Archive for July, 2011
Friday, July 29th, 2011
In order to determine whether an individual is an employee or self-employed contractor it is necessary to look at what both parties agreed. This is typically reflected in the written terms of a contract, but may not be.
In Autoclenz Ltd v Belcher, 20 valeters described themselves as self-employed, paid their own tax, purchased their own insurance, uniforms and materials, and signed contracts which said they could choose when to attend work and send along a substitute worker. In fact, it was always intended that they would have to attend work and undertake that work themselves; the business would not have operated otherwise. The Supreme Court held that the valeters showed that the written agreement between the parties entered into was not reflected in the terms. So the true relationship was that of an employer and employee.
Previously, as long as the written contract is not a ‘sham’, (which was a high threshold test), the written terms prevailed. Now, this approach is too narrow. Employers should now bear in mind that a skilfully drafted written contract (which this one was) designed to make someone a contractor not an employee, will be disregarded if there is evidence (as there was here) that a different agreement was actually reached.
Hayley Roberts
0115 908 4862
hroberts@brownejacobson.com
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Rating: 9.0/10 (1 vote cast)
Tags: Autoclenz Ltd v Belcher, contracts, employment, self-employed contractors, Supreme Court
Posted in Employment | No Comments »
Friday, July 29th, 2011
Yesterday the Business Secretary Vince Cable announced proposals in relation to the first results from the Red Tape Challenge. The Government plans to scrap or simplify around 160 out of the 257 regulations reviewed in relation to retail firms.
The proposals include:
- removing the requirement of alcohol licences to sell chocolate liqueurs
- reducing the age limit to buy Christmas crackers from 16 to 12
- removing rules relating to the safety of pencils, prams and hood cords
- removing various pieces of antiquated legislation
- removing various specific burdens identified by businesses such as the requirement on retailers to notify TV Licensing about TV sales
The Governments efforts to reduce the regulatory burden should be applauded. However a lot of the changes announced are relatively minor and will have little tangible impact on many firms. This is not an invitation to businesses to be any less vigilant in their regulatory compliance.
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
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Rating: 10.0/10 (1 vote cast)
Tags: government, Red Tape Challenge, regulations, Retail, Vince Cable
Posted in Brands, Regulatory, Retail | No Comments »
Friday, July 29th, 2011
The Department for Education (“DfE”) yesterday published statistics for 2009/2010 in relation to the number of pupil exclusions. The statistics show that 5,740 pupils were excluded permanently from primary, secondary and special schools during this period with there being as many as 331,380 fixed period exclusions. The DfE calculate that 900 children a day are suspended from school for abuse and assault.
The Coalition government has pledged to improve behaviour and academic standards and in response to the statistics, Nick Gibb has expressed concern that weak discipline remains a significant problem in schools. However, in light of the Education Bill, which will make it easier for head teachers to exclude disruptive students and give teachers increased powers to search students, we are likely to see a spike in these statistics come 2011/2012.
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
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Rating: 9.0/10 (1 vote cast)
Tags: Department for Education, DFE, Education, education bill, government, Nick Gibb, pupil exclusions, schools, teachers
Posted in Education | No Comments »
Thursday, July 28th, 2011
A prop designer engaged by Lucasfilm to manufacture Stormtrooper helmets for the first Star Wars film has recently won his copyright battle to continue selling replicas in the UK.
The first issue addressed by the Supreme Court was to confirm that the Stormtrooper helmet was not a “sculpture” and therefore not an “artistic work”. Under English law, the helmets were therefore protected by design right (which has a shorter term of protection) and not by copyright.
The second issue was whether US copyright could be enforced in the English courts. Overturning the Court of Appeal’s finding on this issue, the Supreme Court held that it could. In a world of prolific cross-border trade and e-commerce this has to be the right decision, giving rights holders increased protection against international piracy.
Posted by Ryan Harrison, who specialises in intellectual property agreements and disputes, licensing, commercial contracts, and commercial and intellectual property issues arising from M & As and disposals.
