Flint Bishop's Employment Law Solicitor, Emma Cooper

If you are facing a claim for unfair dismissal then this blog post should be of interest to you, especially if the employee is challenging your written warnings.

As you know, it takes a lot for an employer to give an employee a final written warning; even more to dismiss them when the employee continues with their misconduct. But sometimes employers are left with no choice but to take this sort of action.

Imagine then, having gone through the right process at every stage from warnings to dismissal, only to find your employee is accusing you of unfair dismissal – because they didn’t agree that the final warning was fair.

Can a Tribunal actually go back and investigate your decision to make the final written warning?

That was what the question raised in the case of Davies v Sandwell, which went as far as the Court of Appeal.

In this case, the employer, Sandwell Metropolitan Borough Council, dismissed the employee, Ms Davies, for misconduct. In making their decision to dismiss her they considered a previous written warning they had given her.

Whilst Ms Davies decided not to challenge the final warning at the time it was given, when she brought her claim for unfair dismissal she said that she had not committed the misconduct that resulted in the final written warning. As the warning was therefore invalid she said it should provide evidence towards her unfair dismissal.

So was her employer guilty of unfair dismissal?

The Court decided that it was not the Tribunal’s job to go back through an employer’s disciplinary processes to see if they were right to issue a final written warning and if it was legally valid. Instead it should focus on considering the fairness of the dismissal.

Only where the employer gave the warning in bad faith or issued an obviously inappropriate warning could the Tribunal consider if the employer should have used the warning to decide on dismissal.

However, where an employee had not appealed about the final warning or had withdrawn their appeal, the Tribunal would need exceptional reasons to justify investigating the disciplinary process.

Are you worried about an unfair dismissal claim?

If you are concerned about a potential unfair dismissal claim that your organisation is facing, or if you want further information and advice on how to avoid such claims, please do contact any of the employment team on 01332 226 149 for a confidential chat.

Alternatively, visit our website to see how our FB Support service can assist you with unfair dismissal advice and other employment law and HR support. Click here for full details: http://www.fb-support.co.uk/services/fixed-cost-packages/

Commercial law solicitor, Katie Cooper

Directors liability can be a confusing area of the law but if you get it wrong the consequences can be horrendous.

Worryingly, many directors do not realise that they can be held personally liable for their company’s debts, even where it seems obvious that the company should cover the cost.

However, there are actually quite a few instances where this can happen. In fact, in some cases, it has led to directors paying out hundreds of thousands of pounds from their own pocket and even going to prison.

It’s all down to the contracts you enter into and the circumstances surrounding your involvement.

So what are the risk areas with directors liability?

Directors can be liable for the following activities:

• Wrongful or fraudulent trading
• Personal guarantees
• Confusion as to who the other party is contracting with
• Fraudulent misrepresentations
• Exceeding their authority

At a quick glance, it may seem that most directors would never get involved in the above. But some of the areas of directors liability don’t seem so black and white at the time and it can be easy to fall foul of the law without realising it.

That’s why I have put together this FREE legal guide: Personal Liability – Protection for Directors. This handy guide sets out:

• The situations where directors liability applies
• A handy dos and don’ts checklist to help reduce your risk
• Case studies on what can happen to directors who get it wrong

The guide is useful for general information on directors liability, but it will be of immediate relevance if:

• Your company is facing liquidation
• Your contracts may contain personal guarantees
• You sign contracts under various trading names
• You have misgivings that your company cannot fulfil a contract
• You have entered a contract when you didn’t have authority to do so

To access your FREE guide on directors liability now just click here.

I hope you find this brief guide useful. But if you have any questions on directors liability, please feel free to contact me, Katie Cooper, Commercial Solicitor at Flint Bishop on 01332 340211.

Flint Bishop's Employment Law Solicitor, Emma Cooper

There can be many reasons for dismissal of an employee, including conduct, capacity, redundancy or breach of statutory restriction.

But if none of these reasons for dismissal apply, how can you remove an employee without fear of being sued?

This happened in the recent case of Lund v St. Edmunds School. Mr. Lund was dismissed after alienating his colleagues and affecting staff morale because of his frustration with the school’s computer equipment.

