law, less ordinary - legal opinions from Browne Jacobson

Not so simples?

Michelle — Fri, 18 May 2012 12:57:18 +0000

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

TUPE – Organised Grouping of Employees

Michelle — Fri, 18 May 2012 12:34:29 +0000

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

Diabetes Patients at Risk from Medications Mistakes

Michelle — Thu, 17 May 2012 14:20:35 +0000

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

Data Protection in Social Care – £70K says you can’t do right for doing wrong!

Michelle — Thu, 17 May 2012 10:34:59 +0000

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

Communications Data Bill

Michelle — Wed, 16 May 2012 10:31:18 +0000

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

Mobile F*lters

Michelle — Wed, 16 May 2012 10:12:35 +0000

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

Power shifts to parents over use of pupils’ biometric data

Michelle — Tue, 15 May 2012 14:14:40 +0000

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

Monitoring Schools Spending- Is it robust enough?

Michelle — Tue, 15 May 2012 13:59:16 +0000

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

£10,000 for best use of Pupil Premium

Michelle — Tue, 15 May 2012 13:47:13 +0000

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

Special Educational Needs – the shake-up (and spin) begins

Michelle — Tue, 15 May 2012 11:41:08 +0000

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

A new presumption?

Michelle — Mon, 14 May 2012 14:12:34 +0000

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

The Queen’s speech – key points for employers

Michelle — Mon, 14 May 2012 09:34:18 +0000

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

‘Under Pressure’ – Queen’s speech response

Michelle — Fri, 11 May 2012 14:31:21 +0000

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

Personal Service Companies and Income Tax: New HMRC “IR35” tests

Michelle — Fri, 11 May 2012 14:05:38 +0000

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

Queen confirms long-awaited shake-up of SEN

Michelle — Thu, 10 May 2012 13:11:44 +0000

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.

Hayley Roberts
0115 908 4862
hroberts@brownejacobson.com

Hull City risk legal action over sacking of Barmby

Michelle — Thu, 10 May 2012 11:22:04 +0000

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

Teacher salaries to ‘rocket off into the stratosphere’?

Michelle — Thu, 10 May 2012 10:41:08 +0000

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

Commission launches a major initiative to modernise state aid control

Michelle — Thu, 10 May 2012 07:51:10 +0000

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

Government errors cause budget problems for academy schools

Michelle — Wed, 09 May 2012 13:40:19 +0000

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

Interim costs success for Specsavers

Michelle — Wed, 09 May 2012 13:21:36 +0000

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

Royal Assent for criminal offence of squatting in a residential property

Michelle — Tue, 08 May 2012 13:57:37 +0000

1 May 2012 marked the day in which the Legal Aid, Sentencing and Punishment of Offenders Act 2012 received Royal Assent. Section 144 of the Act has created a new offence of squatting in a residential building.

A person commits an offence if:
1) They are in a residential building as a trespasser, having entered it as a trespasser;
2) Knows or ought to know that he or she is a trespasser; and
3) Is living in the building or intends to live there for any period.

An offence will not be committed by a person “holding over” after the end of a lease or licence.
The new offence could see squatters face up to 6 months imprisonment or up to a £5,000 fine.
It is inevitable that the offence will be up for debate as to what actions constitute the offence and more importantly, the cost implications the law will have on taxpayers… watch this space!

Posted by Kate Andrews, who specialises in advisory and dispute resolution relating to contentious property litigation; landlord and tenant disputes, contractual and development disputes, also property insolvency and rights of light issues

Kate Andrews
0207 337 1024
kandrews@brownejacobson.com

Court of Protection in first ruling on living will

Michelle — Thu, 03 May 2012 13:48:41 +0000

The Court of Protection, in the first decision of its kind, has ruled an advance decision withdrawing life sustaining treatment under the Mental Capacity Act 2005 as valid.

After a two-day hearing the Court of Protection ruled that the living will of “XB”, who suffered from motor neurone disease, was not subject to a time limit. Mrs Justice Theis determined that prior to losing capacity, XB had made a valid decision to stop artificial feeding and ventilation should he lose capacity in the future.

In November 2011 XB communicated his advance decision to family members and witnesses using eye movements. Mrs Justice Theis, when giving her judgment, emphasised the need for clear language when making an advance decision and also stressed that concerns regarding advance decisions should be investigated promptly with evidence being gathered quickly.