Ryan Harrison
0121 237 3950
rharrison@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: copyright, Court of Appeal, designs, international piracy, jurisdiction, Lucasfilm, Star Wars, stormtrooper helmets, Supreme Court
Posted in Intellectual Property | No Comments »
Thursday, July 28th, 2011
The BIS Committee tasked with scrutinising the draft Groceries Code Adjudicator Bill today published its report “Time to bring in the referee?”. The report confirms the need for an Adjudicator but suggests various changes to the Bill, namely:
- the power to impose fines from the outset, as opposed to having the power only to “name and shame”
- allowing investigations to be launched following information from indirect suppliers and trade associations and not just that from direct suppliers and publicly available information
The proposals to “beef up” the legislation have been welcomed by some, including the farming community however the British Retail Consortium has expressed concerns over the costs that may be caused to retailers having to respond to anonymised complaints, and argues for strict guidance. The saga continues and it is likely to be 2013 before an Adjudicator is finally in place.
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
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Rating: 0.0/10 (0 votes cast)
Tags: British Retain Consortium, farming, Groceries Code Adjudicator Bill, legislation, retailers, time to bring in the referee, trade associations
Posted in Regulatory, Retail | No Comments »
Wednesday, July 27th, 2011
Following the abolition of the General Teaching Council for England, (GTCE), a consultation document detailing proposed changes to the teacher disciplinary and induction regulations have been released.
As well as dispensing with a register for teachers, another of the proposed features is for employers to decide which cases of ‘serious misconduct’ to refer to the Secretary of State. It is proposed that a new teaching agency will act on behalf of the Secretary of State to undertake the day to day administration of the regulatory processes.
At present all dismissals and issues of misconduct are referred up to the GTCE, who then decide what action to take. If the proposals go through, anything less than the referred cases of ‘serious misconduct’ will be dealt with by the schools themselves. Schools will undoubtedly need guidance on what cases should be referred and how to manage the cases they will be expected to deal with on their own turf.
Hayley Roberts
0115 908 4862
hroberts@brownejacobson.com
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Rating: 9.0/10 (1 vote cast)
Tags: consultation, employment, GTCE, Secretary of State, teacher disciplinary and induction regulations, teachers, teaching agency
Posted in Education, Employment | No Comments »
Wednesday, July 27th, 2011
Today sees the launch of a consultation on changes to the inspection of local authority children’s services. Ofsted’s announcement flags the “No Notice” element of the scheme and reports that it is proposed inspection will include direct observation of services in action, including interactions with children and families.
Inspection will also consider whether the quality of early help could have prevented the child from entering the child protection system in the first place and the impact of the failure to provide such help might have had on the child.
It doesn’t take much to work out what triggers have prompted these developments, which, it is proposed, will be implemented May 2012. The consultation invites comment, but the closing date for this is very soon; 30 September 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
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Rating: 10.0/10 (1 vote cast)
Tags: child protection system, children's services, local authority, Ofsted, Social Care
Posted in Local Authorities, Social Care | No Comments »
Wednesday, July 27th, 2011
The cosmetic giant L’Oreal has been ordered by the Advertising Standards Authority to stop using pictures of Julia Roberts and model Christy Turlington upholding a complaint that the images were overly airbrushed.
The complaint came from Lib Dem MP Jo Swinson, a long standing campaigner against unrealistic images of women in advertising. Swinson is claiming the decision as a victory stating that “this ban sends a powerful message to advertisers – let’s get back to reality”, and rightly so. It is perfectly legitimate for advertisers to show their products in the best possible light, however they should not cross the line of becoming misleading.
The ASA has shown its hand in this case and arguably cast doubt on the products in question. Advertisers need to be careful to show the true effects of their products or risk consumers questioning whether they are as good as they first appear.
Dmitrije Sirovica
0115 976 6243
dsirovica@brownejacobson.com
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Rating: 7.0/10 (3 votes cast)
Tags: advertisers, advertising, advertising standards authority, airbrushed images, ASA, Christy Turlington, Jo Swinson, Julia Roberts, L'Oreal
Posted in Advertising & Marketing, Brands | No Comments »
Wednesday, July 27th, 2011
An army officer’s claim for damages for personal injuries sustained during a formal adventurous training exercise has been dismissed by the court.
