas in the consultation most relevant for retail are; one, more rigorous registration parameters to tackle bad faith registrations. So we’ve seen examples of people selling ownership slots on UK registered designs to overseas academics to help them gain their academic CVs and people are registering designs they don’t own to abuse take down systems on online platforms. For example, the remote that you can see on the left on the slide was a design registration which was completely bogus but you can see how it’s near identical to the genuine Amazon fire stick on the right. So the UKIPO is proposing new powers to investigate suspicious applications and, uh, considering introducing opposition procedures similar to the existing trademark framework. Two, protection for digital assets. So looking at including graphical user interfaces and animated designs. However, the government is considering removing protection for AI generated designs with no human author. So this is, looks like it’s going along the same path as, as patents and trademarks, um, but this is going to potentially impact businesses particularly like Shein, that reportedly creates thousands of designs daily using AI. Three, streamlining the Brexit patchwork of design protection, um, potentially consolidating multiple rights into a simpler system. So for example, if you disclose a design first in the UK it might not be protected in the EU and vice versa so the government is considering different solutions such as recognising simultaneous disclosure or introducing a grace period for designs first disclosed abroad or recognising EU disclosures that reach UK trade circles. So I think whilst awaiting this outcome, um, it’s worth reviewing design portfolios, assessing human authorship in AI assisted designs and also considering filing applications now under the current system because it’s likely to be much quicker. Um, if you regularly disclose designs at international trade shows or online, then the potential new rules around disclosure, um, will be particularly relevant. So a change the UKIPO has already decided on is increasing its official fees by an average of 25% from the 01 April this year, uh, subject to parliamentary approval but it’s likely to go through. Um, so this is the first increase in a long time in they say they’ve done so due to inflation. Uh, but despite the rise, the UK fees do remain competitive compared to other national offices. You can avoid some of the new fees by acting before the 01 April. For example, trademarks and designs can be renewed up to six months early and patents up to three months early so if you’ve got any trademarks or designs which are due for renewal by the end of September this year and patents in April or May this year, then they can still be renewed at current rates if you do it before the 01 April. Do note that this doesn’t apply to late renewal fees, so if you’re paying for a renewal that’s late on or after the 01 April, any late renewal fee will be the new fee. If you’re looking at filing a trademark application before the 01 April, but pay the fee afterwards using the grace period, then you still are entitled to pay the old fee if you pay it within the deadline given. I would say watch out with all of this. If you pay an incorrect old fee after the 01 April, your filing won’t be recognised until the balance is paid which could potentially cause you to miss some critical deadlines. So it’s, it’s worth reviewing your IP portfolio now to identify any opportunities to lock in the current pricing.
So from general to specific changes. There are three key changes to trademark law that retailers should be aware of. Firstly, the UKIPO is cracking down on overly broad trademark applications following the Supreme Court decision in Sky and SkyKick. So the UKIPOs recent practice amendment notice indicated that examiners are now going to routinely object on bad faith grounds to specifications that are manifestly and self-evidently broad so you should only file for goods and services you genuinely intend to use, avoid the broad just in case specifications and be cautious with general terms unless they truly reflect your business. It’s worth having a commercial rational for the scope of protection sought and document this at the time. There’s been a few recent cases that showed the UKIPO is taking this seriously. So ENERJO filed a, a 120 page specification across 13 classes and this was refused for bad faith and WISE filed a broad computer software specification and that was restricted to financial services software only. Uh, second change is that from the beginning of this year, EU trademarks which were cloned into UK rights at Brexit are now vulnerable to cancellation if they haven’t been used in the UK for five continuous years. So this is just a question of looking at your portfolio for any such marks and ensuring that you’ve got evidence of UK use since the 01 January 2021. If you can’t show that use then consider whether you want to maintain these registrations or let them lapse. Um, thirdly, the UKIPO is discontinuing series trademark applications. So currently you’re allowed up to six variants per application which differ in only non distinctive matter, so it may be different colours. Um, this is only going to apply to new applications and once implemented retailers will have to file separate applications for each variant.