XB’s family will now decide when treatment should be withdrawn.

William Reynolds
0115 908 4850
wreynolds@brownejacobson.com

Jackson reform u-turn on mesothelioma claims

Michelle — Wed, 02 May 2012 08:54:18 +0000

The Legal Aid Sentencing and Punishment of Offenders Bill received Royal Assent on 1 May. Though provisions on legal aid have received the most attention during its passage through Parliament, the part dealing with civil litigation funding sets the stage for sweeping reforms expected in April 2013.

Headline measures are a ban on referral fees together with the ending of recovery of success fees and ATE premiums.

Despite frantic lobbying by some interest groups, Jackson’s proposals for reform of litigation funding have remained largely intact. A Government ‘climb-down’ which has resulted in the exclusion of mesotherlioma cases from the reforms affects a limited proportion of claims.

Reassurances given by the Government, in relation to the operation of QOCS for example, will be tested when the draft rules bringing the scheme into effect are published.

Posted by James Arrowsmith, who specialises in high value personal injury claims, extensive experience of claims relating to head injuries and serious bodily injury, psychiatric damage and injuries to children.

James Arrowsmith
0121 237 3981
jarrowsmith@brownejacobson.com

Leasing office equipment: no such thing as a free lunch

Michelle — Tue, 01 May 2012 10:42:33 +0000

Reports of schools entering poor value equipment leasing arrangements highlight an issue that is now more relevant than ever as academies take responsibility for their own contracts.

Many contract problems stem from unclear terms and conditions, such as complex cash-back arrangements provided by intermediaries (often agreed verbally with nothing in writing). This makes cash back arrangements difficult to pursue and can and has left schools on the hook for the full, often inflated charges. For example when the intermediary ceases trading, leaving the school unable to recover cash-back payments directly from the finance company.

Schools should compare the cost of purchasing the equipment from an independent supplier, and against more straightforward arrangements without cash-back. Particular care should always be taken over cash-back schemes and other complex proposals. It may in any event be a good time for schools – particularly academies directly responsible for these issues – to consider their approach to procuring private sector contracts.

Posted by Craig Elder, who specialises in project finance; Projects; commercial contracts ; waste and defence sectors; long term/complex service arrangements and public sector procurements.

Craig Elder
0115 976 6089
celder@brownejacobson.com

Salary boost for Academy Heads

Michelle — Mon, 30 Apr 2012 12:35:29 +0000

According to the Independent the Department for Education has revealed that academy heads are on average paid £6,000 more than their maintained school counterparts – £61,500 as opposed to £55,000.
With the freedoms that come with academy status (and heavily promoted by Government when encouraging schools to convert), one must expect the freedom to pay competitive rates to all staff to be utilised by many academies. In the TES Professor Howson of EDS put his views clearly on the general position: “whatever one thinks of politicians, it seems wrong that the head of any academy can expect to earn twice the salary of the shadow secretary of state for schools.”
Whether you share this view or not, expect to see more divided opinion as academies make the most of the freedoms given to them.

Posted by Dai Durbridge, who specialises in advising schools, academies and other education providers on all pastoral matters. Recognised leader in safeguarding law, with a specific interest in the vetting and barring scheme; also defends claims made against education, and social care providers.

Dai Durbridge
0115 976 6578
ddurbridge@brownejacobson.com

Ofsted vs. Teachers

Michelle — Mon, 30 Apr 2012 10:29:05 +0000

Ofsted has never been popular with teachers but in the current educational landscape they have an important role to play. Despite this, their reputation is continually challenged as Sir Michael Wilshaw appears in the press weekly with suggestions ranging from condemning poor teaching standards to increasing Ofsted’s role through “local bases”.

However, if Ofsted are hoping to increase their role in the current educational landscape undoubtedly they should look after the basics by getting the “inspection” aspect right.

A recent survey conducted by TES magazine produced hundreds of accounts of poor behaviour by visiting inspectors. From commenting that children are “too well-behaved” to observing that children fielding in a cricket match were “not moving around enough”, the stories are disheartening at best. This is just one more study that damages Ofsted’s reputation and will undoubtedly hit them hard. Before any further “groundbreaking” changes to the educational landscape are suggested it is clear that Ofsted need to start getting it right at the most basic level.