As the leaders of the group crossed a rugged terrace there was a rock fall from the area where they had reached. One of the group was struck on the head by a rock and suffered skull fractures resulting in a severe traumatic brain injury.
The court ruled there had been no breach of duty of care by the leaders. The leaders held appropriate qualifications to lead the climb and had undertaken proper risk assessments and continuous reviews. It was impossible to say what triggered the rock fall and a fuller reconnaissance of the route would not have led to any different course of action.
This tragic accident demonstrates that many hazardous activities carry inherent risks which cannot be negated completely and provides a good indication as to the extent of planning organisers should have in order to satisfy their obligations.
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
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Rating: 0.0/10 (0 votes cast)
Tags: Claims, insurance, negligence, personal injury claims, risk assessments
Posted in Employers & Public Liability, Insurance | No Comments »
Wednesday, July 27th, 2011
“It makes no sense to think that an insured may have become time-barred in a claim … before … he has any cause of action to bring it”. Sounds obvious but that wasn’t the High Court’s approach when it upheld a time-bar clause in McILroy. The public liability policy provided that the insured must refer any dispute about the insurer’s “liability in respect of a claim” to arbitration within 9 months or the claim was deemed abandoned. At first instance, the insurer successfully relied on the fact that proceedings were not issued until after 9 months from its refusal to indemnify for breaches of condition precedent.
The Court of Appeal has now overturned that decision because the High Court ignored the long-standing principle that liability under an indemnity policy is not triggered until the existence and extent of liability to the third party is established (Post Office v Norwich Union (1967)).
Therefore, in dispute resolution clauses, “claim” means “crystallised claim”.
Posted by Jonathan Newbold, who specialises in professional negligence, financial services and commercial dispute resolution; advises insurers on policy wording and coverage matters.
Jonathan Newbold
0115 976 6581
jnewbold@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: Claims, Court of Appeal, crystallised claim, High Court, insurance, McIlroy, Post Office v Norwich Union (1967), public liability policy, time-bar clause
Posted in Insurance, Professional Indemnity | No Comments »
Wednesday, July 27th, 2011
Recent changes in the student immigration points-based system have caused controversy in the education sector and MPs are accusing the government of rushing plans to curb student visas, saying it could cost the economy £3.4bn.
Tighter restrictions for student visa applicants already mean tougher English language requirements and students at public sector FE colleges are now limited to 10 hours of work per week during term time. Students at privately funded FE colleges or language schools are not permitted to work at any time during their studies.
Further changes due to take effect from April 2012 include:
- courses offering work placements will have to have a study:work ratio of 66:33 (except at HE institutions)
- Tier 1 Post Study Work Route will be closed (but switching to Tier 2 will be allowed in certain circumstances)
The concern for the education sector is that the tighter restrictions could mean that less international students apply to study in the UK.
Posted by Dawn Lobley, who specialises in employment law, acting for clients on matters including unfair dismissal, redundancy, restructure, TUPE, contractual issues and discrimination, plus immigration and data protection.
Dawn Lobley
0115 976 6185
dlobley@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: further education, student immigration points, student visas
Posted in Education | No Comments »
Tuesday, July 26th, 2011
The University and College Union (UCU) has threatened legal action if the Institute for Learning (IfL) are to go ahead with proposed plans to lapse membership for those who refuse to pay a new £38 membership fee. Under current regulations, all Further Education teachers must be members of the IfL, but the UCU contends that banning teachers from the classroom is not only potentially unlawful, but also “wholly unreasonable and irrational”.
The outcome of this dispute is unclear as both sides have begun to gain significant support from other parties. The UCU gained a considerable boost when the Worker’s Education Association also began boycotting the IfL, and the IfL in turn was strengthened by comments from skills minister John Haynes who stated that he had no power to stop the IfL setting their own membership fee.
At a time of vast public sector cuts it is odd that the IfL have put up so much resistance to the UCU’s comments, and the looming crisis begs the question: are we on the verge of seeing huge educational deregulation?
