Legal briefing | |

Listed Company Update

October 2022

Listed Company Update


Corporate governance and reporting
2022 AGMs and Annual Reporting
  • Financial Reporting Council (FRC) Lab Guidance on Supply Chain Disclosure: In April 2022, the FRC Lab published guidance setting out some questions and resources that may be useful for companies to consider when preparing their reporting on supply chains. The FRC Lab considers that investors are likely to look for information that helps them understand: the context of the supply chain (that is, its size and scope; its nature and resilience; the extent to which sustainable procurement practices are embedded; and the impact on current and future operations, reputation, and brand); and the impact of supply chain uncertainties, risks and opportunities on long-term value creation and the actions management are taking to address them.

  • FRC Good Practice Guidance for Company Meetings: In July 2022, the FRC published new guidance containing suggestions for good practice that listed companies should consider adopting to enhance effective shareholder participation when planning and conducting annual general meetings and other general meetings. It covers key aspects such as board engagement with shareholders; communication of meeting arrangements; using proxies; and voting processes. The guidance sets out actions to help companies maximise shareholder engagement by embracing new technologies, whilst recognising that there are still many benefits of physical meetings. The guidance is divided into four sections: before the meeting; during the meeting; after the meeting; and engagement throughout the year, with each section containing one or two high-level principles, together with some suggested actions.

  • FRC Lab Report on Digital Security Risk: In August 2022, the FRC Lab published a report on digital security risk disclosures to help companies improve disclosures in their annual reports on digital security strategies, risk and governance. The report noted that the management of digital security risk is fundamental to business continuity, resilience and value creation and reporting should provide relevant information to assist investors and stakeholders in assessing a company's ability to remain viable and resilient. Various factors have contributed to an increased focus on disclosures in this area (including recent high-profile cyber and data incidents, increased geopolitical tensions and Government proposals to add digital security risk as a key issue to be addressed in the new statutory Resilience Statement, which will be introduced following the reforms proposed in the Government's response to its March 2021 consultation on strengthening the UK's audit, corporate reporting and corporate governance systems (covered further under Audit and Corporate Governance Reform below)). The FRC Lab report is supported by an example bank, which gives practical examples of good disclosure and offers potential questions for boards and audit committees to consider.

  • FRC Lab Report on Improving ESG Data Production: In August 2022, the FRC Lab published a report on improving ESG data production to help companies consider how they can collect and use ESG data more effectively to support better decision-making. In the report, the FRC Lab explored the current landscape and challenges around ESG data production and positive actions that can be taken to address these challenges, including a set of questions for boards to consider when determining how ESG data is collected and used strategically to inform decision-making. This forms part of a broader project being undertaken by the FRC Lab about the production, distribution and consumption of ESG data, which was launched after the FRC published its Statement of Intent on ESG Challenges in July 2021, in which it had noted the relative lack of maturity of ESG information and the frameworks and structures that surround it in comparison with those for financial information.

  • FRC Lab Report on First Year of Mandatory Digital Reporting: In September 2022, the FRC Lab published a report on the first year of mandatory structured digital reporting by UK listed companies under DTR 4.1.14, which requires issuers to produce their annual financial reports in the electronic report format specified in the TD ESEF regulation, the UK onshored version of the European Single Electronic Format. The FRC Lab analysed a sample of UK filings, using public data and data made available by the FCA and also gathered feedback from companies, tagging software and service providers, design agencies, assurance providers and other stakeholders. The review found that although progress has been made since its 2021 review, data quality and usability remain below the level expected for companies in a leading capital market. The report sets out some areas of focus for companies and suggested actions to improve companies’ processes, the usability and design of the reports and XBRL tagging.
Audit and Corporate Governance Reform
  • Government Response – Restoring Trust in Audit and Corporate Governance: In May 2022, the Government published its response to the March 2021 consultation on strengthening the UK's audit, corporate reporting and corporate governance systems. The response set out the Government's proposals, including the creation of a more effective and better-constituted regulator to replace the FRC: the Audit Reporting and Governance Authority ("ARGA"); the introduction of more onerous reporting requirements; and additional directors' duties. For further information, see our briefing note.