Lauren Millward
0115 908 4864
lmillward@brownejacobson.com

Pupil Referral Units- Academies

Michelle — Mon, 30 Apr 2012 09:59:28 +0000

The Government appears likely to grant the Education Secretary powers to allow him to direct failing Pupil Referral Units (PRU’s) to convert to academy status. The option of academy conversion will also be introduced for outstanding PRU’s in September.

Gove’s powers currently are limited to directing a local authority (LA) to close a failing PRU. The Government argues that under the proposals, conversion to academy status, and removal from LA control, will give failing PRU’s a chance to improve. The likely consequence being, increased competition between providers leading to improved services and increased numbers of PRU’s in any area, giving parents and schools greater choice around where best to send their child.

A recent report by government advisor, Charlie Taylor, suggests that PRU’s should only be run by a LA where the LA is “adding value”. It remains to be seen whether the changes will lead to greater autonomy, choice and competition between providers and overall improved services for vulnerable children.

Lauren Millward
0115 908 4864
lmillward@brownejacobson.com

Oliver slams Gove on academy meals

Michelle — Mon, 30 Apr 2012 08:54:38 +0000

A well known food campaigner has accused Michael Gove of lowering nutrition levels among pupils whilst allowing academies to profit through the sale of unhealthy snacks.
In an Observer interview Jamie Oliver has claimed that Gove is risking reversing the progress made over recent years in improving pupils’ diets, as academies can ignore nutrient-based standards introduced in 2008.
Oliver said he was “totally mystified” as to why headteachers of maintained schools have to abide by the national standards whilst headteachers of academies can ignore them.
Gove has insisted that academies should not observe the national rules because their headteachers can be trusted to deliver the best for their pupils.
Whilst DfE policy is very firmly in favour of allowing academies to have the freedoms to run school as they see fit, Oliver’s reputation for garnering public support may increase pressure for there to continue to be a nationwide policy on this issue.

Posted by Jamie Otter, who specialises in education law, including corporate governance, group structures, collaborative working and academy conversions.

Jamie Otter
0115 976 6237
jotter@brownejacobson.com

Free school model interested News International

Michelle — Fri, 27 Apr 2012 15:05:24 +0000

It has emerged from the Leveson Inquiry that News International were interested in setting up an academy to “create a lasting legacy in East London, through an academy school with a focus on media and technology.”
The Independent have reported that Rupert Murdoch told the inquiry that the state of British schools was a “disgrace”, describing educational standards as “a crime against the younger generation and we are determined to do something about it”.
The plans fell through as the DfE were not able to fund the proposal because of a “very tight” spending review, despite News International offering £2 million in sponsorship.
The Inquiry was told that News International had stipulated that it did not want to replace a failing local school, which is the DfE’s preferred model for academies. Within weeks News International had changed tack, instead wanting to establish a free school.
It remains to be seen whether News International will follow up on their interest given the current political landscape.

Posted by Jamie Otter, who specialises in education law, including corporate governance, group structures, collaborative working and academy conversions.

Jamie Otter
0115 976 6237
jotter@brownejacobson.com

Consumer Contracts and Unfair Terms: Review of Exempt Terms Announced

Michelle — Fri, 27 Apr 2012 11:30:44 +0000

In anticipation of the forthcoming Consumer Bill of rights, the Law Commission has announced that it will revisit its 2005 report “Unfair Terms in Contracts”, and in particular will be looking again at ‘exempt terms’.

Most terms in consumer contracts may be unenforceable if they are “unfair” but “exempt terms” cannot be reviewed for fairness since they relate to ‘core bargain’ of the contract. Since the report, exempt terms have come under the spotlight including in the case of Office of Fair Trading v Abbey National plc, where the Supreme Court’s decision conflicted with the Law Commission’s 2005 recommendations.

Depending on the Law Commission’s conclusions, contracts with consumers may be subject to more scrutinity on the basis of “fairness”, even core contractual terms. The Law Commission has its work cut out as it will need to ensure that any confirmation of the law is clear, compatible with European Law and preserves consumer rights under UCTA.

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

Stats support teacher anonymity

Michelle — Fri, 27 Apr 2012 11:14:57 +0000

The TES this week highlighted a recent government study into the nature of allegations made against teachers. Of the 2,827 allegations made in a 12-month period, 2% were malicious and a further 45% were unfounded or unsubstantiated.