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
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Rating: 0.0/10 (0 votes cast)
Tags: further education, institute for learning, university and college union
Posted in Education, Further Education | No Comments »
Monday, July 25th, 2011
In its eleventh programme of reform, the Law Commission has announced it will consider reforming the laws relating to groundless threats.
Currently, groundless threats of trade mark, design or patent litigation can be causes of action themselves.
Sabre rattling should obviously be discouraged, particularly as just the threat of infringement can be enough to make customers defect to rightsholders to avoid the threat of litigation.
But businesses harmed by allegations of infringement are often reluctant to bring a claim for groundless threats, particularly as they could be ordered to provide security for the rightsholder’s costs. When claims for groundless threats are brought, the costs can be disproportionate to the damage done by a threat. And in practice, the threats provisions can cause costs to increase, because rather than encouraging a litigant to set out its case clearly (which could result in an early settlement), litigants may seek to artificially narrow their claim to avoid threats actions.
So whilst the rationale behind the threats provisions is admirable, in practice they do not function effectively. Part of the solution may be amendment to the Civil Procedure Rules to allow declarations that threats are unjustified to be brought cheaply and quickly.
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
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Rating: 0.0/10 (0 votes cast)
Tags: designs, groundless threats, Intellectual Property, Law Commission, Patents, trade marks
Posted in Intellectual Property | No Comments »
Monday, July 25th, 2011
The dispute between broadcasters ITV, Channel 4 and Five and online streaming company TV Catchup has been referred to the European Court of Justice (ECJ).
TVCatchup provides a quasi-live service, relaying free-to-air TV channels to UK members. ITV (etc) claimed that this infringed their copyright by “communicating to the public”, by electronic transmission, their films and broadcasts. TVCatchup argued that the relevant legislation had been amended improperly and was therefore invalid.
The judge provisionally found that the transmissions were “communicating to the public”, although he thought that they only reproduced a substantial part of ITV’s films, not of their broadcasts; also, for some reproductions TVCatchup may have a defence of “incidental” copying. However, he felt these issues needed clarification from the ECJ.
A final judgment may be years away allowing TVCatchup in the meantime to continue profiting from its services and must surely be a bitter pill to swallow for the broadcasters.
Laura Phillips
0115 976 6182
lphillips@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: copyright, copyright infringement, incidental copying, Intellectual Property, online streaming, TV Catchup
Posted in Intellectual Property | No Comments »
Friday, July 22nd, 2011
The EAT has decided that there was no TUPE transfer where residents of a care home were discharged home from the care of an NHS Trust, and who received support from two independent service providers who help residents live independently in their own homes. This contrasted with the care provided previously by the trust, where tasks were carried out on the residents’ behalf.
The EAT held that there could be no relevant transfer or service provision change under TUPE because the economic entity did not retain its identity after the transfer. There was a move from ‘institution’ to home and from ‘management’ to ‘support’ so that the services provided to the residents were not ‘fundamentally or essentially the same’ after the change in provider.
But where exactly is the distinction to be drawn between those care services provided before and after the transfer, so as to prevent TUPE applying? In a different factual scenario, that might be a difficult question to answer.
Hayley Roberts
0115 908 4862
hroberts@brownejacobson.com
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Rating: 1.0/10 (1 vote cast)
Tags: care homes, care services, EAT, employment, NHS trusts, tupe
Posted in Employment, NHS, Social Care | No Comments »
Tuesday, July 19th, 2011
Caroline Spelman, the Environment Secretary, has announced today that the government will back a widespread cull of badgers in south-west England, to help fight bovine TB.
The government knows that it is certain to face legal challenges by those who insist that the scientific evidence suggests that culling badgers would not reduce levels of bovine TB, and could actually make it worse.
Alternative approaches to a cull are the increase of TB testing on farms and more restrictions on herd movements.
A similar badger cull was approved in Wales but the decision was overturned in the High Court, to examine the science behind the issue.
Bovine TB costs the UK economy about £100m per year. It is clear something must be done, the question is what?
