May 18th, 2012
Compare The Market has failed to seize the rights to the adult domain name comparethemarket.xxx.
In April BGL, the owner of the price comparison brand and a number of registered trade marks, launched a Uniform Domain Name Dispute Resolution Policy complaint with the Czech Arbitration Court, following the .xxx site being registered by a gentleman from Gwent last year.
The panel rejected BGL’s complaint, on the basis that it had failed to show that the .xxx site had been registered in bad faith, as it does not currently resolve to a website.
Trade mark owners should take note, as this decision indicates that they will be required to show clear evidence of bad faith registration (such as offers for sale to the trade mark owner or linking the domain to competitors’ adverts) in order to be successful in a complaint. This will be of particular concern for those linked to an .xxx domain, due to the potential for reputational damage.
Laura Mackenzie
0121 237 3959
lmackenzie@brownejacobson.com
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Tags: Browne Jacobson LLP, Compare the Market, Laura Mackenzie, trade marks, website domain name
Posted in Brands, Consumer contracts, Technology, Uncategorized | No Comments »
May 18th, 2012
One question often asked in a service provision change situation under TUPE is what percentage of time the employee spends working on the activity. Following Seawell v Ceva even 100% won’t necessarily result in a transfer.
Ceva Freight (UK) Limited provided a service to Seawell. Mr Moffat was employed by Ceva and worked exclusively on the Seawell account, although Ceva had other clients. Seawell brought the service in-house and Ceva claimed that TUPE applied.
A service provision change requires an organised grouping of employees which must carry out activities on behalf of the client as its principal purpose. Following this case and Eddie Stobart Limited v Moreman it is not enough that the employee happens to work on a particular service for the majority (or all) of his time. The organised grouping of employees must have been deliberately formed for the purpose of carrying out the work. There will be no transfer when an employee merely happens to work solely for a particular client.
Posted by Elish Kennedy, who specialises in contentious and non-contentious employment matters including representation at tribunal, discrimination – with a particular interest in maternity and sex discrimination, redundancy and TUPE.
Elish Kennedy
020 7337 1033
ekennedy@brownejacobson.com
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Tags: browne jacobson, Elish Kennedy, employment, employment law, tupe
Posted in Employment, Further Education, Health, Retail | No Comments »
May 17th, 2012
An audit managed by the NHS’s Health and Social Care Information Centre and Diabetes UK has revealed that nearly one in three hospital patients with diabetes are affected by medication mistakes. Hospitals in England and Wales were shown to have made at least one error in the treatment of 3,700 patients with diabetes during one week. Two thirds of these patients were admitted for reasons other than diabetes.
During the audit itself 68 patients developed diabetic ketoacidosis, which can be fatal if left untreated. Those patients who received incorrect doses of medication were shown to have suffered more than double the number of severe hypoglycaemic episodes than those correctly treated.
At Browne Jacobson we have been involved in cases where there have been medication errors in the management of diabetes and the results of this audit clearly highlight the importance of clinicians taking a multidisciplinary approach to diabetes management for patients in an acute setting.
Posted by Simon Tait, who specialises in high value clinical negligence claims; risk management, record disclosure, inquests, in-house litigation protocols and consent to treatment issues.
Simon Tait
0115 976 6559
stait@brownejacobson.com
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Tags: browne jacobson, clinical negligence, Diabetes UK, medical negligence, Simon Tait, Social Care Information Centre
Posted in Insurance, Insurance - Advisory, Litigation | No Comments »
May 17th, 2012
A council has been fined £70,000 under the Data Protection Act after highly sensitive and confidential information was stolen from a social worker’s home.
In this case the social worker took records home to work on them, storing them in a laptop bag alongside his encrypted computer. The material was under lock and key. Unfortunately he was the victim of a burglary.
The vast majority of those working with children and vulnerable adults are committed and hardworking. They often give up time outside work to catch up. Employers must ensure they are properly equipped and trained to do this safely. If not, more fines like that announced yesterday, are likely.
This is an important decision. A laptop bag is an insecure place for any papers and policies for staff authorised to take paperwork home must make it clear that all such records should be kept secure, and away from other valuable items. And remember, policies are no use unless they are accompanied by regular training!
Posted by Sarah Erwin-Jones, who specialises in social services, the care sector, education and negotiating legal costs; advises on risk management issues including data protection matters.