  • FRC Position Paper on Audit and Corporate Governance Reform: Following the publication of the Government's response paper on restoring trust in audit and corporate, in July 2022, the FRC published a Position Paper setting out how it will support the Government's proposed audit and corporate governance reform as it transitions into ARGA. The Position Paper provided a high-level summary of certain proposed changes to the UK Corporate Governance Code (the "Code"), including in relation to: (i) internal controls; (ii) sustainability and ESG reporting; (iii) audit tendering and the need to expand market diversity; and (iv) malus and clawback arrangements. It is intended that the proposed changes to the Code will be consulted on from Q1 2023, with the revised Code applying to reporting periods commencing on or after 1 January 2024. The Position Paper also noted that implementation guidance will be developed on the new reporting requirements (including resilience statements, capital maintenance disclosures and audit and assurance policies) and the FRC Lab will carry out projects to set out how companies might apply these new reporting requirements to provide useful and meaningful information to users.
UK Listing Regime Reform
  • In May 2022, the FCA published a discussion paper setting out its response to feedback received regarding the structure of the UK listing regime. The feedback was in response to the FCA's Primary Markets Effectiveness Review. A number of proposals have been put forward, including for companies to list under a single set of eligibility criteria. Under the single segment regime, companies would simply be described as having a "UK Listing". At the point of listing, companies would also decide whether to opt into a second set of "supplementary" (non-mandatory) continuing obligations, which would be similar in scope to the existing rules for premium listed companies. For further information, see our briefing note.
Secondary Capital Raising Review
  • In July 2022, HM Treasury published the outcome of the UK Secondary Capital Raising Review. The Review followed on from the 2021 Lord Hill review recommendations and subsequent call for evidence, and looked at ways in which to improve the secondary fundraisings process for UK listed companies so that it is cheaper, quicker and more efficient. . Of particular note is the proposal that the Pre-Emption Group should restate its Statement of Principles to support resolutions regarding the disapplication of pre-emption rights of up to 20% in total, on a 10% + 10% basis (i.e. 10% in respect of a general authority and 10% reserved for acquisitions and specified capital investments), up from the current 5% + 5% approach. Any use of the 20% authority would be subject to conditions. The conclusions of this "once-in-a-generation opportunity for meaningful reform" – a series of 21 recommendations – have received widespread support from a broad range of market participants, including institutional investors, trading venues, settlement agents and advisers. The Government also announced that it had accepted all the recommendations of the Review. For further information, see our briefing note.
Market Abuse Regulation
  • In August 2022, the Financial Conduct Authority (FCA) issued a Final Notice fining Sir Christopher Gent, former Chair of ConvaTec Group Plc (ConvaTec), £80,000 for unlawful disclosure of inside information to two major shareholders before this information had been properly announced to the market. The disclosures concerned an expected announcement by ConvaTec relating to a revision of its financial guidance and the CEO’s plans for retirement. The FCA considered that Sir Christopher acted negligently in disclosing the information. For further information, see our briefing note.

  • In September 2022, ESMA updated its Questions and Answers on the EU Market Abuse Regulation to include two new Q&As, which provide clarification on: (i) financial guidance and disclosure of inside information; and (ii) market analysts' expectations and the identification of inside information.
Economic Crime (Transparency and Enforcement) Act 2022 and the Register of Overseas Entities
  • The Economic Crime (Transparency and Enforcement) Act 2022, which received Royal Assent on 15 March 2022, provided for the establishment of a register of overseas entities at Companies House. This register was launched on 1 August 2022. Overseas entities that own land or property in the UK are required to declare their beneficial owners and/or managing officers before 31 January 2023. In addition, all overseas entities that want to acquire UK land will need to register and obtain an overseas entity ID number before completing and registering their acquisition. If overseas entities do not comply with the registration requirements, they can face criminal and financial penalties as well as restrictions on buying, selling, transferring, leasing or charging property in the UK. Companies House guidance has been published in relation to the register and the Department for Business, Energy & Industrial Strategy ("BEIS") has also issued technical guidance for understanding the register and the requirements it places on overseas entities that own land within the UK. For further information, see our briefing note.
Economic Crime and Corporate Transparency Bill 2022
  • The Economic Crime and Corporate Transparency Bill 2022 was published in September 2022. The Bill is the second part of a legislative package designed to prevent the abuse of UK corporate structures and to tackle economic crime. It follows on from the Economic Crime (Transparency and Enforcement) Act 2022. Key elements of the Bill include: (i) broadening the powers of the Registrar of Companies so that the Registrar becomes a more active gatekeeper over company creation and custodian of more reliable data concerning companies and other UK registered entities; (ii) introducing identity verification requirements for all new and existing registered company directors, People with Significant Control, and those delivering documents to the Registrar; (iii) creating powers for law enforcement to enable them to seize and recover cryptoassets, which are the principal medium used for ransomware; and (iv) creating new exemptions from the principal money laundering offences to reduce unnecessary reporting by businesses carrying out transactions on behalf of their customers.


Takeover Panel consultation on presumptions of the definition of "acting in concert": The Takeover Panel published a consultation paper in May 2022 seeking views on a number of proposed amendments to the presumptions of the definition of "acting in concert" in the Takeover Code. The proposals are aimed at ensuring the amended presumptions reflect changes in the nature of investment markets since the presumptions were first introduced, and, to some extent, are a codification of the Panel's existing practice. The deadline for responses to the consultation was 23 September 2022. The City of London Law Society ("CLLS") published the response to the consultation that was submitted by a Joint Working Party ("JWP") of the Company Law Committees of the CLLS and the Law Society of England and Wales. While the JWP accepts that the definition of acting in concert and association presumptions in the Takeover Code have become increasingly unwieldly as parties to UK public takeovers have become larger and more complex and welcomes the Panel's review of the definition, the JWP has asked the Panel to provide further guidance on how it may apply the revised rules in certain specified scenarios. In particular, the JWP expresses some concerns about the proposed change in approach to funds / consortia of funds.