Staying with trademarks, we’ve all seen someone walking their dog or standing at the side of the pitch wearing one of these massive coats. So imagine you’ve created such a successful product that your brand name becomes the word everyone uses for that entire product category. This is called genericide. So think Hoover, Escalator or Thermos. They all started as protected brand names. But once your mark becomes generic you lose your exclusive rights to it. So the recent Dryrobe case offers some invaluable lessons in that regard. So Dryrobe launched the first changing robe of its kind in the UK in 2011 and by 2022 a competitor started selling D-Robe products arguing that Dryrobe had become generic, i.e. the category term for all changing robes. Dryrobe won the case because they’d acquired distinctiveness through high sales, marketing spent and partnerships with people like Team GB and Redbull but most importantly, they ran a relentless anti-genericism campaign. So what did this involve? Social media campaigns educating consumers on proper use of their mark, website guidance, proactive contact with media users to correct their generic use and they also detailed, uh, they had detailed documentation of every incidence and response and took legal action where appropriate. The Court found that Dryrobe did still function as a trademark. Although there was generic use by some it didn’t necessarily mean generic overall even if part of the public uses it generically, you can still maintain trademark protection if a significant proportion still recognised that mark as a brand identifier. So what does it mean for retail brands? If you have a descriptive brand then genericide can be a real danger so documentation and pro-active management are critical. The Court praised Dryrobe’s relentless campaign as decisive in maintaining distinctiveness of its trademark so I think the key takeaways from this are monitor relentlessly using social media monitoring tools, educate actively, use the registered trademark symbol consistently and create guidance. Uh, enforce consistently, contact users, you can do it politely but firmly and suggest alternative category terms. So Dryrobe, for example, um, promoted changing robe as the generic term. Uh, build distinctive character through marketing and partnerships and importantly, act early and continuously. Don’t wait until competitors challenge your mark.
So moving from genericism to precision in trademarks. The recent Court of Appeal decision in Adidas and Thom Browne is the first in the UK to consider the validity of position marks. So that’s marks that combine a visual element with its specific position on products. The Court declared that all six disputed Adidas position marks were invalid due to lack of clarity and precision. So why did Adidas lose? Well, their written descriptions claim protection for three stripes along one third or more of a garment, meaning numerous possible variations rather than a singular sign. It could be a third along the sleeve, a half along the sleeve, a whole along the sleeve of the stripe, you just wouldn’t know which, uh, they were seeking to rely on. So the Court held that this failed the fundamental requirement that a trademark must be a sign singular, not multiple variations, um, and be sufficiently clear and precise. So what should retailers take away from this? I think just ensure that your written descriptions and visual representations are align perfectly. Don’t attempt to protect numerous iterations through one registration because it might result in you not having a valid registration to rely on. And remember the purpose is protection of specific marks, not monopolising general concepts.
So moving from trademarks to supply chains. Um, importers and distributors can be liable for IP infringement even if they didn’t create the infringing design and trusted their supplier. Uh, so in this case, uh, artist Shantell Martin successfully sued an Argentinian Winery and it’s UK distributor, GM Drinks for copying her artistic style on wine labels. She actually did a colour comparison which you can see on the slide that shows some of the individual elements of her design that were copied and the UK distributor was held liable despite having no involvement in creating the label. The crucial point for finding that the importer and distributor were liable was whether they knew they were importing, possessing or dealing with infringing copies and you can be fixed with knowledge simply by receiving a complaint letter and from that point forward you can held liable. So how can you avoid this? Well implement robust IP clearance procedures. Don’t assume that your supplier has handled IP matters. Ensure that you’re securing comprehensive warranties and indemnities from suppliers and respond immediately to IP complaints. You might stop sales, investigate and seek legal advice promptly because once you’re put on notice, continuing to deal with potentially infringing products can significantly increase your damages exposure. And also in these types of cases, consider early settlement seriously. This, uh, wine case resulted in damages of less than £10,000 which was not worth going to trial over which really shows how sometimes it, it makes early resolution preferable.