Sarah Erwin-Jones
0115 976 6136
serwin@brownejacobson.com
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Tags: browne jacobson, council fined, Data Protection Act, papers stolen in burglary, sarah erwin-jones
Posted in Public Sector, Social Care | No Comments »
May 16th, 2012
One of the bills introduced in the recent Queens speech of interest to the IT/IP sector is the Draft Communications Data Bill.
This Bill will ensure that relevant authorities can monitor communications data. The government has proposed this measure to meet the need of enforcement and intelligence agencies to access data to protect the public. This Bill is subject to much criticism and scrutiny due to its potential scope and privacy issues. Many are concerned at how the ‘communications data’ will be separated from the content of the communication without breaching privacy. ISPs and telecommunications companies will have to keep this data for 12 months, how this will be intercepted and stored remains a key issue.
It will also establish a new framework and safeguards to accompany the way the data is obtained, it remains to be seen how the Bill will be drafted to ensure adequate protection. Further detail is yet to be released and detailed debate in Parliament will no doubt follow.
Laura Richards
0115 908 4886
lrichards@brownejacobson.com
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Tags: browne jacobson, Communications Data Bill, government, Laura Richards, parliament, Queen's speech
Posted in Commercial contracts, Commercial Litigation, Intellectual Property, IT Contracts, Retail, Technology | No Comments »
May 16th, 2012
A report by the Open Rights Group has stated that filters on mobile phones are incorrectly preventing access to some innocent websites, which could have wide-ranging impact. The tools have been designed to filter out pornography to prevent children viewing inappropriate content on their mobile phones. Many phones come with this feature as a factory standard and requiring proof of age, for example, before filters can be removed.
The government had been approached to consider placing blocks on all broadband services provided through a fixed line. However, there have been calls to reject plans such as obligatory filters and instead have optional filters which can be activated by parents to prevent any issues regarding access to information.
The UK government is to consult with ISPs about automatic filtering as part of its discussion of the Online Safety Bill currently having its first reading in the House of Lords.
Laura Richards
0115 908 4886
lrichards@brownejacobson.com
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Tags: browne jacobson, House of Lords, Laura Richards, mobile phone filters, online safety bill, open rights group, websites
Posted in Commercial contracts, Commercial Litigation, Intellectual Property, IT Contracts, Retail, Technology | No Comments »
May 15th, 2012
The DfE are consulting on advice for using biometric data in schools and colleges following new measures contained within the Protection of Freedoms Act 2012. The advice states that schools cannot use biometric data (for example fingerprint identification and facial scanning) without first obtaining parental consent. The consultation closes on 3 August. The new guidance will come into effect in September 2013.
If parents (or pupils) don’t consent, the school must provide alternative means for accessing services. This will inevitably cause disruption for schools who rely on such data for recording attendance, granting access to libraries and processing cashless payments; some critics argue there are sufficient safeguards on the use of this information in the Data Protection Act.
Nevertheless, for many it as a welcome step forward, giving parents more rights in what happens to their children’s data. Schools will need to make clear how the data will be used to ease the process of obtaining the necessary parental consents.
Posted by Hayley Roberts, who specialises in education law advice to schools and academies, including advice on teaching schools, collaboration models and partnership structures, school companies, and a wide range of pastoral issues.
Hayley Roberts
0115 908 4862
hroberts@brownejacobson.com
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Tags: biometric data, browne jacobson, Data Protection Act, Hayley Roberts, Protection of Freedoms Act 2012, schools and colleges
Posted in Education | No Comments »
May 15th, 2012
MP’s have raised concerns about how school funds are spent, particularly around high salaries for senior staff and governor expenses. They are concerned that checks currently in place are insufficient to monitor schools and to make them accountable for their spending.
Local authorities (LAs) have traditionally been responsible for monitoring schools spending however with budget cuts and transfers of funding as a result of academy conversions many LA’s can no longer continue to monitor school finances effectively. The new Education Funding Agency has responsibility for overseeing this from central government although it is questionable how effective a centralised system of monitoring can be.
Many governors are volunteers and do not have the financial expertise necessary to ensure that they are operating a robust financial spending system in their schools. They need advice and support and to be accountable on a local level. With reduced capacity and funding in LA’s this appears to be one more argument in favour of an alternative middle tier.
Posted by Mark Blois, who specialises in advice to schools, colleges, and local authorities on the full range of legal issues, both contentious and non-contentious including changes of category, reorganisations, governance, commercial arrangements, special educational needs, disability discrimination, admissions, exclusions and safeguarding.
