Employers must tackle their game plan before kick-off

With the 2018 World Cup about to kick-off in Moscow, football fans will have their eye on the ball, whether for England or their home country.  

But it’s not just the players who need to warm up, as UK business needs to tackle the tournament challenge head-on, with the potential of lost working hours due to employees staying home to watch the games and disagreements in the workplace over competing team interests.  

Experts say the best approach is to revisit your policies now, before kick-off, and if there are any gaps in guidance, make sure to get them covered.  Then, it’s down to reminding everyone of the importance of staying within the boundaries for any workplace discussions, and a reinforcement of company attitudes towards absenteeism and any likely issues that may arise, such as alcohol consumption or watching games during working hours.   

Said Mark Ridley, employment expert with Coventry solicitors Band Hatton Button: “Major sporting events like the World Cup build a competitive atmosphere and when this spills over into the workplace it may inflame existing tensions, and that can spell difficulty for employers.

“With today’s multi-cultural workplaces there is more chance that ill-considered comments fuelled by nationality or race may give rise to offence, and the employer could find themselves liable for the actions of their employees and face claims for discrimination.” 

Policies should cover equal opportunities and non-harassment with clear disciplinary procedures for anyone who shows inappropriate behaviour with colleagues on grounds of nationality, colour or race.  

Companies also need to be sure their sickness absence procedures are up-to-date, that everyone knows the formal process to be followed and what will happen if there is an unauthorised absence.  Once the tournament is underway, if it is thought that any employee has taken time off to see a match, it’s worth making sure that back-to-work interviews are undertaken and the reason for absence investigated. There may have been a legitimate reason, but showing that any absence will be checked shows the focus is on and may help to see off subsequent absences among the workforce.

Similarly, attitudes towards alcohol consumption and use of internet during working hours for personal use should be addressed in the company handbook.  

“If you haven’t drawn up policies for any of these areas, then now is the time to do so,” added Mark.  “Also, you should check that existing policies are still fit for purpose.  Technology is developing quickly, and most people now have smartphones they can use to watch games. So, if previously you’ve only considered the use of company equipment in your internet policy, now is the time to tackle what happens if someone is making personal use of the internet during working hours on their own equipment.” 

ENDS

Web site content note:  

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Divorce goes virtual, but complex cases will keep their day in court

A new online service should cut the stress of applying for a divorce according to the Ministry of Justice, but family law professionals say it’s likely to benefit only those with simple finances who are pursuing the DIY route.   

The Ministry of Justice announcement of the nationwide scheme for online divorce applications follows a successful pilot earlier this year.  While rejections average around 40% for paper applications, because forms have not been completed correctly or documents are missing, only 0.6% were rejected in the online submission pilot.    

The move is one of the latest initiatives in a £1bn modernisation programme for the department, which will also see a reduction in the numbers employed in the courts.   And while professionals have welcomed any simplification to the process, they say the increasing complexity of finances, particularly in second marriages, is likely to keep many couples in court, in pursuit of a fair share of assets when the marriage ends. 

And the ‘fair’ share may not be the ‘equal share’ that is generally expected, particularly after a long marriage, with recent cases highlighting the attitude of the Courts in achieving a fair outcome, with the focus on needs and away from long term maintenance orders. 

In KA v MA, a pre nuptial agreement was a condition for the marriage, as the husband wanted to protect his accumulated assets to ensure they would pass to the sons of his first marriage.  The agreement was made, but when the marriage failed the second wife asked the court to set aside the pre nup, saying she had been pressured to sign it in those terms. The court did not set it aside, saying it had been entered into willingly, but in applying the test established in Radmacher v Granatino, they decided the pre nup did not properly meet her needs.  The result was that she was awarded a significantly higher contribution from her ex husband, but one that left his main wealth intact to pass on.   

The Radmacher case was a landmark judgement by the Supreme Court, giving weight to pre nuptial agreements.  While such agreements are not automatically legally binding in England and Wales, the judgement set out that:  ‘the court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications, unless in the circumstances prevailing it would not be fair to hold the parties to their agreement. 

Another recent judgement from the Court of Appeal has undermined the so-called ‘meal ticket for life’ of a joint lives maintenance order, with experts saying this is no longer something that divorcing spouses can be sure of securing from the English courts.  

