Archive for June, 2011
Thursday, June 30th, 2011
Today ATL and NUT take action against the government’s proposed pension reforms. Picket lines are in place and cars are already beeping horns in support. It is, however, not the government who has to deal with the consequence of the strike but individual schools.
Although Michael Gove has hinted at ways to keep schools open, reports say that one third will be closed with another third partially affected It is extremely difficult for schools to safely remain open. Not knowing which staff are in which union means that schools generally have no way of knowing who will be on strike. With strict rules preventing the use of agency staff to cover lessons, many Head Teachers and Governors are forced to a position where they have no option but to close the school. With no clear end to this dispute, schools may look to more innovative (but time consuming) ways to keep schools open in the future.
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
VN:F [1.9.14_1148]
Rating: 0.0/10 (0 votes cast)
Tags: ATL, government, Michael Gove, NUT, pension reforms, picket lines, strike action
Posted in Education, Employment, Pensions | No Comments »
Thursday, June 30th, 2011
In his report following the death of Victoria Climbie, Lord Laming speculated that medical staff felt uncomfortable investigating evidence of deliberate harm to children. He found that when the possibility of non-accidental injury was raised by one doctor, it was often not picked up by others because of poor handover of responsibility.
It was clear to Laming that the quality of information exchange was often poor, systems were crude and information failed to be passed between hospitals in close proximity to each other.
This matches our own experiences dealing with health and social care professionals who have child protection concerns.
The GMC is currently consulting on new guidance that may help clear this up.
The guidance proposes that any doctor who suspects child abuse must raise the alarm immediately and tell parents what action they will be taking. Doctors acting reasonably in response to concerns about abuse or neglect will not be subject to censure. Consultation on the guidance runs until Friday 14 October 2011.
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
VN:F [1.9.14_1148]
Rating: 0.0/10 (0 votes cast)
Tags: abuse, child protection, consultation, GMC, Lord Laming, neglect, Victoria Climbie
Posted in Health, Social Care | No Comments »
Wednesday, June 29th, 2011
The Supreme Court has ruled that employees at disciplinary hearings do not have an automatic right to be legally represented.
The case R (on the application of G) v The Governors of X School followed a complaint made against a teaching assistant (G) for inappropriate sexual conduct which eventually led to his dismissal. G was not allowed legal representation at the disciplinary hearing or the appeal hearing.
This decision is highly significant because in cases such as this, there is no entitlement for a teacher to take a lawyer to an internal disciplinary meeting.
Despite the majority opinion, this is not necessarily the end of the debate so far as other professions, such as the legal profession, are concerned. If the disciplinary process involved could determine definitely the ability of a person to carry on their profession, then there is still an argument to be had that legal representation should be allowed.
Posted by James Tait, who specialises in contentious employment law, executive removals, re-organisations, restrictive covenants and other post termination issues; familiar with tribunals & the Court of Appeal.
James Tait
0115 976 6553
jtait@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 0.0/10 (0 votes cast)
Tags: disciplinary hearings, R (on the application of G) v The Governors of X School, sexual misconduct, Supreme Court
Posted in Education, Employment | No Comments »
Tuesday, June 28th, 2011
The decision in Publicis Consultants v O’Farrell is a stark warning to employers to be careful how they label termination payments in dismissal letters.
O’Farrell claimed breach of contract because Publicis’ dismissed her on four days’ notice instead of her three months’ contractual notice. O’Farrell was therefore entitled to claim damages for breach of contract, equivalent to her 3 months’ notice. However, her dismissal letter stated that she would receive a “ex gratia payment equivalent to three month’s salary”. Publicis claimed that the ex gratia payment was intended to compensate her for her period of notice and therefore should be offset against her notice pay. The EAT held the money was unambiguously advanced as an ex gratia payment and should not therefore be offset against her claim.
Care should be taken when labelling payments as ex gratia and it be made clear that the payment is intended to compensate the employee for their loss of notice to ensure it will be offset against any claim for notice pay.
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
VN:F [1.9.14_1148]
Rating: 6.5/10 (2 votes cast)
Tags: dismissal letters, EAT, Publicis Consultants v O'Farrell, termination payments
Posted in Employment | No Comments »
Tuesday, June 28th, 2011
The Scottish footballer Craig Thomson has today been suspended from Hearts Football Club after he was placed on a sex offenders list for inappropriate conduct toward underage girls on the internet.