So the IP landscape is becoming increasingly complex but I think with proper planning and some pro-active management, there are opportunities to, um, turn, uh, these issues into competitive and financial advantages and I’ve just put a few key takeaways there on the slides of, of things to be thinking about. I’ll now pass over to Alexa who is going to cover, uh, consumer and advertising law.
Alexa Lamont
Managing Associate
Knowledge Lawyer
Thanks Cassie. Um, yeah so there’s quite a lot happening so I’m just going to do a general overview and, um, tell you about some things that might be helpful to prepare for. Um, so firstly the Digital Markets, Competition and Consumers Act, so this, obviously a lot of the parts of this Act have already come into force, um, particularly around unfair practices but there is a new subscriptions regime, um, which is due to come in, um, under this Act, um, which might involve looking at the contracts you have around subscriptions, um, and these new rules were initially going to come into play in Spring this year but they’ve now announced that it’s going to be pushed back to Autumn and we’re actually awaiting for some more guidance around what, um, the new, how to comply with the rules. Um, in addition, we are expecting this year the outcome of some of the CMAs first investigations using its new enforcement powers under the DMCCA, um, and we might even get some fresh enforcement action, um, from the CMA, uh, based on its priorities, its enforcement priorities and it published these in an approach document in April last year. Some of its priorities include aggressive sale practices that prey on consumers in vulnerable positions. Also providing information to consumers that’s objectively false, um, they’re also concentrating on banned practices including the new banned practice relating to fake reviews. Um, also fees that are hidden until late in the purchase process and they actually, at the end of last year, published a new price transparency guidance, um to help companies comply with those rules. And they are also interested in enforcing contact terms that are clearly imbalanced and unfair including those that impose unfair exit charges on consumers.
Um, also, um, there are some reforms, um, being made to the Price Marking Order 2004. Um, these have been delayed from October until April this year in 2026. And some of the changes that are being made are around clearer shelf pricing as well as unit pricing, loyalty scheme and volume promotions. A big sort of theme that seems to be coming out Europe and also the UK is trying to tackle dark patterns and these are sort manipulative designs on website which entice you to purchase things that you might not otherwise have purchased. So things like countdown timers and pop-up windows and, um, there is a Court case, um, brought by the CMA against Emma Group in relation to the use of dark patterns on its website that’s taking place in June, over the Summer this year. Um, the CMA is going to Court because the case was brought before the new enforcement powers came in under the DMCCA. The CMA is seeking an enforcement order which would require Emma to change its online selling practices.
And then finally, also in the UK, um, the CMA has just – hot off the press – launched consultation on updating its guidance to unfair consumer contract terms. It’s called CMA 37, um, it’s quite well known document on how to draft your consumer terms, um, and they want to basically make this guidance easier to understand. I’ll just go into a bit more detail about this. So, um, at the moment its produced draft revised guidance and also a draft technical note and the key thing just to get across is that there hasn’t been any change to the law necessarily on consumer terms since 2015, so your obligations as a business will remain the same but the reasons for updating it are to make, um, it clearer for businesses to understand how to comply and also just to reflect the new CMA consumer enforcement powers under the DMCCA, uh, which weren’t taken into account the original time it was written. And here are some main changes to the guidance. So it’s just streamlining and restructuring the draft guidance, simplifying technical language, reorganising the content on the key requirements of the Act, fairness and transparency by articulating distinct principles and considerations, reorganising the content on potentially unfair terms, redesigning flow charts, explaining how the Act and some of its specific provisions work, updating and adding references to authoritative Court decisions, updating outdated legislative references and the content on means of enforce, um, moving content from relevant legislative background and other legislation. So they’re really just doing some housekeeping, tidying it up and making it much clearer for businesses, um, to understand it.