Mark Blois
0115 976 6087
mblois@brownejacobson.com
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Tags: browne jacobson, governors, high salaries, local authorities, Mark Blois, school funds
Posted in Education, Local Authorities | No Comments »
May 15th, 2012
Yesterday, Nick Clegg unveiled plans to introduce a £10,000 reward for the 50 schools that make the best use of the Pupil Premium and do the most to boost results of the poorest pupils.
Pupil Premium is an additional £600 funding per pupil eligible to receive free school meals, introduced with the intention of closing the gap between richer and poorer pupils. However, with funding cuts across the board, it may be difficult for schools to make the best use of these additional funds with some concerned that the extra money will simply plug funding gaps.
The government aims to encourage good practice in schools, although is introducing competition over funding the best way to achieve this? It is important all schools are fully and fairly resourced and that the most vulnerable children are provided for. The assessment process for the reward must take this into account as there is a risk that the most innovative school may not necessarily target the most vulnerable pupils.
Lauren Millward
0115 908 4864
lmillward@brownejacobson.com
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Tags: browne jacobson, Browne Jacobson LLP, Free school meals, Lauren Millward, Nick Clegg, pupil premium, schools
Posted in Education | No Comments »
May 15th, 2012
The biggest change to the SEN framework is being launched today with much fanfare being given to a new right for parents to control the funding for their child’s education and bring an end to the parental fight for appropriate provision for their children from the local authority. Under the new arrangements, the role of the local authority would be to assess the additional needs that the child has and it will be for parents to ensure that those needs are catered for by purchasing the required services.
Will this be any better than the current system? The current system is already seen to favour those parents who are better placed to argue for improved provision or have the funds to pay for expert reports to reinforce their arguments. It is unclear whether personal budgets will change this position and whether those who do not take the budget will receive a second rate service. If that is to be the case, then the stated aim of the government to eliminate inequalities in education would be seen to be failing.
Posted by Richard Freeth, who specialises in advice to schools and local authorities on the full range of issues including special educational needs, disability discrimination, admissions, exclusions, appeals, reorganisations, governance and academy conversions.
Richard Freeth
0121 237 3961
rfreeth@brownejacobson.com
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Tags: browne jacobson, parents funding childrens education, Richard Freeth, sen, special educational needs
Posted in Education, Local Authorities | No Comments »
May 14th, 2012
The Cabinet Office has published its latest Procurement Policy Note giving guidance to government departments (which includes their agencies and non-departmental public bodies) on how to implement the coalition’s procurement pledges. The main one is to reduce the number of procurement exercises carried out using competitive dialogue in what the paper calls a “presumption against competitive dialogue”. The Public Contracts Regulations 2006 already make it clear that this presumption is part of the EU’s procurement regime so this should be nothing more than a reminder of that.
However, the Note also gives guidance on how to manage pre-procurement engagement and use the Lean sourcing principles, both of which will no doubt be welcomed by contracting authorities (not just government departments) keen to better understand how to use these to reduce the time and expenditure of procurement exercises. One eye should be kept on the legislation and the case law to ensure that in using these techniques contracting authorities don’t unintentionally give unfair advantage to certain potential bidders.
Posted by Anja Beriro, who specialises in : local authority law, public sector procurements, commercial agreements, projects and shared services; clients: local authority and private sector bodies
Anja Beriro
0115 976 6589
aberiro@brownejacobson.com
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Tags: Anja Beriro, browne jacobson, cabinet office, government, policy procurement note, Procurement, Public Contracts Regulations 2006
Posted in Government bodies, Procurement, Public Sector, Retail, Uncategorized | No Comments »
May 14th, 2012
The Queen’s speech announced a number of Bills which will be introduced in the next parliamentary session. Those of importance to employers include:
• The Enterprise and Regulatory Reform Bill – encouraging early conciliation of employment disputes requiring claimants to lodge their claim with ACAS and improving the Tribunal system by “increasing flexibility and encouraging employer compliance”. No further detail was announced of how this would be achieved but financial penalties for unsuccessful respondents are being considered.
• The Children and Families Bill – giving parents access to flexible parental leave so that they can share care responsibilities.
• The Crime and Courts Bill – although no specific details in relation to employment tribunals were given, the bill aims include “ensuring a swifter, more open, efficient and effective court and tribunal system”.
Whether this legislative programme will achieve the government’s aim of “economic growth, justice and constructional reform” remains to be seen.
Posted by Gemma Steele, who specialises in contentious and non-contentious employment matters including; contractual issues, unfair dismissal, redundancy and all areas of discrimination.