Waggott v Waggott involved the ex-wife of a very successful businessman, whose attempt to secure an increase in her annual maintenance payment backfired. She had been awarded a settlement of £9.76m which included £175,000 per year in maintenance for the rest of her life, which she appealed, asking for an increased share of the husband’s bonuses and a variation of the maintenance order to give her an extra £23,000 per annum. Her former husband cross-appealed, and the Court of Appeal agreed with him, ordering a three-year non-extendable term instead.  

These two cases follow hard on the heels of the Court of Appeal ruling in Hart v Hart last year, which saw a wife awarded £3.5m, out of total resources of just under £9.4m, with greater weight given to the pre-marriage wealth of the husband.  This was despite a 23-year marriage, where an expectation would be for an equal distribution of assets, but instead the wife’s settlement was based on a calculation of needs. 

Said family law expert Tracy Cross of Coventry-based solicitors Band Hatton Button.  “These are high profile cases, involving big numbers, but they will have implications for other divorcing couples, however big – or small – the pie to be shared. 

“Even with the most amicable of divorces, it’s to be expected that each side will wish to secure the best outcome in terms of asset sharing, and any uncertainty about how their individual situation will be judged means they are likely to be taking advice and having their day in court, rather than simply following the DIY online route.” 

She added: “The assets and the family structures of divorcing couples tend to be more complicated these days.  Many more couples are entering into second and subsequent marriages, and may have children from previous relationships who they wish to protect.  Equally they may have built a business, or accumulated an asset base, and they want to hold on to that if the marriage fails.  It’s reason enough to consider a pre-nuptial agreement, setting out what each person has brought into the relationship, as the courts will take that into account in understanding what was intended.”  

Hart v Hart [2017] EWCA Civ 1306 (31 August 2017) 

KA v MA (Prenuptial Agreement: Needs) [2018] EWHC 499 (Fam) (13 March 2018) 

Waggott v Waggott [2018] EWCA Civ 727 (11 April 2018) 

Radmacher (formerly Granatino) v Granatino [2010] UKSC 42

 

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Employment Bulletin – May 2018

Large employers given extra time to report gender pay gap

Large employers who missed the deadline for reporting on their gender pay gap were given extra time to comply – but they were told they’ve entered the “last chance saloon” to avoid penalties.

Private and voluntary sector employers with 250 or more staff were required to report the information by 4 April.

The Equality and Human Rights Commission (EHRC) wrote to those who missed the deadline to tell them they had a further 28 days to submit their figures before an investigation takes place and an unlawful act notice is issued.

Failure to comply with the regulations will ultimately lead to an unlimited fine decided by the courts.

Rebecca Hilsenrath, EHRC Chief Executive said: “Those who haven’t reported really are entering the last chance saloon. This is not optional; it is the law and we will be fully enforcing against all companies that do not report.

“This legislation is in place to bring about better gender equality in the workplace and any employer not complying needs to ask themselves tough questions, re-think their priorities, be prepared for serious reputational damage, and be ready to face a very unhappy workforce.”

The EHRC calculates that the gender pay gap is currently running at 18.4%.

The requirement currently only applies to large employers, but it shows the importance the government attaches to equality in the workforce. Smaller employers may also wish to ensure their employment policies are up to date and reflect current requirements.

 

Employer must pay transgender employee £47,000 compensation

A transgender employee has won her claim of constructive dismissal after she was forced to resign following a series of discriminatory comments from her colleagues.

The employee worked as a retail assistant for a high street clothing brand.

She was subjected to various bullying comments and actions by several of her colleagues, including being told she had a “man’s voice”, “had evil inside her” and that she was “a joke”.

The employee was also sprayed with perfume, and had her privacy invaded in the ladies’ room when a colleague told a tradesman he could enter to carry out maintenance because there were “no women in there”.

The employee reported the discriminatory behaviour to her superiors, leading the employer’s HR team to order the department leader to investigate.

However, the employee was not informed of the outcome of the investigation or given the opportunity to appeal it.

The harassment continued so the employee refused to return to work unless the employer addressed the situation.

Eventually she emailed a resignation letter.

The employee then took the case to an Employment Tribunal which ruled in her favour.

It found that the employer did not deal properly with the discrimination or harassment she was subjected to on several occasions.

She was awarded over £47,000 for loss of past and future earnings, loss of pension, interest and injury to feelings.