The Panel expects to publish a response statement with final amendments to the Code in late 2022, with amendments taking effect around two months after publication of the response statement.

National security developments
BEIS Market Guidance Notes
  • In July 2022, BEIS published a set of market guidance notes based on analysis of the notifications received under the National Security and Investment Act 2021 ("NSI Act") and feedback from stakeholders during the first six months of its operation. It provides guidance on whether certain types of events constitute acquisitions of control of an entity for the purposes of the NSI Act. Of particular note, the guidance includes clarification as to the circumstances in which internal corporate reorganisations may constitute an acquisition of control over an entity. While the focus of the guidance is on whether commonly raised scenarios require a mandatory notification, BEIS has stated that it welcomes suggestions for future guidance and will publish further market guidance notes in early 2023.
Updated BEIS Guidance on Notifiable Acquisitions
  • In July 2022, BEIS published updated guidance on the 17 types of notifiable acquisitions under the NSI Act. The guidance has been amended to clarify when an acquisition in the downstream oil sector will be subject to the mandatory notification regime under the NSI Act.
BEIS Guidance on New Build Downstream Gas and Electricity Assets
  • In July 2022, BEIS also published guidance to assist developers of new build downstream gas and electricity infrastructure to understand the scope of the NSI Act.
People, diversity and inclusion
30% Club UK Investor Group Guidance Toolkit
  • In May 2022, the 30% Club UK Investor Group published a guidance toolkit for companies reporting on diversity. The document is intended to be used as a high-level reporting framework and is targeted at FTSE 350 companies. Its aims are to: (i) establish a shared understanding of what constitutes useful reporting on diversity, so investors can more confidently use that information in their decision-making processes and engagements; and (ii) to help companies better understand what investors value most in disclosure on diversity. The Group considers that reports should be authentic and strategic; prioritise quality over quantity; and be "action-led", emphasising what is actually being done by the company to encourage and improve diversity, and how it is performing against its objectives or targets. The guidance also includes examples illustrating useful and innovative approaches adopted by companies in this regard.
Changes to the Listing Rules and Disclosure Guidance and Transparency Rules on Diversity and Inclusion
  • Following its consultation in July 2021, the FCA published changes to the Listing Rules and the Disclosure Guidance and Transparency Rules on diversity and inclusion on boards and executive committees, together with a policy statement. The changes include the introduction of the following specific board diversity targets, with premium and standard listed issuers in scope required to include a statement in their annual financial report as to whether they have met these targets:
    • at least 40% of the board are women (including individuals self-identifying as women);
    • at least one senior board member (chair, CEO, SID or CFO) is a woman; and
    • at least one board member is from a non-white ethnic minority background.

In addition to the narrative disclosures, issuers will also have to publish numerical data in a standardised table format on: (i) the sex or gender identity; and (ii) ethnic diversity of their board, senior board positions and executive management.  The new rules are now in force and will apply in relation to financial accounting periods beginning on or after 1 April 2022, which means that the new disclosures will start to appear in annual financial reports published from around Q2 2023 onwards. However, the FCA is encouraging voluntary compliance for issuers for financial periods beginning on or after 1 January 2022.


Ethnicity pay gap reporting: In 2018/2019, the Government consulted on introducing a mandatory requirement for large companies to report publicly on the ethnicity pay gap within their organisation. However, in March 2022, in its response to a report by the Commission on Race and Ethnic Disparities, the Government said it would not be introducing mandatory ethnicity pay gap reporting at this stage, as it wants to avoid burdens on businesses as they recover from the pandemic. Instead, the Government will encourage voluntary reporting and will encourage employers to publish a diagnosis and action plan. Separately, the Government's Race Disparity Unit ran a consultation over summer 2022 on new best practice standards for Government departments and public bodies when collecting, analysing and reporting ethnicity data. Once published, the standards will apply to the public sector but will likely be influential in setting best practice for the private sector as well.

Modern Slavery: We reported previously on proposals to make amendments to the Modern Slavery Act regime. The Government has signalled its intention to introduce a bill to strengthen the protection and support for victims of human trafficking and modern slavery and increase the accountability of organisations in driving out modern slavery from their supply chains. For further information, see our briefing note.

Pensions Regulator Powers
  • Some important aspects of the Pension Schemes Act 2021 are in force. These include:
    • New grounds for the Pensions Regulator to issue a contribution notice, requiring an employer or associated or connected party to make a lump sum contribution to a defined benefit (DB) scheme, including where an act or omission would reduce the amount of 'section 75' employer debt likely to be recovered by the scheme from the employer in the event of insolvency.
    • New criminal offences and civil penalties up to £1 million, including for acts or omissions by anyone (not just connected parties) which put DB scheme members' benefits at risk, without a reasonable excuse.