Moving on to consumer law in the EU, uh, there are various things happening here. Firstly, there’s the EU Digital Fairness Act and I talked previously about dark patterns and the Emma case in the UK, um, dark patterns are also a problem in the EU and the EU has suggested this Digital Fairness Act, um, partly of which is to try and tackle unfair commercial practices like dark patterns. Um, it may also have implications for influencer marketing, for addictive design and also for targeted advertising and the European Commission actually launched a public consultation and call for evidence which closed in October last year and in December the Commission published a report, um, which will inform the content of the final version of the Act. So we’re expecting the Act, the Acts being planned for the last quarter of 2026 so look out for more details about that this year.
In relation to digital market, the Digital Markets Act in the EU, um, there are, uh, various things happening on that in the EU but there’s also things happening in the UK too, um, and Apple and Google have been given strategic market status under the DMCCA, um, in relation to their market platforms and this may impact the process for reviewing and ranking third party apps in Apple and Google stores and the CMA has also designated Google as having strategic market status in relation to search and advertising services, um, so this may impact ranking principles for search listings and transparency, attribution and choice and how content is used in Google’s AI services. So sorry, that should have appeared in the UK section rather than the EU.
And then also in the EU, um, from 19 June this year, um, online retailers in the EU must provide an electronic withdrawal button on their websites for all types of distance contracts for which a right of withdrawal applies. Um, and this stems from EU legislation, um, called the Digital Financial Services Contracts Directive which aims to make withdrawing from online contracts as simple as concluding them. And then finally in the EU there are new rules, um, coming into play under the
Empowering Consumers for the Green Transition Directive, um, which means that you’ll have to provide, uh, various pre-contract information to consumers. Um, this is starting in September this year, um, and the Directive also introduces some new rules on unfair commercial practices regarding greenwashing. Um, just staying on, uh, ESG generally, there are, there is also something called the Right to Repair Directive, um, and there’s new rules coming in to play with that as well regarding, um, repairing repairability of products and that’s starting in the Summer.
Just to delve into what some of this pre-contractual information that you have to provide consumers, I’ve just provided a couple of examples here. So in order to help people chose more lasting and repairable goods buyers should be informed of any repair restrictions before making a purchase, um, and also for products where software updates are provided, consumers should be informed for how long they may benefit from these updates. And then also the new unfair practices. So, um, in relation to green washing, generic environmental claims are now going to be banned, such as eco-friendly, green or biodegradable unless the claims are substantiated by a publicly accessible certification scheme. And also new commercial practices have been added to the black list of unfair practices considered as unfair in all circumstances for consumers. Um, this includes not informing consumers when a good has a limited life span or contains a feature introduced to limit its durability. Not warning consumers if the good is designed not to be compatible with consumables, spare parts or accessories provided by third party producers and making an environmental claim about the entire product when it only concerns a part of a product.
Moving on to advertising, um, in the UK there are new rules on TV and online advertising of less healthy food and drink products which started on the 05 January this year. Um, and it bans TV ads of these products between 5.30am and 9.00pm, um, and there’s also a ban on paid for online advertising, um, with a few limited exceptions. There’s also the Tobacco and Vapes Bill which is due to become law in 2026. This will ban advertising and sponsorship for herbal smoking products, cigarette papers, vaping, consumer nicotine products and tobacco products, um, and that’s currently progressing through Parliament.
And then under the Online Safety Act, um, Inscope service providers must put in place proportionate systems and processes to prevent fraudulent advertising and take it down when they’re aware and we’re expected Ofcom to launch a consultation, um, in the summer that might touch on this element of fraudulent advertising, um, with some guidance in 2027.
And then also in the UK, um, in November, uh, DCMS published a new code for prize draw operators. Um, so this is for situations where the outcome is determined by chance and where there’s both a paid and a free entry route to choose from. Um, the code doesn’t cover, uh, competitions, um, solely, which are solely skill based. Um, the code is voluntary and it doesn’t replace existing consumer or advertising law, um, but the Government has indicated that it might legislate in this area if the code is not adhered to.