The school considered the more common reasons for dismissal but could not dismiss him on grounds of misconduct as the problem was more about how his behaviour affected other staff.

So the school dismissed Mr. Lund on another legitimate ground for dismissal called ‘some other substantial reason’ (SOSR).

Reasons for dismissal – SOSR

The reasons for dismissal known as SOSR can include where your employee:

• Causes significant business disruption due to personality clashes
• Refuses to accept changes to their employment contract
• Is likely to divulge confidential business information
• Can no longer be trusted
• Causes significant customers or other 3rd parties to call for their dismissal

In this case, the Employment Tribunal found the school was within its rights to dismiss Mr. Lund on the basis of SOSR but that the dismissal was procedurally unfair because:

• Mr. Lund had no warning of the dismissal meeting
• He had not been given the chance to appeal and
• Nobody had tried to deal with his concerns about the computer system before “attitudes hardened on both sides”

These errors underline what not to do when going through a dismissal process. First of all, you have to have the right reasons for dismissal and secondly you have to follow the correct procedure.

But the case of Lund v St. Edmunds School is also important for another reason. This is because the Employment Tribunal did not award an increase (known as an ‘uplift’) to Mr. Lund’s compensation for the fact that the school had breached the Acas Code of Practice. This is because the Tribunal decided that the Code did not apply to SOSR dismissals as it made no reference to this.

However, this ‘loophole’ was soon closed when the Employment Appeal Tribunal overturned this decision. They made it clear that the Acas Code of Practice does apply in SOSR cases and applied the uplift to Mr. Lund’s compensation. Mr. Lund may have contributed to his dismissal, but he did not contribute to his employer’s failure to follow the Acas Code of Practice.

So if you are planning on dismissing an employee, make sure you have the right reasons for dismissal and remember to follow the Acas Code to the letter.

Still unclear about the reasons for dismissal?

I can guide you through the legitimate reasons for dismissal and the correct process to follow. So if you are worried about a potential Tribunal claim that your organisation is facing, or if you want advice on how to avoid such claims, please call me, Emma Cooper, Employment Solicitor at Flint Bishop, on 01332 226 149 for a confidential chat.

Katie Cooper, Commercial Solicitor

You may be aware that trade mark infringement involves you using someone else’s registered business logo or brand to promote your own product or service.

But with the coming of Pay per Click advertising, some businesses are finding that buying search terms that contain someone else’s trade mark can land them in hot water too.

You might even find that another business is promoting themselves by using your trade marked keywords. So where do you stand?

Trade mark infringement using Google’s AdWords

If you use Google’s AdWords programme as part of your online promotion of your business, you need to be careful about which search terms you purchase. If you don’t, you could be successfully sued for trade mark infringement like Marks and Spencer (M&S).

In a recent legal battle between M&S and Interflora, M&S purchased, through Google’s AdWords, the right for its adverts to appear whenever the terms “Interflora” or “Interflora flowers” were searched for.

Interflora argued that M&S was advertising its products in a way that was likely to cause consumers to think that there was an association between M&S and Interflora (which there is not) and that this amounted to trade mark infringement.

The judge sided with Interflora, finding that the “average consumer” could have been led to believe that the services M&S were promoting belonged to Interflora.

The court did accept that businesses can makes use of their rivals’ trade marks in keyword advertising.  However, they can only do so where there is no likelihood for internet users to be confused into thinking that the goods or services being advertised were the goods or services of the trade mark owner.

If you use Google AdWords so that your adverts are names or trade marks of another business that are searched for, I recommend that you take advice on whether or not you could be guilty of trade mark infringement.  Feel free to contact me, Katie Cooper, Commercial Solicitor at Flint Bishop LLP, on 01332 340211.

Commercial law solicitor, Katie Cooper

I am often asked ‘What is intellectual property?”  While it might sound like a strange and complicated concept, it is actually very straightforward.

Intellectual property is the product of our intellectual efforts.  To put it another way the term is used to cover the works, designs or inventions that are creations of the mind.