Posted by Westley Laird, who specialises in environmental law, specifically advising nature conservation, local authority and corporate clients and administrative law, with a focus on judicial review.
Westley Laird
0115 976 6273
wlaird@brownejacobson.com
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Rating: 4.5/10 (2 votes cast)
Tags: badger cull, bovine TB, caroline spelman, environment, environment secretary
Posted in Waste & Environmental | No Comments »
Tuesday, July 19th, 2011
The government announced back in October that the Education Maintenance Allowance (EMA) which provided means-tested grants of up to £30 a week to help young people stay on at school or college was to be scrapped. The £180 million fund which is to replace the scheme would instead be allocated by colleges at their own discretion.
An MP select committee, whilst recognising the need to scrap the EMA, has criticised the execution of its replacement. Colleges did not receive their allocations until June which is too late for this year’s cohort of 15-16 year olds starting courses in September. Most would have submitted their applications well in advance.
The new scheme has also come in for criticism and is likely to result in wide ranging inconsistencies. Savvy colleges may be able to use the fund to attract more students defeating the overall aim of the fund, that is to support those most in need. This is not likely to be the last we hear of the new bursary fund.
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
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Rating: 0.0/10 (0 votes cast)
Tags: Education, education maintenance allowance, EMA
Posted in Education | No Comments »
Monday, July 18th, 2011
The Learning and Skills Improvement Service (LSIS) have commissioned a report from RSA Public Services Hub considering how the FE sector may look in 2020.
The new found freedoms the sector currently faces come at a time of increased spending cuts. With this uncertainty the LSIS is concerned that there is a real risk that the sector could stagnate and fail to compete if it continues to focus on the narrow “delivery of qualifications”.
The report believes the sector needs to seize its freedoms and become incubators of social value and hubs for service integration. Instead of a top-down approach, the LSIS is encouraging colleges to take a more collaborative approach involving the service and the user with social productivity at its heart.
What is clear is that the sector is at a crossroads and it is for colleges’ themselves to determine which route they would like to take.
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
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Rating: 10.0/10 (1 vote cast)
Tags: further education sector, LSIS, report, RSA public services hub, spending cuts, The learning and skills improvement service
Posted in Education, Further Education | No Comments »
Friday, July 15th, 2011
Employers often approach us looking for ways to reduce their litigation costs. One of the ways in which we do this is to get the most frivolous claims struck out, thus negating the need for a full hearing.
In the future this may be more difficult due to the recent case of Reilly v Tayside Public Transport. In this case the EAT suggested that an employment judge should not strike out unfair dismissal claims as having no reasonable prospect of success, where the principal issue is whether the dismissal fell within the range of reasonable responses.
If judges require more cases to go to a full hearing then there will be an associated increase in costs for employers. With the current financial pressures on businesses, especially in the public sector, it will be important to see how tribunals react to the judgement.
Ben Standing
0115 976 6528
bstanding@brownejacobson.com
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Rating: 7.0/10 (1 vote cast)
Tags: EAT, litigation, Reilly v Tayside Public Transport, tribunals, unfair dismissal claims
Posted in Employment | No Comments »
Wednesday, July 13th, 2011
The Department for Education announced on Tuesday that they are to reduce the threshold at which a pupil is defined as “persistently absent” from 20% to 15% in an attempt to solve truancy in schools. This reduction in the threshold is set to incorporate an additional 246,000 pupils but the move has been criticised by unions for failing to tackle the root cause of truancy.
On a practical level, the reduction in the threshold will impact on Ofsted’s evaluation of pupil attendance, and in some cases this could result in a lower grade. Ofsted has advised that they will explore ways of taking into account the lower threshold within the new framework expected early next year.
The government’s attempts to tackle truancy are unlikely to stop here. Nick Gibb has advised that in the coming months stronger powers for schools to deal with truancy will be announced. It remains to be seen whether these changes will actually deter persistent absences in schools.
Hannah Bramhall
0121 237 4563
hbramhall@brownejacobson.com
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Rating: 8.0/10 (2 votes cast)
Tags: Department for Education, Education, Ofsted, persistent absence, schools, truancy
Posted in Education | No Comments »