 

Employers named and shamed for paying under minimum wage

Nearly 180 employers have been named and shamed for paying more than 9,000 workers less than the National Minimum Wage.

The underpayments totalled £1.1m. Those workers underpaid have now received back payments of the wages owed.

The worst offending sectors were retailers, hospitality and hairdressers.

The offending firms were fined a total of £1.3m, and their names were published online.

The minimum rates increased on 1 April. The National Living Wage applies to most workers over 25; the National Minimum Wage applies to most workers under the age of 25.

  25 and over 21 to 24 18 to 20 Under 18   Apprentice
April 2018 £7.83 £7.38 £5.90 £4.20 £3.70
April 2017 (previous) £7.50 £7.05 £5.60 £4.05 £3.50

The Department for Business, Energy and Industrial Strategy (BEIS) has launched a campaign to raise awareness of the new rates and encourage workers to speak to their employer if they think they are being underpaid.

Business Minister Andrew Griffiths said: “The world of work is changing, and we have set out our plans to give millions of workers enhanced rights to ensure everyone is paid and treated fairly in the workplace.

“There are no excuses for short-changing workers. This is an absolute red line for this government and employers who cross it will get caught – not only are they forced to pay back every penny, but they are also fined up to 200% of wages owed.”

These latest changes come after the government published its Good Work Plan in February.

Other new rules include the right for every worker to receive a pay slip detailing how many hours they have been paid for, making it easier to identify and challenge if there is an error.

The new system is expected to benefit around 300,000 UK workers who do not currently get a payslip.

Firm records biggest ever turnover

The Midlands’ buoyant property market has seen one of the region’s law firms record its biggest ever turnover.

Coventry-based Band Hatton Button solicitors achieved £4.5 million turnover in the 12 months to April 5, 2018, an increase of six per cent on the previous year.

A significant driver of growth came from the firm’s commercial property department.

Key commercial property deals include acting for Irwin & Wilcox Support Services on the sale of various multi-million pound care homes across the West Midlands, assisting SMEs expanding into bigger premises, and ongoing consultations with national retailers.

Band Hatton Button is also seeing growth in other sectors such as residential property, Corporate and Commercial, Wills, Trusts & Probate, and Family.

The news comes after the firm recently celebrated five years since Band Hatton, Button Legal and Varley Hibbs joined forces to become Band Hatton Button. The firm has grown from 62 staff members to 83 in that period, with further plans to recruit in the future.

Mark Moseley, managing director at Band Hatton Button, said: “Our performance as a business reflects the wider financial mood of the Midlands, and the signs are very encouraging.

“From the almost 4,000 new instructions we received last year, we can see that businesses are expanding, more people are buying houses, and increasing numbers of people are protecting their assets, which is encouraging news for the region.

“That said there is still a lot of financial uncertainty across various sectors at a national and global level, so this is a fantastic achievement by the whole team.

“We also have several initiatives in place that will help us to grow even further in the future. This includes addressing and evolving our digital offering and adapting to suit consumer habits and preferences.

“Our board is also now an Alternative Business Structure, which allows us to attract investment and expertise beyond the law sector should the need ever arise.

“Our lawyers have loyal sought-after clients which we are incredibly proud of, and over the coming months our focus is on adding more high calibre staff to our teams to meet demand.

“Coventry is an exciting city to do business in, which will only heighten as we get closer to the city becoming UK City of Culture in 2021, and as a leading business in the city, we need to ensure we are ready to capitalise on the commercial benefits when the city is put onto the national stage.”

Team help pack more than 50k meals to tackle hunger

Tens of thousands of meals have been donated and packed in Coventry in just one day to help starving families in the UK and overseas.

More than 300 volunteers – including 20 staff from Coventry solicitors Band Hatton Button – came together at King Edward VIII School on Warwick Road to pack 50,112 meals for the Tackling Hunger project.

Around 815 million people in the world don’t get the food they need for a healthy life, according to the Food and Agriculture Organisation of the United Nations.

The Trussell Trust, which has 400 food banks around the UK, also revealed it provided nearly 1.2 million food parcels to starving people in Britain last year.

The challenge was organised by the Rotary Clubs of Kenilworth and Leamington Spa Regency along with Rise Against Hunger which co-ordinates the distribution of aid, The Trussell Trust and King Henry VIII School.