Intellectual property can be extremely valuable and the law recognises that we should be able to prevent others from using our intellectual property without our permission. 

In some cases, though, you do need to take specific measures to ensure your intellectual property is protected, for instance by registering your intellectual property or being careful who you share your ideas with.  Otherwise, anyone could start using your ideas.

So what is intellectual property made up of?

Intellectual property covers a number of works including art, music, design, software, inventions and logos.  There are different classes of intellectual property that attract different rights and which should be protected in different ways.  These are some of the classes of intellectual property:

Know-how

This is the information and trade secrets which make a business work.  There is only very limited automatic protection for know how and you will need to ensure your contracts with employees and business partners keep this information confidential and protected.

Trademarks

A trademark is used to distinguish the goods and services of one business from those of another e.g. a business name or a brand logo.  You can protect your trade marks by registering them.  You will need to carefully word contracts for licensing or selling a trademark so your interests are protected.

Copyright

If you produce an original work such as text on your website or software code you will automatically have the protection of copyright.  You can sue anybody who copies it without authority. You can also license and sell copyright works.

Design Rights

Design rights protect the appearance of a particular product.   Protection for design rights does arise automatically although you can protect your design rights my registering them.   Design rights can also being licensed and/or bought and sold. 

Patents

A patent is a registered right which protect methods and processes that makes things work i.e. inventions. 

You can find more information about the above rights at our web page on what is intellectual property, but if you would rather speak to someone don’t hesitate to call me, Katie Cooper, on 01332 340211.

Ken Dixon (centre left) and Carl Weston receiving the Award for Innovation

Derby law firm Flint Bishop has fought off tough competition to be named winner of the ‘Award for Innovation’ at the Halsbury Legal Awards 2013; the second time in recent years the firm has won a national innovation award.

The Halsbury Awards are organised by global publishing giant Reed Business Information and celebrate excellence in the law and those that give a great contribution to the legal sector.

Each award was assessed by a highly acclaimed panel of judges that included the President of the Law Society, the Chairman of the Bar Council of England, the Senior Vice President of Commercial Legal Counsel at VISA as well as several leading professors.  Well-known TV actor and comedian Hugh Dennis presented the award to Flint Bishop’s managing partner, Ken Dixon.

Ken Dixon says: “This is fantastic news for us. I believe that law firms today, more than ever before, cannot afford to stand still – which is why innovation and the development of new services are so important.

“In fact, in an age of technological advancements and changing client expectations, I believe innovation is the only way forward.

“I am proud that we can show innovation in so many of our practice areas such as wills and probate, conveyancing, employment, debt recovery and licensing.

“We always try to give our clients the best legal advice and client service possible. Our client research suggests we do, but it’s always nice to get impartial proof too.

“Not only does this continue what has been a great start to the year for us, it really highlights the hard work and commitment from all of our people.”

Flint Bishop’s commitment to business innovation has led to it winning numerous accolades in recent years, including the ‘Mould Breaking firm of The Year Award’ for innovation and runners-up status in the MPF Awards for ‘Best Use of Technology to Enhance the Client Experience’.

For more details on Flint Bishop and its legal services contact 01332 340211 or visit www.flintbishop.co.uk

Head of employment law, Robert Tice, explains parental leave

As an employment lawyer, I am often asked “What is parental leave and how long is it for?”

It is important to remember that unpaid parental leave is in addition to Statutory maternity and paternity leave and pay. So employers obviously need to be aware of how much unpaid leave their staff are entitled to when they become parents and when they can take this leave.

To work this out, employers need to be clear on four main points:

• Which employees are eligible for parental leave?
• How much leave are they entitled to?
• How much notice do they need to give you?
• Can you postpone their parental leave?

Which employees are eligible for parental leave?

Parents can take unpaid parental leave so long as they fulfil all of the following criteria:

• they’ve been employed by you for more than a year
• they’re named on the child’s birth or adoption certificate
• they have or expect to have parental responsibility
• they’re not self-employed, an agency worker or contractor
• they’re not a foster parent (unless they’ve secured parental responsibility through the courts)
• their child is under 5 years old (or 18 in special circumstances)

How much leave are they entitled to?