The Club initially came out in support of Thomson. However, they have since suspended the player following extensive media coverage and pressure from one of Scotland’s leading child welfare charities. Furthermore, it was reported yesterday that the club’s water sponsor cancelled its contract as a result.
The importance of safeguarding in sport has never been doubted, but this incident shows that its significance to large, high profile clubs and to their commercial contracts cannot be underestimated.
Unwanted media coverage, a suspended player and the loss of sponsorship – for those that questioned the importance of safeguarding children in sports settings, this serves as a reminder of the possible consequences.
Posted by Dai Durbridge, who specialises safeguarding of children and vulnerable adults in education, social care and health settings; defending claims against education, social care and health providers.
Dai Durbridge
0115 976 6578
ddurbridge@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 5.5/10 (2 votes cast)
Tags: Craig Thomson, Herts Football Club, safeguarding, sex offenders list
Posted in Social Care | No Comments »
Tuesday, June 28th, 2011
In a move that has been highly criticised by teaching unions NAHT and the ATL, Michael Gove has suggested parents could step into the void left by striking teachers this week.
As well as appearing contradictory to the coalition line that teaching should be undertaken only by well trained and well resourced teachers, Mr Gove’s comment seems to cut through the fabric of the safeguarding measures put in place in schools over the last 10 years.
Under the current guidance a CRB check must be undertaken on volunteers with unsupervised access to children. Heads and Principals should also consider the suitability of each volunteer and consider getting references before allowing them to undertake volunteering duties.
Whilst Mr Gove has not suggested that the statutory guidance should be ignored for the purposes of the strike, perhaps it does hint at the government’s softening approach to safeguarding generally. Further amendments to Part 5 of the Protection of Freedoms Bill could follow…
Posted by Dai Durbridge, who specialises safeguarding of children and vulnerable adults in education, social care and health settings; defending claims against education, social care and health providers.
Dai Durbridge
0115 976 6578
ddurbridge@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 5.5/10 (2 votes cast)
Tags: ATL, Education, Michael Gove, NAHT, protection of freedoms bill, schools, striking teachers, teachers
Posted in Education, Social Care | No Comments »
Tuesday, June 28th, 2011
Last week saw a particularly challenging employment appeal tribunal decision for local authorities and managers in the care sector. An Iranian residential social worker successfully held his employer liable for acts of racial harassment carried out by an extremely challenging child. It was found that the employer was liable under the Race Relations Act 1976.
The tribunal concluded that the employer had known the employee had his accent mocked and that the child said he should go “back home”. The tribunal also decided that the local authority had not acted to put in effective measures to prevent the behaviour. The behaviour was harassment for which the employer was liable given its inaction.
The tribunal dismissed the argument that the child’s underlying intention was to challenge authority and was thus not racially motivated. This decision has important consequences for managers in the health and care sector, whether working with challenging children or the elderly.
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
VN:F [1.9.14_1148]
Rating: 10.0/10 (1 vote cast)
Tags: care staff, employment appeal tribunal, local authorities, Race Regulations Act 1976
Posted in Employment, Local Authorities, Social Care | No Comments »
Tuesday, June 28th, 2011
The government has recently announced specific proposals regarding the public sector pensions’ arena.
Danny Alexander confirmed in a speech on 16th June that the government’s proposals for members of public sector pension schemes at present comprise an increase in member contributions, an increase in members’ normal retirement ages and a career average structure for public sector schemes going forwards.
Although Alexander’s speech is consistent with some of Hutton’s 27 recommendations in his final report published earlier this year, it does not seem to be consistent with the government’s announcement in this year’s budget which confirmed that although the government endorsed Hutton’s recommendations there would be a period of consultation in order to establish how Hutton’s proposals would be implemented.
It seems, for the moment, that we are still waiting for the flesh to be put on the bones of Hutton’s recommendations.
Posted by Victoria Leybourn, who specialises in advising companies and trustees in all aspects of pensions law and local authorities and contractors on their obligations regarding public sector pension schemes.
Victoria Leybourn
0115 976 6160
vleybourn@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 0.0/10 (0 votes cast)
Tags: Danny Alexander, government, Hutton, pension reforms, public sector pension scheme
Posted in Employment, Pensions | No Comments »
Tuesday, June 28th, 2011
The EU council has given its ‘green light’ to the European Parliament after a provisional agreement on the regulation was reached last week. Parliament will vote on the regulation on 5 July 2011.