Around 250 kilos of food was also donated to the Trussell Trust, while volunteers also donated £1,000 to the food bank for equipment to support their work.

Meals packed on the day were made up of ingredients such as lentils, maze, rice and hydration sachets.

Jonathan Miller is the President of the Rotary Club of Kenilworth and co-led on the organisation of the Tackling Hunger event.

He said: “To have made up 50,000 meals is a brilliant effort, so I’d like to say a big thank-you to every single volunteer who came along on the day.

“It was fantastic to see so many generations and organisations coming together to help make a difference at a time when the number of people accessing food banks are on the rise.

“The day was a good opportunity to raise awareness of just how many people are going hungry, and will hopefully inspire everybody who attended on the day to help with similar events in the future.

“Such was the success of this event we are already planning to hold another event next year, so watch this space.”

Other volunteers that joined Band Hatton Button on the day included those from King Henry VIII School, Campion School, Kenilworth School, the Air and Sea Cadets, Guides and Heart of England Rotary Clubs.

Sarah Jordan, head of marketing and client relations at Band Hatton Button, added: “In addition to providing volunteers, our £1,000 sponsorship of the event has funded more than 4,000 meals.

“The day was a real eye-opener into how serious this issue is, and hopefully as the word spreads, the next event can be even bigger.”

The hidden disability – when mental health affects employee wellbeing

Mental Health Awareness Week – 14th-20th May 2018 – is an opportunity for employers to revisit current practices and to see if their policy and culture match up to best practice

The taboo of talking about mental health has started to shift, following several high-profile campaigns, but many employers are keeping quiet and avoiding conversations with staff, even though they have legal responsibilities and it’s been shown to improve the bottom line.  

According to the Health & Safety Executive, over 11 million working days are lost each year, because of stress in the workplace.  Research among workers by MIND, the mental health charity, found that a continuing culture of fear and silence around the topic was adding up to a big cost to employers, with over 20% reporting they had called in sick to avoid workplace stress, and 30% saying they did not feel they would be able to speak openly with their line manager about the issue.  

Such figures highlight the need for companies to have strategies focused on mental health as part of employee wellbeing, to tackle stress-related absence and to avoid potential complaints or even litigation from staff.  

Employers have a legal duty to protect employees from stress at work by undertaking a risk assessment and acting on it.  And where an employee is suffering from a mental health condition which has a long-term effect on day to day activity, this may be classed as a disability, requiring the employer to take positive action under the Equality Act 2010.  The Equality Act makes it unlawful for an employer to treat a disabled person less favourably because of their disability, without a justifiable reason.

Also, it may be important that employers know about any medication being taken if it may affect an employee’s ability to undertake tasks or operate machinery.  That requires an open culture, and clear routes for employees to raise such matters.  

Explained employment law expert Mark Ridey of Coventry solicitors Band Hatton Button: “Best practice is for employers to have clearly stated policies that are reflected in the company’s culture, so that a manager who notices a change in personality, evidence of low mood or periods of increased absence, will feel equipped to enquire if any workplace support is needed.  It needs to happen in a supportive environment where the employee feels comfortable in opening up and asking for help, if needed. 

“It’s important to avoid an atmosphere where an employee feels that raising the issue of mental health may affect their future prospects, or that they will feel stigmatised by asking for help.  Unwillingness to talk can make for a difficult position for employers.”

Such difficulties have been highlighted in disability discrimination claims that have reached the Court of Appeal.  One involved a former employee of Newport City Council, who had been off work on three separate occasions for stress-related illness and depression.  Finally, the Council asked an occupational health advisor for an opinion on whether the employee was fit for work. The opinion given was that he was not a candidate for ill-health retirement and that he was not disabled for discrimination purposes. When he was subsequently dismissed following allegations of bullying, he brought a claim of disability discrimination.  The Council said that it relied upon the opinion of an occupational health expert, but the Court of Appeal said that an employer must make a factual judgement and cannot “simply rubber stamp the adviser’s opinion”.  

The need to look more carefully was reflected in another recent case, involving an employee who had been resistant to discussing her health issues and would not allow contact with her GP.  Here the Court of Appeal found in favour of her employer, Liberata UK Ltd, because the company did all it could “reasonably be expected to have done” – it did not rely solely upon occupational health advice, but reviewed it in the light of its own experience and impressions of the employee, and undertook its own further investigations.