For more detail, see our briefing note Pension Schemes Act 2021: what happens next?.

Pensions Dashboards
  • Draft regulations and published standards have set out the expected requirements for pension schemes and providers in relation to pensions dashboards. The Government intends pensions dashboards to bring about a fundamental change in the way individuals access information about their pensions, allowing people to see all of their future pension entitlements in one online place. The public will not be able to access dashboards until at least 2024, but large and medium-sized schemes will need to connect to the online system by dates between August 2023 and October 2025 (depending upon their size and type). Before they are required to connect to the dashboards, trustees will need to ensure the scheme's data and infrastructure are in good shape and ready for connection. The Pensions Regulator has urged trustees and scheme managers to start getting ready now. For more detail and recommended action points, please see our article 10 actions for getting to grips with pensions dashboards.
Climate-related Reporting
  • The government has laid regulations adding to the TCFD climate-related governance and disclosure requirements for pension schemes. Trustees of schemes subject to these requirements since 1 October 2021 or from 1 October 2022 will need to calculate and disclose a portfolio alignment metric setting out the extent to which their investments are aligned with the Paris Agreement goal of limiting the global average temperature increase to 1.5 degrees Celsius above pre-industrial levels. This comes into force from 1 October 2022 and applies alongside the requirements for such schemes to calculate and disclose a minimum of one absolute emissions metric, one emissions intensity metric and one additional climate change metric.


Defined benefit pension scheme funding and investment: The Government is consulting in relation to forthcoming funding and investment requirements for defined benefit (DB) pension schemes. Draft regulations set out new principles that would govern how DB schemes will have to be funded, alongside an appropriate investment strategy based on an agreed long-term objective for providing benefits (for example, buy-out, consolidation or run-off). Schemes will be required to have a 'funding and investment strategy' agreed with the employer and to set out details of it and information on its implementation in a 'statement of strategy'. This must be formulated with a view to the scheme reaching a target of low dependency on the employer and a low dependency investment allocation by the time the scheme reaches 'significant maturity'. Funding deficits may be required to be recovered "as soon as the employer can reasonably afford". For more detail, please see What's Happening in Pensions, September 2022.

A Pensions Regulator code of practice will set out further detail as to how this regime will work and be supervised. The requirements are expected to take effect at the earliest in relation to valuations with effective dates from October 2023.

Climate change and environment
FRC Revised Guidance on the Strategic Report
  • In June 2022, the FRC published an updated edition of its guidance on the strategic report. The guidance has been updated to reflect the new requirements under the Companies Act 2006 for disclosure of climate-related financial information in line with the recommendations of the Taskforce on Climate-related Financial Disclosures ("TCFD"). Entities caught by the new requirement include public interest entities (including main market companies), large AIM and unlisted companies, large private companies and LLPs. The guidance also included updates to reflect changes to legislation since the guidance was last issued in 2018. As was the case previously, the guidance is for directors (or members in the case of an LLP) and is intended to serve as best practice for all entities preparing strategic reports. For a reminder of the new requirement to make climate-related financial disclosures and the associated BEIS guidance, please see our briefing note on mandatory TCFD reporting for UK companies and our guidance on climate-related disclosures for large companies and LLPs.
FCA and FRC Findings on Climate-related Disclosures
  • In July 2022, the FCA published its report on the findings of its review of the first climate-related disclosures made under the Listing Rules, which are aligned to the recommendations of TCFD. The FCA noted the overall improvement in the completeness and consistency of disclosures, whilst reiterating its expectations of listed company disclosures, including in relation to the guidance supporting the Listing Rules and the TCFD's guidance on Metrics, Targets and Transition Plans. In its report, the FCA encouraged companies to become more familiar with the TCFD Recommendations and to refer to the examples of better practice included in the FRC’s Thematic Review of TCFD Disclosures and Climate in the Financial Statements, which was published on the same day. In its review, the FRC identified five key areas for improvement: (i) more granular and specific information about the effect of climate change on different business sectors and geographies; (ii) more balanced discussion of climate-related risks and opportunities; (iii) greater linkage with other narrative disclosures; (iv) explanations as to how companies have applied materiality to their TCFD disclosures; and (v) greater connectivity between companies' TCFD disclosures and their financial statements. For further information, see our briefing note on scrutiny of mandatory TCFD disclosures.
Plastic Packaging Tax
  • In pursuit of its commitment to prevent all avoidable plastic waste by the end of 2042, the Government has recently begun to impose a tax on the manufacture and import of significant volumes of plastic packaging (or packaged products) which does not contain a minimum amount of recycled content. The Plastic Packaging Tax came into effect on 1 April 2022 and is payable quarterly by organisations who have manufactured or imported 10 or more tonnes of plastic packaging within the last 12 months (i.e., for this first year, since 1 April 2022) or where the organisation expects to do so in the next 30 days. Captured organisations must register with HMRC online. See our briefing note for further details.