The regulation will, amongst other things, extend compulsory country of origin labelling, create new requirements in relation to allergens, vegetable oils and imitation foods, and create a new ‘mandatory nutrition declaration’.
Proposals in relation to trans fats, and the further extension of country of origin labelling have been left in the hands of the commission to assess further. To add to this the EUFIC only yesterday released a report questioning whether consumers make healthier choices as a result of nutrition information on packaging.
Businesses may therefore find themselves further amending their labelling not long after the current proposals come into effect.
If approved, businesses will have 3 years to adapt to the new rules, and then a further 2 years to apply the ‘mandatory nutrition declaration’.
Posted by Fiona Carter, who specialises in commercial regulation, compliance advice and investigations; is head of Browne Jacobson’s advertising and marketing team and food and drink group.
Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 0.0/10 (0 votes cast)
Tags: EU council, EUFIC, mandatory nutrition declaration, nutrition information, parliament
Posted in Advertising & Marketing, Brands, Food & drink, Regulatory | No Comments »
Tuesday, June 28th, 2011
Most young people are bailed while they await criminal trial. However, those who are not are remanded in custody, leading to an anomaly whereby 17-year-olds are effectively treated like adults. The government introduced the Sentencing and Legal Aid Bill to parliament on Wednesday, which proposes that local authorities will face financial incentives to keep young offenders out of custody.
At the same time the Office of the Children’s Commissioner has published a report into the rights and emotional wellbeing of children in custody. It makes 19 recommendations for government including: children to be placed in units of no more than 150; small child-staff ratios; and all children to have a health screening assessment when they are placed in custody.
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
VN:F [1.9.14_1148]
Rating: 0.0/10 (0 votes cast)
Tags: children in custody, parliament, Sentencing and Legal Bill Act, young offenders
Posted in Local Authorities, Social Care | No Comments »
Friday, June 24th, 2011
The Government has issued its second consultation on its ‘Patent Box’ scheme which aims to cut the tax rate on profits generated from patents held by UK businesses to 10%.
Qualifying patents are patents granted by the UK Intellectual Property Office and the European Patent Office only. However the scheme will apply to worldwide income earned by UK businesses as well as income from the sale of qualifying patents.
The Government has acknowledged that its initial proposal that the Patent Box would only apply to all qualifying patents first commercialised after 29 November 2010 is not a workable option and has proposed as an alternative phased in transition which extends the benefits of the scheme to all qualifying patents.
These proposals are encouraging but there are still some issues around how the profits attributable to qualifying patents will be calculated. UK organisations must review the proposals carefully within the context of their own business and feedback any issues before the deadline of 2 September 2011.
Posted by Sara McNeill, who specialises in non-contentious intellectual property matters, including licensing, franchise, collaboration and development arrangements and IP audits and strategy; experienced in drafting and advising on commercial agreements.
Sara McNeill
0121 237 3930
smcneill@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 0.0/10 (0 votes cast)
Tags: European patent Office, Patent box, Patents, UK businesses, UK Intellectual Property Office
Posted in Intellectual Property | No Comments »
Friday, June 24th, 2011
The National Policing Improvement Agency has launched a national database which will allow law enforcement agencies to share locally held information nationally.
It was recommended by Lord Bichard as part of his 2004 enquiry into the Soham murders by Ian Huntley and its creation represents a further step forward for safeguarding children and vulnerable adults.
In his report, Bichard highlighted the need for centralised, accessible data – eight separate forces held key information about Huntley but it was not pieced together.
The database does not hold new information – all it does is ensure all law enforcement agencies have access to it, not just those local to where the information originated. All forces will now be on an equal footing and agencies including the Child Exploitation and Online Protection centre and the Serious Organised Crime Agency can access this ‘soft information’.
The Independent Safeguarding Authority helps prevent unsuitable people from working with children and vulnerable adults, the new database will add an extra layer of protection to this system.
Posted by Dai Durbridge, who specialises safeguarding of children and vulnerable adults in education, social care and health settings; defending claims against education, social care and health providers.