He added: “In creating and maintaining a culture of wellbeing, an employer should start from a perspective of how best to provide everyone with responsible support and protection from unfair or discriminatory treatment and should reflect that in processes and practice.  If anyone has issues that impact on how they may perform a particular function – whether related to physical or mental health – then it’s important to look at how to introduce reasonable adjustments to enable them to fulfil the role.” 

Resources for use in the workplace for Mental Health Awareness Week

Gallop v Newport City Council [2013] EWCA Civ 1583 

Donelien v Liberata UK Ltd [2018] EWCA Civ 129

Web site content note:  

This is not legal advice; it is intended to provide information of general interest about current legal issues.

The difference between freehold and leasehold

To make your home your castle, be sure who owns the drawbridge – by Conveyancing expert Sarah Avern

The Government has announced plans to tackle unfair leaseholder arrangements on new build properties, but in the meantime, as the Spring housing market gets into full swing, it’s worth understanding the difference between freehold and leasehold property.  

Increasing property prices and high population densities have seen a big increase in the number of leasehold properties across the country, as houses are split into flats and new apartment blocks are built, so there are now 1.4 million leasehold houses across England.  

And while leasehold arrangements are generally seen as a simple route to managing multiple occupancy buildings, over the past twenty years there has been a big increase in the number of houses being sold by developers on a leasehold basis.  These sales have seen ground rents being set at much higher levels than the ‘peppercorn’ arrangements that were typical previously, and with scheduled increases.  In the worst examples, leases include terms to allow the ground rent to double every ten years.  

The new measures announced by the Government will target such practices, including a ban on leaseholds for almost all new build houses, and changes will also be made so that ground rents on new long leases – for both houses and flats – are set to zero.  The government say that it will also make it cheaper and easier for existing leaseholders to buy-out their freehold, and that there will be routes to redress for those facing the most onerous terms.

We must wait for the detail and timetable for the introduction of these changes, which are anticipated to happen during 2018, but in the meantime, whether buyer or seller, it is worth being prepared by understanding the basis on which a property is being sold.  For prospective buyers, knowing the right questions to ask could save a lot of wasted time and resources.  And for sellers, it can ease a sale if you pre-empt any concerns and know the answers to the questions you may be asked.  

  • What form of ownership? 

It’s important to check exactly what form the ownership takes, and then ask the right questions. If it’s freehold, you will own the property and the land it sits on, but there may be other responsibilities that are not so obvious, such as contributing towards maintenance of a private shared access road.

If it’s a shared freehold, then you will own your personal space in the property, and generally a share of the land and the shared spaces.  Any maintenance is likely to be subject to agreement between all the freeholders, and the cost shared between everyone.  

If it is leasehold, then you will be buying the right to live in the property for the remaining duration of the lease, with the land, the structure of the building and shared spaces owned by the freeholder, who may be an individual landlord or a property management company.  They will hold the buildings insurance and will consult with leaseholders about any works that are required, collecting service charges from each leaseholder to pay for all maintenance and managing such work. The owner of a leasehold property is effectively a tenant in a very long-term rental, having to pay an annual ground rent and ask for consent to make any changes to the property.  

  • It’s a lease, so how long does it have to run? 

Leases of between 99 and 999 years are commonly granted and generally the value of a property will reduce as the lease gets closer to the end, but don’t expect to snap up a bargain if you’re looking for a mortgage as lenders are unlikely to make a loan on a property with anything less than 25 years left to run.  If a property has only a short time left on the lease, you can ask the seller to seek an extension, but expect to pay for the benefit.  A lease extension can be requested at any time by a leaseholder.

  • How much is the ground rent? 

Normally ground rent will apply only if it’s a leasehold property.  Ground rent can be a fixed charge or one that will change over time, so check out how much is being paid currently, but look through the small print as well, to be sure there are no big increases on the way. If any escalation is written in, then it should not allow for a rise that is more than the retail price index. Again, if you are seeking a mortgage, a lender will be looking to see affordability not just in the headline purchase price, but also in the ongoing costs of ground rent and the service charges. 

  • How much are the service charges? 

Service charges can strike fear in the hearts of leaseholders, even when they have very deep pockets, as all work is likely to be relative to the size and standing of the overall building. Be quick to ask for evidence of the service charge budget and the accounts for the past three years and don’t be afraid to ask around about the freeholder. The agent may assure you it’s a big property management company with the right infrastructure, but if research shows they have a poor reputation in getting work done, or in the amounts being charged on, you’ll be glad you checked.  