Sustainable finance: The UK plans to introduce a new Sustainability Disclosure regime, broadly equivalent to the EU's Sustainable Finance Disclosure Regulation. Proposals have been delayed but are expected to require disclosures in line with international standards (most likely the still-draft standards of the ISSB). See our briefings for further details on the likely shape of the SDR and the ISSB standards. A UK-specific Taxonomy remains under development but no draft has been released yet.

Supply chain due diligence: The EU is progressing a proposal to require large companies, including third country companies with significant operations inside the EU, to adequately diligence their supply chains to avoid adverse impacts on the environment and human rights. See our briefing note for details of the Corporate Sustainability Due Diligence Directive ("CS3D").

Sustainability reporting: Though slightly ahead of the CS3D in its progression through the European legislature, the Corporate Sustainability Reporting Directive ("CSRD") will be the mechanism through which companies report the impacts they identify in the CS3D. Reporting is potentially both broad and deep, covering environment, social and governance matters, according to the draft standards published by advisory body EFRAG. The scope of the two proposals is not aligned, but the CSRD will, similarly, cover non-EU entities with EU operations. See our briefing note for further information.

Commercial contracts
War in Ukraine
  • The Russian invasion of Ukraine resulted in a large number of economic sanctions and other restrictions being placed on Russian entities, individuals and operations. These measures have wide-reaching implications for anyone doing business in Russia. Our dedicated knowledge hub contains a number of briefings on UK, EU and US restrictions.

Liability for Lost Profits and Wasted Expenditure: What Can You Exclude?

  • Commercial contracts often provide that all liability for loss of profits is excluded – and sometimes wasted expenditure may be excluded as well. A recent case, CIS General v IBM, highlights the potential for confusion, as well as the substantial sums that can be at stake. In this case, it came down to whether the customer, in relation to a contract for the supply of an IT system, could recover £80 million – or a rather more modest £12.9 million. The Court of Appeal, contrary to the first instance ruling, decided that "loss of profits" did not mean the same thing as "wasted expenditure". As a result, the bulk of the customer's claim was not wholly excluded, meaning it could claim damages up to the level of the contractual cap of just over £80 million. There are some key lessons for both customers and suppliers, which can be found in our briefing.
Standard Terms: Fighting the Right Battles
  • Several recent cases highlight the importance of process for both customers and suppliers when contracting on standard terms (or a mixture of standard terms and "bespoke" terms). There are some key pitfalls for the unwary, particularly around the "battle of the forms" (i.e., exchanges of correspondence where each party is seeking to contract on its own standard terms and is trying to prevent the other side's terms from being incorporated). Our briefing examines this in more detail.
Post-termination Non-compete Clauses in B2B agreements: What's the Court of Appeal Up To?
  • The challenge for a business when drafting a restrictive covenant is that if it seeks to constrain the other party's freedom to operate too much or for too long in the interests of protecting its own business, the courts may refuse to enforce the restriction. Two recent Court of Appeal rulings highlight some of the hazards in relation to post-termination non-compete obligations in B2B agreements. Our briefing looks at what happened in these cases and what this means for businesses at both ends of these obligations.
Material Adverse Change Clauses: Play to the Whistle
  • The High Court recently considered whether the delay to the Premier League season caused by the first COVID-19 lockdown triggered a material adverse change ("MAC") clause in contracts for broadcasting rights worth over $700 million. Our briefing sets out what MAC clauses are and how courts normally approach them. In particular, we look at the difficulties parties often have in demonstrating that conditions for the trigger event for the MAC clauses are met, let alone showing that there has been a "material adverse effect". We also discuss two earlier cases, Decura v UBS (2015) and Canary Wharf v EMA (2019).
IP & technology

Protecting your Brand in the Metaverse: Top 10 Issues for Brand Owners to Consider

  • Since Facebook rebranded as Meta in October 2021, there has been a significant buzz about the metaverse. Eager to tap into demand, there has been a movement by platforms and brands to embrace the metaverse and NFT technologies. The advent of the metaverse raises a host of legal issues and will likely test boundaries and force the law to adapt to keep up with this new technology.

Our briefing considers a range of key issues including:

  • brand value in the virtual world;
  • potential problems with registration of rights and enforcement;
  • NFTs and other virtual world "items"; and
  • impact of licensing terms and platform Ts&Cs.

It also discusses a number of ongoing metaverse trademark cases including Nike's action against StockX and Hermés' action over alleged infringement of its BIRKIN handbag trademark.