Dai Durbridge
0115 976 6578
ddurbridge@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 6.0/10 (2 votes cast)
Tags: child protection, national database, safeguarding, The National Policing Improvement Agency, vulnerable adults
Posted in Social Care | No Comments »
Friday, June 24th, 2011
Science has long grappled with the problem of three buses coming at once. Amazingly, the new PCC rules provide a solution.
Temple Island (TI) owns the copyright in a photograph of a bus near Westminster and is suing New English Teas (NET) for using a similar photograph.
In court, TI applied to amend their claim to refer to another photograph which they said was even more similar to NET’s photograph, claiming it could have been ‘clandestinely’ or ‘subconsciously’ copied .
The court applied the cost-benefit test from the Civil Procedure Rules governing the Patents County Court. This says that material will only be admitted if the court is satisfied that the value of material in resolving issues justifies the cost of dealing with it.
The judge said that allowing the amendment would introduce a jungle of issues into an otherwise straightforward matter and would not help the Claimant’s case – so the amendment was refused.
Litigants will be pleased to see active case management which narrows issues and save costs.
Posted by Giles Parsons, who specialises in intellectual property agreements and disputes relating to patents, copyright, trade marks, designs, as well as domain name disputes and reputation management.
Giles Parsons
0121 237 4557
gparsons@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 8.0/10 (1 vote cast)
Tags: civil procedure rules, copyright, New English Teas, patents county court, Temple Island
Posted in Intellectual Property | No Comments »
Friday, June 24th, 2011
Richard O’Dwyer, a 23 year old computer science student, faces extradition proceedings at the hands of US Immigration and Customs Enforcement (ICE) in relation to allegations of copyright infringement. Mr O’Dwyer is accused of creating and running a website which allowed users to view and download copyrighted material.
Given that the website was created and hosted in the UK it seems strange that ICE is so keen for Mr Dwyer to be charged in the US. The findings of HHJ Ticehurst in the TV-Links case back in February 2010 may have provided Mr O’Dwyer with a defence in the UK, whereas charges in the US legal system may be much more difficult to defend, particularly given the lack of state legal aid.
Given the furore over the UK’s extradition rules resulting from the US’ attempts to extradite hacker Gary McKinnon it will be interesting to see the approach taken by the UK courts in this case, which appears to relate to considerably less serious allegations.
Alex Kynoch
0115 976 6528
akynoch@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 9.0/10 (1 vote cast)
Tags: copyright, copyright infringement, extradition proceedings, Gary McKinnon, HHJ Ticehurst, Richard O'Dwyer
Posted in Intellectual Property | No Comments »
Friday, June 24th, 2011
Over eight years ago I acted on behalf of one of the local authorities involved in the tragic death of Victoria Climbie.
A public enquiry followed, and Lord Laming identified 12 key occasions when the relevant services had opportunity to intervene in Victoria’s life. He went on to say that “… There was plenty of evidence to show that scarce resources were not being put to good use.”
I was therefore disappointed, but not surprised, to read the news report of the review by Wolverhampton Safeguarding Children Board.
It is tough to deliver effective child protection services at times of limited resources, and my heart goes out to the professionals involved in this case.
It goes to show however that in this context, there is a danger that the same problems will arise over and over again. In this case, as in Victoria Climbie’s case, the problems were fundamental; poor record-keeping, ineffective inter-agency information sharing, and key decision-making at too low a level.
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
VN:F [1.9.14_1148]
Rating: 0.0/10 (0 votes cast)
Tags: child protection, Lard Laming, safeguarding, Victoria Climbie, Wolverhampton Safeguarding Children Board
Posted in Local Authorities, Social Care | No Comments »
Thursday, June 23rd, 2011
A legal loophole that could allow those who physically abuse children or vulnerable adults to escape justice is to be closed.
Sometimes a child or vulnerable adult is harmed at home, and it cannot be proved which of the adults living at the home actually perpetrated the harm. This problem was addressed to an extent in 2004. The Domestic Violence, Crime and Victims Act created the offence of ‘causing or allowing the death of a child or a vulnerable person’. Baby P’s mother, boyfriend and lodger were all successfully convicted under this act.
The proposal is now to extend this offence to cover serious physical harm. The CPS supports this. It believes many such cases currently go unprosecuted.
A Private Members Bill has received the Government’s backing, and will surely gain support from all quarters. However it will be more important to monitor how many prosecutions follow. The statute book is full of offences which are never used. Let us hope this does not become one of them.