  • Are repairs and maintenance up to date?

Take a good look at how well things are maintained as you view the property and then check it out against those service charge accounts you’ve asked for. If everywhere is looking a bit run down, there’s no evidence of regular work being done in the accounts, and there’s very little being held in the pot for future works, you can expect a big bill, or an increasingly rundown environment. A survey is just as important when buying a flat as when buying a house. And importantly, be clear about the proportion you must contribute.

And finally, for the seller, it’s always a good idea to get your ‘house in order’ by tackling paperwork before the sale board goes up. There are forms requiring detailed information about the property itself and one covering all the fixtures and fittings. If it’s a leasehold property you will have to complete one covering details around the lease such as the rent, service charges, insurance and future work. By working with your lawyer in advance to prepare all the forms that will be required, you’ll be well prepared to answer all the questions your potential buyer may have for you.  

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Employment Bulletin – April 2018

May welcomes ‘Good Work Plan’ to improve worker rights

The government is set to launch its ‘Good Work Plan’ to keep employment laws up-to-date with the changing world of work in the modern economy.

It follows recommendations made in the Taylor Review of working practices and it is hoped that millions of workers will benefit from the reforms.

The government will seek to protect workers’ rights by:

  • taking further action to ensure unpaid interns are not doing the job of a worker
  • introducing a new naming scheme for employers who fail to pay employment tribunal awards
  • quadrupling employment tribunal fines for employers showing malice, spite or gross oversight to £20,000 and considering increasing penalties for employers who have previously lost similar cases.

The government says it will ensure workers are paid fairly by:

  • providing all 1.2 million agency workers with a clear breakdown of who pays them and any costs or charges deducted from their wages
  • asking the Low Pay Commission to consider the impact of higher minimum wage rates for workers on zero-hour contracts
  • considering repealing laws allowing agencies to employ workers on cheaper rates.

The government will increase transparency in the business environment by:

  • defining ‘working time’ for flexible workers who find jobs through apps or online so they know when they should be being paid
  • launching a task force with business to promote awareness and take-up of the right to request flexible working introduced in 2014
  • making sure new and expectant mothers know their workplace rights and raise awareness among employers of their obligations
  • launching a new campaign to encourage more working parents to share childcare through Shared Parental Leave – a right introduced in 2015.

In some cases the government plans to go further than the review’s proposals, including:

  • enforcing vulnerable workers’ holiday and sick pay for the first time
  • a list of day-one rights including holiday and sick pay entitlements and a new right to a payslip for all workers, including casual and zero-hour workers
  • a right for all workers, not just zero-hour and agency, to request a more stable contract, providing more financial security for those on flexible contracts.

Prime Minister Theresa May said: “We recognise the world of work is changing and we have to make sure we have the right structures in place to reflect those changes, enhancing the UK’s position as one of the best places in the world to do business.”

 

Manager ‘unfairly dismissed’ for refusing pay cut

A shop manager has won her unfair dismissal claim after she was sacked for refusing to accept a new contract on a lower pay grade.

The manager had worked for her employer for 18 years.

The company restructured its employment model, merging the roles of shop manager and deputy manager into one new position.

The new contract offered to the manager meant her annual salary would have fallen by almost £5,000.

She would also have lost the benefits of double pay on bank holidays and time-and-a-half pay on Sundays, and been required to work five days between Monday and Sunday, as opposed to five days between Monday and Saturday.

The manager was offered a supplement of almost £5,000 on her wages for her first year in the new role.

She refused to sign the new contract, despite several meetings with her managers in which she was warned that it could result in her being dismissed.

The manager received a letter from her employer terminating her employment, although she was invited to re-apply under the new terms.

She took the case to an Employment Tribunal, which ruled in her favour.

The judge said the employer’s actions were “dismissive” and displayed “unreasonable inflexibility… evidenced by its approach to her grievance”.

 

Whistleblower awarded £45,000 over constructive unfair dismissal

A school dinner lady has been awarded £45,000 in compensation after she was subjected to bullying because she reported a breach of policy by her colleague.

The employee became aware that some of the kitchen equipment was being taken off site for private use by a member of staff.