With the right to anonymity set out in the Education Act 2011 due to come into force soon, it is of little surprise that the government has published a study supporting the need for such a right. However, holding out hope that this is the panacea that protects teachers might be going too far.

The right to anonymity will only apply where an allegation of a criminal offence has been made. The law will punish anyone who ‘publishes’ (this will include websites and social media) information that identifies the individual. What the law cannot do is stop parents and children talking about it or it spreading like wildfire around the local community. The Protection of Freedoms Bill looks to address the CRB point in the article, by changing the duty on police to only include information they “reasonably believe to be relevant”, but some are sceptical that this will lead to any noticeable change.

Dai Durbridge
0115 976 6578
ddurbridge@brownejacobson.com

Mandatory Retirement Policies Judged Acceptable – In Some Cases

Michelle — Fri, 27 Apr 2012 10:44:44 +0000

The Supreme Court’s judgment in Seldon v Clarkson Wright and Jakes concerns the scope for justifying a mandatory retirement age for partners. Unless justified, mandatory retirement would be direct discrimination because of age. Although Mr Seldon’s appeal was dismissed, this doesn’t give employers the green light to enforce retirement; employers still have to ensure that such a policy is ‘proportionate’. Mr Seldon’s case has been remitted to the Employment Tribunal to decide this.

The Court signalled that ‘succession planning’ (i.e. sharing employment opportunities fairly between generations) and limiting the need to expel partners by way of performance management were both legitimate aims which could justify mandatory retirement. Both of these aims have been accepted by the European Court as consistent with Council Directive 2000/78/EC.

The judgment balances the business needs against employee rights – precisely the intention of the Directive; but it does little to help employers know whether they can safely impose retirement ages.

Rachael Davey
0115 976 6219
rdavey@brownejacobson.com

Privileged Free Schools- too soon to say?

Michelle — Fri, 27 Apr 2012 10:06:35 +0000

Government data shows that ¾ of free schools have a lower proportion of deprived pupils, eligible for free school meals, than average. However, with only 24 free schools open, and some only catering for a very small number of pupils, is it too soon to make any judgement on the social impact based on this data?

One aim of the free school policy is to close the attainment gap between privileged and poorer students and raise standards across education. However, as free schools are established by parents and other groups to meet the needs of local communities and provide access to quality education in those communities, the social impact of the policy will depend on where free schools are established.

Free schools are still a relatively new concept. As more open and parents are made aware of this option, pupil numbers will increase. It is only at that point that a judgement can be made about the free school’s place in society.

Richard Freeth
0121 237 3961
rfreeth@brownejacobson.com

Manchester City’s “World Capital of Sport” nears approval

Michelle — Thu, 26 Apr 2012 13:24:55 +0000

Manchester City have applied for the closure of two streets as part of their plans for a £100m ‘world capital of sport’, which include a 7,000-capacity arena, an institute for sports medicine and a string of community sports facilities.
The application to close the roads was made under the Town and Country Planning Act and objectors have six weeks to raise any concerns.
The street closures come on the back of news that two businesses have refused to sell up despite Manchester Council issuing a compulsory purchase order. Although local press have reported that all parties may be close to an agreement, the dispute could lead to a public enquiry if no consensus has been reached.
Whilst the project is expected to create up to 160 construction jobs and 90 permanent posts, the parties will need to ensure that the rights of the local community are not unlawfully affected.

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

Will global investment trump Scotland’s green energy drive?

Michelle — Thu, 26 Apr 2012 12:02:44 +0000

US tycoon Donald Trump is strongly opposing plans for an offshore development of 11 wind turbines near the site of his £1billion development in Aberdeenshire.

Mr Trump says allowing the project to go ahead will turn the Scottish economy into a “third world wasteland that global investors will avoid” adding that the appearance of wind turbines will kill off the tourism industry.

In contrast, Scottish First Minister Alex Salmond is an advocate for offshore wind farms and believes the development will be worth £30billion of investment to Scotland and would create up to 28,000 Scottish jobs.

A decision by Scottish ministers is yet to be made but the fight may be fierce as Mr Trump’s organisation is prepared to spend £10million fighting the development. An inquiry into the development has already taken evidence from 30 witnesses and intends to publish its report in the coming months. It will then be clear who comes up trumps in this ongoing battle.