Online Safety Bill: The Online Safety Bill, which creates a new legal framework for identifying and removing illegal and harmful content from the internet, was introduced into Parliament in March 2022. At the time of writing, it had not completed its passage through the House of Commons and had attracted criticism from many quarters, including from contenders for the Conservative leadership. Following the resignation of Nadine Dorries as Secretary of State for Digital, Culture, Media and Sport ("DCMS"), the new Secretary of State for DCMS, Michelle Donelan, will need to decide whether to proceed with the Bill as it stands or to seek to amend it; the duty of care provisions relating to legal but harmful content are likely to be a focus for any amendment.

Electronic Trade Documents: In March 2022, the Law Commission published its report on Electronic Trade Documents. This includes a draft Bill designed to ensure recognition of electronic versions of documents such as bills of lading or bills of exchange, which are widely used in international trade. In the Queen's Speech (May 2022), the Government committed to legislate to implement the proposals, but at the time of writing, a Bill had not yet been put before Parliament.

Digital Assets Reform: The Law Commission is also consulting on proposals to reform the law on digital assets (including crypto-tokens and crypto-assets); the closing date for responses is 22 November 2022.

Artificial Intelligence Governance: The Government is expected to publish a white paper on Artificial Intelligence ("AI") later this year. It published a policy paper and action plan in July 2022. This suggests that, instead of giving responsibility for AI governance to a central regulatory body, as the EU is doing through its AI Act, the Government plans to maintain the current, sector-specific approach to regulation of AI.

Data protection

ICO Fines Facial Recognition Database Company Clearview over £7.5 million

  • The ICO's recent fine of over £7.5 million issued against Clearview AI Inc for using images of UK citizens scraped from the internet as part of Clearview's global online database is one of the largest that the ICO has issued to date. It is, however, considerably less than the £17 million fine announced by the ICO in its provisional decision in November 2021. The ICO has also issued an enforcement notice ordering Clearview to cease collecting and using personal data of UK residents and to delete that data from its systems. Clearview claims that it is not subject to the ICO's jurisdiction; it appealed the decision in July 2022.

  • In our briefing we look at the reasons for the fine, Clearview's challenge to the ICO's jurisdiction, and consider what may lie ahead for the regulation of facial recognition technology – a high risk area where AI and biometric data meet.

ICO Finalises UK International Data Transfer Agreements

  • In March 2022, the ICO introduced new mechanisms for international transfers of personal data. These are standard contractual clauses which are designed to protect personal data when it is transferred to an entity in a jurisdiction which the UK does not recognise as providing adequate levels of data protection through its own national law. They are similar to the standard contractual clauses in place under the EU GDPR (on which UK data protection law continues to be based). Our briefing explains why the new mechanisms are being introduced, what transitional periods apply and when you can use the new mechanisms to transfer personal data.


UK Data Protection Reform: DCMS has recently tabled legislation intended to reform the UK's data protection regime, which is currently almost identical to the EU's regime, known as the GDPR. The reforms have been trumpeted as "[a] clampdown on bureaucracy, red tape and pointless paperwork" (according to the DCMS). Perhaps. The good news for those who have invested heavily in complying with UK GDPR is that, if you are already compliant, you are unlikely to have to make substantial changes in order to remain so, as the changes proposed here are incremental to the existing regime, not a seismic shift. It also looks likely that those subject to both the UK GDPR and the EU GDPR, wishing to take a harmonised approach across their business, should (broadly) be able to satisfy the requirements of both regimes by adhering to the EU GDPR standard. For further information, see our briefing note.

The draft legislation (the Data Protection and Digital Information Bill or DPDI) was expected to have its second reading on 5 September 2022, but this was postponed at the last minute in the wake of the appointment of Liz Truss as Prime Minister. As noted above in relation to the Online Safety Bill, there is now also a new Secretary of State for DCMS. At the time of writing, it was unclear what the impact will be on the timetable for Parliamentary scrutiny or whether the delay means that certain aspects of the Bill might be subject to Government amendment.



  • Sterling LIBOR, the reference rate of interest for many financial contracts, was discontinued from 31 December 2021 and, for a limited period, a synthetic version of the rate is now published for use in legacy contracts. US dollar LIBOR will be discontinued at the end of June 2023 and the FCA will assess whether US dollar LIBOR will be published on a synthetic basis when the US dollar LIBOR panel ends. The FCA has also announced that the 1- and 6-month synthetic sterling LIBOR will be discontinued at the end of March 2023. The 3-month synthetic sterling LIBOR setting will continue for a limited period beyond the end of March 2023 and the FCA is considering the appropriate date for such cessation and will provide further information in due course. Companies should continue to identify existing contracts (not just financial instruments) which reference LIBOR and engage with counterparties to amend affected provisions. Our commentary on consequences for commercial contracts which reference LIBOR (for instance in late payment clauses) is available here.