As of 08 March 2013, any employees you have that are entitled to take unpaid parental leave can take a maximum of 18 weeks unpaid leave, for each child. 

The leave should be taken up to the child’s fifth birthday, except if the child is adopted, in which case it should be taken up to their 18th birthday or the 5th anniversary of their adoption, whichever comes first. Special rules also apply where a child qualifies for the Disability Living Allowance, when parents can take the 18 weeks any time up until the child’s 18th birthday.

How much notice to staff need to give you?

Your employees have to give you 21 days’ notice before their leave period begins. If they or their partner are having a baby or adopting, the notice period is 21 days before the week the child is expected.

Can you postpone your staff’s parental leave?

Sometimes an employee can want to take leave at a difficult time for your business.  In some cases you will be able to postpone parental leave but you will have to have a very good reason. For example, if their absence would cause significant difficulties for the running of the business or a key part of it over that period.

However, you cannot postpone leave if:

• the father or partner is taking it straight after the birth or adoption
• the employee would then lose some of their leave, for example, if it meant postponing it until after the child’s 5th birthday

If you want to postpone your staff’s parental leave:

• you must write to them within 7 days of their request and explain why
• you must suggest a new start date within 6 months of the original date requested
• you must offer them the same amount of leave as they requested

If you still have questions around what is parental leave and how long is it for, feel free to call  me, Robert Tice, for a confidential chat on 01332 226 149. I’m Flint Bishop’s Partner and Head of Employment Law so I’ll be able to advise you on the right policies and procedures for your needs.

Commercial law solicitor, Katie Cooper

I am often approached by clients concerned about the implications of copyright. This might be because they have produced something they want to copyright. Or they may want to copy or play someone else’s work, perhaps as part of a business presentation.

The simple fact is that failure to respect someone’s copyright can lead to legal action against you and even criminal prosecution. So it’s important to understand:

a. what copyright is; b. what you need to do to copyright your work; and c. what penalties you could face if you copy someone else’s work.

What is copyright?

Copyright is a form of intellectual property.  Intellectual Property protects the results of our intellectual efforts.  Copyright protects certain original works at the point at which they become written down, recorded or otherwise fixed in some way.  It gives the creator of a specific work the right to prevent anyone else from copying or reproducing it without their permission.

The works that are protected by copyright include:

• literary works such as novels or computer programmes • artistic works such as paintings, illustrations and photographs • dramatic works such as dance • musical works • broadcasts • films • sound recordings • typographical arrangements of published editions

How can you copyright your work?

There is no process for “copyrighting” your work. The right arises as soon as you put your work down on paper or in another fixed form. There is no need to register the right although you might wish to protect your interests by applying the © symbol to your work and keeping proof that the work was created by you and at what point in time.

If you have produced a literary, dramatic, musical or artistic work it will be protected by copyright for your lifetime plus 70 years after your death. This means that nobody will have the right to copy your work or a significant part of it for that time.

If anyone does want to copy all or part of your work they will have to seek permission from you as the author or from someone to whom you have transferred your rights in the work.  

What are the implications of copyright infringement?

Most uses of someone else’s copyrighted work will require the copyright owner’s permission.  So if you do not get the consent of the copyright owner you will be infringing copyright if you:

• copy a work • issue copies of it to the public • rent or lend it to the public • perform or show it to the public • communicate it to the public • import an infringing copy • possess or deal with an infringing copy • provide the means for making an infringing copy

You will also be committing a criminal offence if you deliberately infringe copyright for commercial purposes, for example by selling pirate films.

If you infringe copyright, the copyright owner could be entitled to an injunction to prevent the unauthorised use of the work and damages for loss.  If you commit a criminal copyright offence, this could be punishable by imprisonment.

Legal advice on copyright issues

Do you need to defend your copyright against someone who has copied your work without permission? Or do you need to find out how to use someone else’s work without breaching copyright?

If you are concerned about the implications of copyright, contact me, Katie Cooper, or one of our other commercial lawyers on 01332 340211.