Laura Richards
0115 976 6249
lrichards@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 10.0/10 (1 vote cast)
Tags: child abuse, CPS, private members bill, the domestic violence crime and victims act, vulnerable adults
Posted in Social Care | No Comments »
Thursday, June 23rd, 2011
A paediatric cardiologist facing allegations of sexual abuse has been successful in stopping the General Medical Council using hearsay evidence in disciplinary proceedings. The allegations relate to when he worked in Kenya. A key witness lived in Kenya, and while he was willing to travel to the disciplinary hearings, the GMC decided that the risk to the individual flowing from public exposure in homosexual activity outweighed the benefit of his personal attendance.
The High Court felt this decision was irrational. The stakes could not be higher for the cardiologist, both personally and professionally, and it was essential that he was given the opportunity to cross-examine the witness.
This decision is likely to be very influential in future disciplinary proceedings. It shows that in cases where sexual abuse is alleged, it is very important to allow the alleged perpetrator to challenge the allegations. While disciplinary proceedings tend not to have the formality or consequences of court action, nevertheless similar procedural safeguards must apply.
Laura Richards
0115 976 6249
lrichards@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 10.0/10 (1 vote cast)
Tags: disciplinary, General Medical Council, High Court, sexual abuse
Posted in Employment, Social Care | No Comments »
Thursday, June 23rd, 2011
The number of parents appealing primary school admission decisions in England has risen year on year for the last five years with 42,000 families challenging decisions in 2009-2010. The average class sizes for five to seven year olds has also risen and unless more places are created these figures are likely to increase with the rising population.
Lambeth Council have announced that they cannot guarantee a primary school place for every child by 2015 whilst Jesse Gray Primary School in Nottinghamshire are to build an extra classroom to accommodate an additional 30 pupils who had originally been told that they did not have a place at the school.
With nearly 10,000 pupils being taught in classes unlawfully above the limit in January 2011, infant class size legislation has been gradually eroded over the years. This is set to continue with the draft admissions code allowing the infant class size limit of 30 to be exceeded in circumstances such as multiple-birth siblings and children of armed forces personnel.
Hannah Bramhall
0121 237 4563
hbramhall@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 0.0/10 (0 votes cast)
Tags: admissions code, infant class size legislation, Jesse Gray primary School, primary school admissions
Posted in Education, Local Authorities | No Comments »
Wednesday, June 22nd, 2011
A rather robust judgment has been given in the High Court on the scope of the court to make costs orders against non-parties.
In a piece of litigation where Judgment had been given five years earlier, the parties were now embroiled in a dispute over the fact that several of the defendants who were shareholders in the first defendant funded that defence and as to how far they should now fund the costs of the successful claimant.
Insofar as four of the defendants were concerned, their involvement in the action was “open and honest”. Not only did they fund the litigation but they also had an “interest and control” of the litigation. As a result they had to take the financial consequences of that and bear the costs jointly and severally.
Posted by Nichola Evans, who specialises in professional indemnity work , directors and officers, legal expenses insurance, conditional fee agreements and after the event insurance and commercial litigation.
Nichola Evans
0207 337 1019
nevans@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 10.0/10 (1 vote cast)
Tags: dispute, High Court, litigation
Posted in Litigation | No Comments »
Wednesday, June 22nd, 2011
A woman who was left wheelchair-bound after sliding off a banister at a local pub has lost her multi-million pound compensation claim.
In Geary v Wetherspoon the court considered whether the pub could be held liable as the claimant had voluntarily assumed the obvious risk of sliding down the banister.
The pub had obtained listed building consent from the local authority to refurbish the premises which had a large open staircase with banisters each side which were below the minimum height allowed under building regulations at the time.
The Court found that because the claimant willingly accepted this risk, the principle of voluntary assumption of risk was fatal to her claim and that the pub owed her no duty to protect her from such an obvious and inherent risk.
This was without doubt the right decision but it is also a warning to premises to stay alert to the potential dangers and risks of personal injury liability.
Posted by Jonathan Cook, who specialises in defendant public liability work including employers’, occupiers’ and highways liability cases from initial instruction to trial. Including small claims, fast and multi track work.
Jonathan Cook
0115 976 6150
jcook@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 0.0/10 (0 votes cast)
Tags: compensation claims, Geary v Wetherspoon, personal injury
Posted in Employers & Public Liability, Insurance | No Comments »