Financial Services and Markets Bill 2022-2023: On 20 July 2022, the Financial Services and Markets Bill 2022-23 was introduced to Parliament. The text of the Bill has been published, together with explanatory notes and the Bill has had its first reading in the House of Commons. The Government intends to use the Bill to make major reforms to the regulation of the UK financial services sector, with many of its measures intended to address issues arising from the UK’s departure from the EU.



Employment Tax Measures

Health and Social Care Levy scrapped

On taking office, the new Prime Minister, Liz Truss, confirmed that she would scrap the Health and Social Care Levy.  This levy was introduced in April 2022 and initially collected through a 1.25% increase in the rates of national insurance contributions (NICs) paid by employees, employers and the self-employed.  The Treasury has announced that these NIC increases will be reversed from 6 November 2022 at which point the rates will return to their 2021-22 levels (subject to some transitional arrangements for contributions collected annually).  The plan for the levy to be charged separately next year has also been cancelled and the legislation to make these changes has been presented to Parliament.  When the levy was introduced, there was a corresponding 1.25% increase in the rates at which dividend income is taxed.  This increase will be reversed but will not take effect until April 2023. To soften the impact of the NICs rises in July 2022, the point at which employees start to pay NICs was aligned with the income tax threshold. This will stay the same notwithstanding that the Health and Social Care Levy is to be scrapped. HMRC has said that it recognises the timeline for the NICs changes is tight and has written to employers and payroll software developers with practical guidance on what they should do.

Off-payroll working reforms to be repealed from April 2023

The Government has announced that the recent reforms to the off-payroll working rules (a part of the rules around "disguised employment" also known as IR35) will be reversed from 6 April 2023 for both private and public sector organisations. As a result, contractors providing services through a personal services company will once again be responsible for determining their own employment status and paying the appropriate amount of tax and NIC.  The off-payroll workings rules are a set of anti-avoidance tax rules designed to ensure that contractors working in the same way as employees but via intermediaries (such as personal service companies) are taxed like employees. The rules work by asking whether the contractor would be an employee if they engaged directly with the end client, rather than via an intermediary. If the answer is yes, then the contractor is effectively subject to income tax and NICs in a similar manner to an employee.

Originally, the responsibility for determining a contractor's employment status under the rules (i.e., whether the contractor's working relationship resembled a self-employed engagement or employment) rested with the contractor's intermediary. Compliance with the rules and payment of any associated tax and NIC was therefore the responsibility of the intermediary rather than the end client. However, in 2017 and 2021, reforms were introduced to the public and private sectors respectively which shifted the responsibility for determining a contractor's employment status to the organisation engaging with the contractor. The aim of the changes was to improve compliance with the existing rules, but the legislation received criticism, particularly from industry bodies representing contractors, who felt that end clients were often being unduly cautious in their employment status determinations.   A change to the rules will not, however, be the end of the 'IR35 story' as the rules will still exist and the Chancellor has stated that compliance will be kept under review.  It remains to be seen whether and to what extent HMRC will expect end clients to check that the rules are being complied with in their worker supply chains.  

Company Share Option Plan increase in limits

The Company Share Option Plan ("CSOP") is a form of share incentive arrangement under which qualifying companies can grant tax-advantaged options to their employees.  There is a limit on the value of CSOP options that an employee can hold at any one time and, for many years, this has stayed at £30,000.  The Chancellor has announced that this limit will be doubled to £60,000 from April 2023 which will be very welcome news to those qualifying companies and participants that find themselves held back by the existing cap. 

Business Tax Measures

On 23 September 2022, the new Chancellor Kwasi Kwarteng put forward a new growth plan with a focus on driving increased business investment and expansion through a reduced tax and compliance burden.

As anticipated, the Chancellor confirmed that the planned corporation tax increase to 25% from April 2023 will be cancelled.  Corporation tax will remain at 19% keeping the rate in the UK the lowest in the G7.  He also announced that the Annual Investment Allowance ("AIA"), which enables businesses to claim a 100% deduction for capital expenditure on qualifying plant and machinery, will be set permanently at £1 million.  This cancels the planned reset of the AIA to £200,000 which was due to take place from 1 April 2023.

Generous local tax reliefs were announced as part of a package of measures to create new "investment zones". The tax reliefs go beyond those introduced in relation to freeports in 2021 and include a zero rate of employer NICs on new employee earnings of up to £50,270, full SDLT relief on qualifying purchases and a 20% rate of structures and buildings allowance.  As is the case with freeports, the tax incentives will be time-limited – in this case, for 10 years.  It is not clear when these reliefs will take effect; sites will need to be designated as investment zones before the tax incentives are available.

Income Tax Measures

The Government announced in the mini budget that the basic rate of income tax will be cut by 1p (from 20p to 19p) from April 2023. This measure was first announced by Rishi Sunak in his 2022 Spring Statement and was intended to come into force in April 2024. The new Chancellor has brought this date forward to April 2023. The Chancellor had also announced that the additional rate (45p) of income tax would be abolished from April 2023. However, on 3 October 2022, the Chancellor confirmed that the Government would not be proceeding with the abolition of the 45p tax rate.