And then in the EU, um, I already touched on the new greenwashing rules which, um, will start in September, um, including a ban on those generic terms such as environmentally friendly, eco-friendly, green, biodegradable and carbon friendly. Um, it, there’s also a ban on claims based on greenhouse gas offsetting, um, and the overly wide environmental claim as I mentioned before, when you’re talking about a part of a product but you’ve made a claim about the whole product. Um, and also new rules and misleading sustainability labels. We’re still waiting to see what’s going to happen with the Green Claims Directive, um, there was an indication last year, um, that, that might be shelved but at the moment it still seems to be in play but we’ll, we’ll maybe find out this year more information about what might happen with that. And also, um, in the UK the, the Advertising Standards Authority in the CMA may turn their attention more to greenwashing given that the CMA now has its direct enforcement powers under the DMCCA, um, and also the ASA, um, ruled against three fashion retailers, um, containing, um, ads about sustainability, um, we’ve published an article about that on our website if you want to find out more information. And also just to mention that there, um, is a new failure to prevent fraud offence under the Economic Crime and Corporate Transparency Act. Um, so technically companies could now be held criminally liable for greenwashing under this new offence if it’s fraudulent. I’ve already mentioned the Digital Fairness Act, um, obviously that comes into play with advertising as well as consumer.
Okay, we’ve got ten minutes’ left so I’m just going to talk about, um, some other key developments that are happening, um, across various topics including real estate, immigration, corporate and commercial and tech and health and safety and product safety.
So first, um, real estate. So, um, the November 2025 Budget announced a potentially significant rebalancing of the business rate system which is coming into force from April 2026. There will be a new multiplier for smaller retail, hospitality and leisure premises balanced by a higher multiplier for business premises with a rateable value of 500k or more. However, a nationwide re-evaluation of business premises will also take effect in April 2026 based on values as they stood in April 2024. Um, many businesses will see significant increases in their rateable values and therefore a sharp increase in their rates bills, um, so business rate payers should be prepared to lodge valuation appeals in Spring 2026. Also, um the English Devolution and Community Empowerment Bill includes a ban on upwards only rent review clauses in commercial leases. The ban is likely to come into force in late 2026 but will not affect existing leases entered into before the new law comes into force. Um, also a High Court decision in 2025 cast out on whether commercial landlords can charge tenants for the commission implement of an insurance premium, um, the landlord is taking the dispute to the Court of Appeal and the hearing will take place in June 2026. Depending on the outcome there could be scope for many business tenants to claim refunds going back several years, so one to watch out for there. And also, um, uh, there’s been a further delay in the government announcing plans to toughen the minimum energy efficiency standards for commercial properties. Um, despite the delay, we do expect the minimum energy grade to increase from the current grade E, at some stage.
Moving on to health and safety and product safety. Uh, there’s been a raft of, uh, new proposed legislation coming in in relation to both product safety and product liability to deal with new, um, uh, emerging technologies but also to do with online market places and making sure the laws that come into play, um, are tackle unsafe products sold through online marketplaces. In the UK, um regards to product safety, we have the new Product Regulation and Metrology Act which became law in the Summer last year. Um, this is, uh, framework legislation, um, so it, uh, will allow the government to make secondary legislation, um, in relation to products and product safety. Um, so for example, there might be new rules around products for how a product is made and marketed, um, and it’s likely that they’ll focus on unsafe products through online marketplaces but there could also be an impact on, uh, products that have AI features. So there could be new rules coming into play, um, around that as well.
Um, there’s also, um, in the EU a new revised Product Liability Directive which starts to apply from December. Um, it extends the existing product liability regime to capture emerging digital technologies including software, um, and it makes it easier for consumers to bring a claim for damages for defective products. Um, and also in the UK they are reviewing the UK product liability regime also in light of emerging digital technologies.