Gemma Steele
0121 237 4561
gsteele@brownejacobson.com
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Tags: bills, browne jacobson, employers, Gemma Steele, parliament, Queen's speech
Posted in Employment, Retail | No Comments »
May 11th, 2012
The British Retail Consortium’s Director General has responded to Wednesday’s Queen’s speech, and in particular the proposed Groceries Adjudicator Bill, by saying that the government needs to show more restraint in respect of red tape then it did in 2011.
Making reference to the ‘one in one out’ policy for red tape legislation he pointed out that we’re still waiting for a piece of legislation to be scrapped to balance the tobacco display ban, which cost major retailers an estimated £16m to implement.
Given that the recent quarter has seen 57 retail companies entering administration (including Clinton Cards) we think the reduction of costly red tape will continue to be raised by retailers as a key issue during this financial year.
Mark Hymers
0115 976 6081
mhymers@brownejacobson.com
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Tags: administration, browne jacobson, Clinton Cards, government, groceries adjudicator bill, legislation, Mark Hymers, Queen's speech, Retail
Posted in Property, Retail | No Comments »
May 11th, 2012
HMRC have published further guidance on how they will decide if personal service companies (PSCs) fall inside the “IR35” rules, and so are required to account for PAYE and national insurance contributions. It may just be coincidence that this follows the recent publicity around use of PSCs by individuals working in the public sector.
The new guidance sets out twelve “Business Tests” with questions to help decide if a PSC would be caught by “IR35”, and each test has a score depending on the answer. The aggregate score from all twelve tests can then be used to decide if the PSC is in low, medium or high risk categories. The tests are not an exact science, and HMRC give examples of some situations that would be borderline, as well as those they think would be caught or not.
The tests are voluntary, but may well be useful for people either looking to set up a PSC, or who already have one, to gauge HMRC’s approach.
Posted by Andrew Noble, who specialises in corporate and real estate tax, employee share incentives, UK and cross-border; advises clients from private individuals to listed companies; Chartered Tax Adviser.
Andrew Noble
0121 237 3952
anoble@brownejacobson.com
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Tags: andrew noble, browne jacobson, employees, hmrc, IR35 rules, national insurance, paye, personal service companies, Tax
Posted in Tax | No Comments »
May 10th, 2012
Yesterday, in a speech to Parliament, the Queen announced details of a new Families and Children Bill. Plans include replacing SEN statements with a single assessment combining education, health and social care into one simple plan for 0-25 year-olds from 2014. Councils and health services will join forces to plan and commission the services that children, young people and families with SEN or disabilities need. The bill will also require local authorities to publish a local offer showing the support available.
Commentators have described the current system as overly-complex, bureaucratic and back-logged causing families to struggle to get the SEN services and support they need. The current SEN code dates back to 2001; an overhaul of the system is long-overdue.
It is essential that plans are thoroughly debated with clear statutory obligations put in place so that schools and academies are clear on what their obligations are. The bill is expected to be published I September 2013. No doubt this will be an ongoing and widely-debated discussion.
Posted by Hayley Roberts, who specialises in education law advice to schools and academies, including advice on teaching schools, collaboration models and partnership structures, school companies, and a wide range of pastoral issues.
Hayley Roberts
0115 908 4862
hroberts@brownejacobson.com
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Tags: browne jacobson, Education, families and children bill, Hayley Roberts, health and social care, parliament, SEN statements
Posted in Education | No Comments »
May 10th, 2012
Hull City FC face the prospect of legal action being taken against them by manager Nick Barmby, who was dismissed by the club yesterday.
It was widely reported in the media that the former England international had been suspended for questioning the lack of money made available to him.
Hull’s owners, in confirming Barmby’s dismissal, claimed Barmby had misled fans with his comments. The club has made the reasons for his dismissal public and stated that they are searching for a new manager, despite Barmby being given seven days to appeal against the dismissal.
Employers could potentially leave themselves at greater risk of a successful claim for breach of employment law if they publicise reasons for dismissal and take action to replace the dismissed employee before his appeal has been heard.
It will be interesting to see whether Barmby is prepared to take action against his home town club.
Posted by Jamie Otter, who specialises in corporate finance, M&A, disposals, private equity, joint ventures, reconstructions and sports law.