Emma Cooper, Employment Solicitor

As an employment law solicitor with Flint Bishop, I often get asked about the TUPE regulations for employees. Unfortunately, The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) is a notoriously tricky area of employment law. So it is no surprise if you are not 100% sure of where you stand.

That’s why I have put together this video on TUPE to give you some clear and straightforward advice on some of the most common questions I get asked.  In particular, I look at how TUPE regulations for employees relate to service provision changes. 

A service provision change covers 3 situations:

1. When you outsource for the first time.

2. When you change external contractor.

3. When you bring certain elements previously outsourced, back in house.

The Government is currently in consultation about removing the service provision change from the protection of TUPE.  But, as with all Government consultations, it looks like it will be  some time before this is confirmed and implemented. 

In the meantime, as an employer, you will need to understand how the current law works. So my TUPE video should give you some useful advice in this area.

It will it help you avoid the legal pitfalls surrounding the application of TUPE. It will also ensure you know how and when it applies in practice, so you can comply with the obligations on you. What is more, it will also help you understand when a particular issue may not be related to TUPE, and what action you should take in this situation.

Just click here to view my 13 minute TUPE Q and A video.

I hope the video answers any questions you have about employment law issues surrounding TUPE regulations for employees. But if you need further advice or assistance, please don’t hesitate to call me direct on 01332 226 149.

Emma Cooper, Employment Solicitor at Flint Bishop LLP

Head of Commercial, David Miller, discusses The Bribery Act 2010

The Bribery Act 2010 came into force on 1st July 2011. It aims to prevent bribery by modernising and simplifying the law and allowing the Justice system to deal effectively with those offences.

The Act affects businesses registered or doing businesses in the UK, individuals who live in the UK or British Citizens. It applies to both the public and private sectors.

People can have many different ideas about what constitutes bribery, but the Act itself defines ‘bribery’ as “giving someone a financial or other advantage to encourage them to perform their functions or activities improperly or to reward them for doing so”.

The Act creates various offences including:

-       Promising or giving a bribe

-       Taking or requesting a bribe

-       Bribing a public official

-       Failure to prevent bribery

The Bribery Act Corporate Offence

The Act also creates a corporate offence. As a result, commercial organisations can now be liable for failing to prevent acts of bribery committed by individuals who work for them.

In short, a business can now be prosecuted if a person associated with the business bribes another person to obtain business or some other advantage for the organisation.

Under the Act an ‘associated person’ is anyone who performs a service for the organisation such as an employer, agent or contractor.

The offence can be committed by any business registered in the UK or carrying out all or part of its business in the UK.

Penalties for breaching The Bribery Act

There are severe penalties for businesses that get involved in bribery. These include:

-       Unlimited fines

-       Debarment from public contracts

-       Personal liability for senior officers 

So how can businesses protect themselves?

It is a corporate defence for a business to show that it has adequate procedures in place to prevent bribery.

Unfortunately, The Bribery Act does not explain what it means by ‘adequate procedures’. However, the Ministry of Justice has provided some guidance by suggesting that businesses follow six principles to help them avoid bribery.

These principles are:

1. Proportionate procedures
2. Top level commitment
3. Risk assessment
4. Due diligence
5. Communication
6. Monitoring and review

For more details on these principles you can click here to view a video on The Bribery Act.

Flint Bishop’s commercial lawyers can advise you on how to ensure you comply with the above principles. In particular, you should look to:

 -       Review your policies and procedures

-       Train your staff

-       Include anti-bribery provisions in your contracts

-       Carry out due diligence

What about Corporate Hospitality?

This is an area which businesses seem particularly concerned about? Can they take a client out to a meal or a football match? Can they send Christmas gifts or host a client Golf Day?

The good news is that so long as any corporate hospitality you provide is reasonable and proportionate you will not be in breach of the law. However, you should not engage in hospitality which is:

-       Excessively or unusually generous

-       Designed to influence a decision maker to act improperly

If you would like any further advice on The Bribery Act please do not hesitate to contact me on 01332 226466 or email david.miller@flintbishop.co.uk.