Um, so cyber security rules are being introduced to regulate products which connect to the internet. Um, the EU has, uh, the Cyber Resilient Act which is due to start in December 2027. Um, and in the UK the government introduced the Cyber Security and Resilience Bill to Parliament for its first reading in November, um, and this will focus on the cyber security of digital services as opposed to products. We may also see this year proposed legislation on the regulation of ransomware payments.
And then also the Crime and Policing Bill is currently going through a legislative process to become law, um, and it will make sure that the police and Courts have the necessary, um, powers to tackle assaults against retail workers and shop theft. It will create a standalone offence for assaulting a retail worker, um, in order to protect staff, um, and the, the offence will carry a maximum of six months imprisonment or a unlimited fine. The new law will also ensure that all shop theft is treated with the seriousness it deserves by removing the immunity granted to shop theft of goods valued at £200 or less.
Moving on to immigration, um, the Home Office is consulting on major changes for indefinite leave to remain. Um, changes could come into force as early as Spring 2026. Key proposals include doubling the standard timeline to indefinite leave to remain from 5 to 10 years which can be extended or reduced depending on individual circumstances. Um, the detail of any changes will depend on the outcome of a consultation which is set to end on the 12 February 2026. Um, from the 08 January, um, the minimum English language requirement for skilled worker, high potential individual and scale-up users has risen from B1 to B2 level. Um, the list of qualifying universities has been expanded for high potential individual visas so that overseas graduates from the world’s top 100 universities may be eligible for the visa. And also from the 01 January 2027 the standard duration of the graduate visa will be reduced to 18 months.
Some corporate updates, so, um, the Economic Crime and Transparency Act has introduced a number of company reform measures and the implementation of these, um, will continue during 2026. And interest has been increasing in the private intermittent securities and capital exchange system which is a framework for a new type of trading platform that will enable intermittent trading of private company shares. Also, the UK’s Prospectus Regime was replaced on the 19 January with a new Public offers and Admissions to Trading Regime. Um, and, uh, a key change is that the requirement for a prospectus for a public offer will be replaced by a general prohibition on public offers and an extensive set of exceptions to that prohibition.
Commercial and tech, um, the government is currently consulting on proposals to tackle late payments to small businesses. We are waiting on the outcome of consultation but proposals include making the statutory interest rate for late payments mandatory. Um, also requiring businesses willing to challenge an invoice to do so within 30 days and capping payment terms for 60 days. Um, so potentially some interesting changes there that might impact commercial contracts.
Also two big Court cases this year on franchising to do with, um, implied duty of good faith within their contracts so also maybe expect some franchising reform and also in the EU, uh, certain provisions of the EU AI Act are due to come, um, into force in August, particularly around high risk systems where the EU has proposed something called a Digital Omnibus Package which may simplify, um, some of the rules in the EU AI Act and may also delay, um, some of the things that are coming into force this year, um, and it may also simply rules on cyber security and also data as well. And then we have the EU Cloud and the AI Development Act, um, which is expected in 2027. This is all about just improving the EU’s infrastructure, um. to support the growth of AI and Cloud services, um, and provide sustainability targets, data centres used to operate AI.
And then finally with ESG, I’ve covered most of these already, so we have the right to a repair directive. So as I mentioned before, products will need to meet new repairability requirements from the 31 July this year. We also have the Eco Design for Sustainable Products Regulation, um, again this is framework legislation and we’re expecting secondary legislation to be introduced which will, um, introduce rules, um, for the design of specific product categories. We have textiles by 2027 and furniture by 2028. There’s also a proposal for the EU Circular Economy Act, um, that’s due to be introduced in, in the last quarter of 2026 to address e-waste and measures regarding the single market for waste, secondary raw materials and reliance on products and also just to flag that in the UK, um, we have the Product Regulation and Metrology Act and it all actually states in that Act that the UK, uh, may introduce similar, uh, rules that are available in the EU regarding the sustainability of products. So it’s sort of paving the way for some of these similar green reforms that have happened in the EU to happen in the UK and we’ve actually published a guide on our website on green reforms in retail where you can find out more information about some of these green reforms in the EU.