Jamie Otter
0115 976 6237
jotter@brownejacobson.com
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Rating: 9.5/10 (2 votes cast)
Tags: browne jacobson, football, Hull FC, Jamie Otter, legal action, manager nick barmby dismissal, Nick Barmby
Posted in Sport | No Comments »
May 10th, 2012
Russell Hobby, General Secretary to the NAHT made this statement in support of the Government’s proposal to introduce performance related pay for Teachers. He sees the move as positive for the careers of talented young teachers who should be awarded for performance, regardless of experience. The School Teachers’ Review Body has been asked to investigate the possibility of paying teachers on the basis of their performance. At the moment, the incremental pay of teachers increases automatically, unless they are in formal capability proceedings. This controversial move by the NAHT is out of step with all of the other teaching unions, the spokesman for ATL has commented, ‘it is completely misguided and a bad time to do it’.
The proposals are consistent with Mr Gove’s drive to improve standards by delegating power down to schools. How far he takes account of the concerns of unions remains to be seen.
Posted by Heather Bragg, who specialises in contentious and non-contentious employment matters including; contractual issues, unfair dismissal, redundancy and all areas of discrimination.
Heather Bragg
0115 976 6553
hbragg@brownejacobson.com
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Tags: Browne Jacobson LLP, Education, Heather Bragg, NAHT, performance related pay for teachers, Russell Hobby, schools
Posted in Education, Employment, Public Sector | No Comments »
May 10th, 2012
The European Commission has launched a major initiative to reform and modernise state aid control.
The key elements are:
- state aid control must support sustainable growth by discouraging aid that doesn’t bring added-value and distorts competition. The Commission will develop common principles for assessing national projects and will revise some existing texts
- state aid enforcement must focus on cases with the biggest impact, ensuring stronger scrutiny of larger aid, enquiries by sector and simplification of exemptions, especially the General Block Exemption Regulation – but Member States must improve submission quality and compliance with EU law
- streamlined procedures for quicker decisions and rules and concepts will be better explained.
State aid rules are notoriously complex and difficult to grasp. This review has unsurprisingly been triggered by European economic difficulties; anything which makes the regime simpler and more efficient has to be welcomed. However, the reform package won’t be in place until the end of 2013 at the earliest. It may be too little, too late.
Posted by Sharon Jones, specialising in: joint ventures, complex commercial agreements, projects and competition law including public procurement, state aid;clients: local authority, health, governmental, private sector bodies.
Sharon Jones
0115 976 6284
sjones@brownejacobson.com
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Rating: 10.0/10 (2 votes cast)
Tags: browne jacobson, EU Law, European Commission, european economic difficulties, Sharon Jones, state aid
Posted in Public Sector, Regulatory | No Comments »
May 9th, 2012
Recent figures show that approximately 128 academies have been overpaid due to government errors and must pay back, on average, £118,000 per academy.
Academies receive their funding direct from central Government, rather than via the local authority. These overpayments were awarded when the academies in question first converted. If the school business manager did not notice the error at the time, which would be understable given the other funding adjustments associated with conversion, the academy would have budgeted to take into account these extra funds. Academies only have until July to repay the funds, a sizeable challenge.
Under the funding agreement, the Government is entitled to claw back overpayments attributable to a miscalculation by the Secretary of State, although it must take into account any representations made by the academy. A lack of certainty around academy funding could trouble schools considering conversion and this error certainly presents an argument in favour of a single national funding formula.
Posted by Katie Michelon, who specialises in education law advice to schools, colleges and LEAs, including commercial advice on education sector projects such as academies, trust schools and federations.
Katie Michelon
0115 976 6189
kmichelon@brownejacobson.com
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Tags: academies, Browne Jacobson LLP, government, Katie Michelon, overpaid
Posted in Education, Further Education | No Comments »
May 9th, 2012
The Court of Appeal has given useful guidance on the issue of interim costs awards pending a final outcome of a large trade mark litigation matter, as part of the ongoing litigation between Specsavers v Asda.
The court felt it was appropriate (despite Asda arguing costs should be reserved pending the outcome of its application for permission to appeal to the Supreme Court) that although costs had not yet been formally assessed, Specsavers be awarded their costs, subject to a substantial discount to reflect the issues upon which it had lost as the court had already made a final determination of all issues concerning liability; except those specific issues referred to the Court of Justice of the European Union, for which costs must be reserved.
This pragmatic decision confirms that successful parties in a case should not have to wait unduly for their costs; however a win overall does not guarantee an award of costs for those specific issues they have been unsuccessful on.
Laura Mackenzie
0121 237 3959
lmackenzie@brownejacobson.com
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Tags: Asda, browne jacobson, Court of Appeal, Laura Mackenzie, litigation, Specsavers, Trade Mark
Posted in Commercial dispute resolution, Litigation | No Comments »