For further information on the mini budget, please see our dedicated Mini Budget website.

Uncertain Tax Treatment Rules – CEST Tool Output Constitutes a "Known Position"
  • The Uncertain Tax Treatment ("UTT") legislation requires large businesses (broadly those with UK turnovers exceeding £200 million or balance sheet totals exceeding £2 billion in a financial year) within scope to notify HMRC when they have taken a position contrary to HMRC's known interpretation of tax law. HMRC has recently announced that it considers outputs from the HMRC Check Employment Status for Tax ("CEST") tool to represent its "known position" for UTT purposes.

  • Determining someone's employment status is notoriously difficult, being very fact specific and often subject to interpretation, so it is not surprising that it is within the scope of the UTT legislation. However, although the HMRC CEST tool helps businesses make a decision as to the employment status of their workers for tax purposes, it is considered by many to be something of a "blunt instrument" that won't necessarily pick up on the nuances that exist within an engagement. A business is neither obliged to use the CEST tool nor to agree with its conclusion, but the fact that taking a different approach to a CEST output will give rise to an obligation to notify, might give those within UTT a reason to think twice before using it.
Office of Tax Simplification Publishes Call for Evidence on Hybrid and Distance Working
  • The Office of Tax Simplification ("OTS") has launched a review into changing trends in the way people are working, including remote and hybrid working, and working across borders. The review will consider whether the current tax and social security rules are flexible enough to cope with such trends. The OTS is asking for information and evidence from employers and employees, as well as self-employed people, on issues such as how tax and social security work for people working across international borders, how travel expenses work in a hybrid world, the treatment of pensions and share schemes and the risks of creating a permanent establishment. The call for evidence is open until 25 November 2022 and the OTS will publish a report in early 2023.
Multinational Top-up Tax
  • In October 2021, international agreement was reached on a two-pillar solution to address the tax challenges arising from the digitalisation of the economy. The two-pillar corporate tax reform plan forms part of the OECD's project tackling base erosion and profit shifting ("BEPS").

  • The main plank of Pillar Two is the Global anti-Base Erosion rules ("GloBE rules") that seek to establish a global minimum corporate tax rate of 15% for multinational enterprises ("MNEs").  The rules will apply to MNEs that meet a €750m turnover threshold test. There will be various exclusions, including for pension funds and for investment funds that are ultimate parent entities of an MNE group (and any holding vehicles used by such funds). The GloBE rules do not require low tax companies to increase their corporate tax rates to 15% (although they may lead to them doing so). Instead, the way in which a global minimum corporate tax rate will come into effect is via two new rules. The first is the income inclusion rule ("IIR"). The IIR can result in tax for a parent entity if one of its subsidiaries is subject to taxes which are considered to be too low (a bit like the UK's existing controlled foreign companies charge). The second is the undertaxed profits rule ("UTPR"). The UTPR rule might come into play if a parent entity is in a country that has not implemented the IIR. It works by imposing top up taxes on other group entities that meet certain criteria.

  • Draft legislation introducing a "multinational top-up tax" was published on 20 July 2022.  Assuming this legislation is enacted, it will implement the IIR element of Pillar Two into English law.  The Government has announced that the IIR will come into force in relation to accounting periods starting on or after 31 December 2023.  No decision has been made on the timing of the introduction of the UTPR.

  • The draft legislation is expected to be revised in places before being included in the Finance Bill 2022-23, which is expected to be introduced into parliament later this year.  In publishing the draft multinational top-up tax legislation well in advance of the intended effective date, the government has attempted to strike the difficult balance of giving businesses as much certainty as possible whilst many important aspects remain under discussion at an international level.  The early publication of the draft multinational top-up tax legislation also gives the UK the opportunity to influence the direction of Pillar Two implementation internationally. 


November 2022: We expect that:

  • Glass Lewis will publish its revised shareholder voting guidelines; and
  • the Investment Association will publish their annual letter to Remuneration Committee chairs.

6 November 2022: NIC increases will be reversed.

25 November 2022: The call for evidence made by the Office of Tax Simplification on hybrid and distance working will close.

December 2022: We expect that ISS will publish its revised shareholder voting guidelines.

31 January 2023: Overseas entities that own land or property in the UK will be required to declare their beneficial owners and/or managing officers.

30 March 2023: 1- and 6-month synthetic sterling LIBOR will be discontinued.

April 2023:

  • Dividend tax increases will be reversed.
  • Off-payroll working rules will be reversed.
  • The limit on the value of options under Company Share Option Plan will be doubled.
  • The basic tax rate will be cut from 20p to 19p.

30 June 2023: US Dollar LIBOR will be discontinued.

It may be of interest to take a look at our briefing on AGMs and Reporting published in March 2022, our September 2021 Listed Company Update and our ESG timeline.


For further information, please contact

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