She reported the breach, but no investigation was made. The employee made another complaint which led to the resignation of the alleged offending staff member.

However, the employee claimed she was subjected to bullying after it became known that she had made the initial complaint. She reported the hostile working environment, but no action was taken by her managers.

She felt she had no choice but to resign and made a claim of constructive unfair dismissal.

The tribunal ruled in her favour. It stated that the bullying allegations “ought to have been investigated by management’ and that the employer “did not adequately respond” to the complaints.

She was awarded £45,000 in compensation.

 

Firm halts progress of family who set up rival business

A firm that bought a clothing business from a group of family members has won a court injunction to prevent them setting up in competition.

The court heard that the family had sold their business for a substantial sum. The new owners employed the family members under contracts containing restrictive covenants preventing them setting up a rival business while still employed or for 12 months after resigning.

All the family members then resigned shortly after the takeover.

The new owners alleged they breached the covenants by creating a competing business while still employed, soliciting other employees and customers, and using confidential information.

The court found in favour of the new owners. It said they had presented a strong case that the family had been building up a new competitive company while still in employment, had made use of connections with customers, suppliers and employees, and of confidential information to secure orders.

It granted an interim injunction enforcing the covenants until the issues could be dealt with at a full trial.

The court also granted the new owners springboard relief. This is an injunction that prevents an employee gaining an unfair advantage or head start by abusing his employer’s trust and resources while secretly setting up a rival business.

The order is designed to leave the employee in the same position he would have been in if he had resigned and obeyed the terms of his contract before setting up a new business.

Post Brexit direction on Intellectual Property Rights

Brexit negotiators have finally thrown a light on the future of intellectual property rights, with an indication that EU-wide rights will be replaced with equivalent UK rights after the end of the transition period.

Currently the EU Trade Marks (EUTM) and Registered Community Designs (RCD) are valid in both the UK and the rest of the EU, which had given rise to questions as to validity once the UK had left the EU. Now, the draft withdrawal agreement includes eight articles relating to intellectual property, detailing how such EU and Community registered designs are likely to be treated over coming years. 

Said corporate and intellectual property law expert Sean Byrne of Coventry based Band Hatton Button solicitors: “This detail was much-needed, and helps in understanding the best path to adopt for registrations as we head through Brexit. As currently stated, it suggests that separate UK and EU trade mark and registered design applications do not need to be filed, which was the belt and braces approach taken by many, pending an announcement on how conversions would be treated post-Brexit.”.

“We do not know whether this conversion will happen automatically, or whether it will require action by the holder of the rights, or indeed whether a charge will be levied, but it does give some reassurance that holders of EU trade marks registered before the end of the transition period can expect an enforceable intellectual property right in the UK post-transition, and that the renewal date will be the same.  Similarly, anyone holding a Community registered design right will become the holder of a UK registered design right.”

It is also expected that a new UK unregistered design right will be created, to provide the wider protection currently offered by the EU unregistered design right.  

The draft agreement also sets out that protection will continue post-transition for international registrations of trademarks or designs which designate the EU via the Madrid or Hague centralised application systems for registration in multiple jurisdictions.  The UK was already an independent signatory to the Madrid Protocol, and will independently accede to the Hague Agreement in June 2018.  The UK will also continue to be a member of WIPO – the World Intellectual Property Organization – which administers these international processes.  

Sean added:  “Post Brexit, alongside any UK registrations, businesses seeking protection in Europe will be able to register an EUTM or RCD to cover all remaining EU Member States.  However, filing through WIPO may become the simplest option, as it will cover the UK, the EU and countries such as the USA or Japan, with 68 countries signed up to the Hague Agreement and 116 to the Madrid Protocol.”   

For national protection, solely within the UK, trade marking, registered designs, patenting and copyright is administered by the Intellectual Property Office (IPO) and governed by the Intellectual Property Act 2014.  

As the Brexit negotiations continue, the IPO has said it is keen to hear views on the transitional arrangements from those involved in managing IP issues day-to-day, by emailing: EUenquiries@ipo.gov.uk

ENDS

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This is not legal advice; it is intended to provide information of general interest about current legal issues.

5 Year Anniversary Heralds New Era

A new era is being heralded at a Band Hatton Button as we celebrate our five year anniversary since we were formed. We are looking to the future by building on our strong growth and development as we celebrate the special anniversary on 6 April.