Fezil Veli
0115 976 6181
fveli@brownejacobson.com

First criminal charges filed for BP oil spill

Michelle — Thu, 26 Apr 2012 11:09:20 +0000

The first criminal charges relating to the Deepwater Horizon oil spill have been filed by the US justice department.

The Deepwater Horizon rig exploded on 20 April 2011 killing 11 people and resulted in more than 200 million gallons of crude oil spilling into the Gulf of Mexico.

Kurt Mix, a former BP engineer involved in efforts to cap the well has been arrested and faces 2 counts of obstruction of justice for allegedly destroying evidence requested by US authorities. The evidence, in the form of text messages to a supervisor, allegedly revealed that the company’s efforts to control the oil spill were failing and that the amount of oil spilling into the Gulf of Mexico was more than the company had reported to officials.

This represents the first criminal claim brought against any workers involved in the accident or its aftermath. If convicted Mr Mix could potentially face 20 years in prison and a fine of up to $250,000 (roughly £155,000) for each count.

Fezil Veli
0115 976 6181
fveli@brownejacobson.com

SFA penalties may not deter bidders

Michelle — Tue, 24 Apr 2012 10:07:44 +0000

The Scottish Football Association have banned Rangers from signing players for 12 months as a result of Rangers’ actions under the stewardship of Craig Whyte. The transfer embargo means they can only sign players under the age of 18 for the next year.
Whilst the transfer penalty will certainly affect Rangers’ salability by their administrators, it may not deter American bidder Bill Miller who had been expected to make a £11.2 million bid. Miller’s main concern was that Rangers would not have any further points penalties next season and their trophy haul would not be struck from the record. The SFA have pointedly stayed clear of imposing such sanctions.
Any new owner would also have to deal with the fact that most key players had a clause inserted allowing them to leave at a cut price when agreeing to take substantial wage cuts shortly after the onset of administration.

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

Concerns grow about aggressive security at Olympic games

Michelle — Tue, 24 Apr 2012 09:45:22 +0000

Following on from the granting of asbos against protestors concerns are growing about potentially over-aggressive security at the Olympic Games.

The Guardian has reported that two guards from the Olympic site’s security firm, G4S, attempted to clamp the hands of photographers who were filming the Olympic site, despite the footage being shot on public land.

The Guardian reported that one of the firm’s supervisors appeared not to know the difference between filming on public and private land, despite journalists being assured by the police that private security guards would be properly trained on photography laws.

G4S expressed concern that security checking areas were being filmed and whilst it is important to ensure that the Olympics pass safely without any security issues, organisers should be careful to ensure that the rights of those who wish to report the events or raise an issue about how the Games are being run are not unlawfully curtailed.

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

Two Thirds of Polled Parents Say They Want Their Parental Responsibilities Defined

Michelle — Tue, 24 Apr 2012 08:55:40 +0000

In a survey commissioned by Action for Children ¾ agreed there was no common understanding of what was meant by “good enough” parenting and 2/3rds felt the law was confusing.

Do we really need more “law on parenting”? The Children Act 1989 is sufficiently clear. It’s the practical application that makes the difference. Our experience suggests that where practitioners are unable, because of lack of resources, to provide support for families who are struggling to look after their children, a significant proportion become the subject of Care Proceedings.

Action for Children suggests courts should be able to order parents to undergo treatment, counselling or parenting courses. The questions arise; which courts? In which contexts? At who’s expense?

There are some great ideas here, but the amount of investment an overhaul of existing systems requires to implement it would be significant. Better to enable CYPDs to work with families at a much earlier stage so that they do not reach crisis.

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

Olympic ASBO issued

Michelle — Mon, 23 Apr 2012 14:09:29 +0000

It is believed that an interim antisocial behaviour order (asbo) given to a protester from London is the first pre-emptive Olympic asbo to prevent protests at the Games.
Simon Moore took part in a protest against the construction of the Olympic basketball arena, is subject to a court order banning him from approaching any Olympic venue, activity or official along with other restrictions .
The order effectively criminalises tresspass, which is generally seen as a civil matter.
Whilst the Metropolitan Police have not confirmed whether any similar orders have been applied for by the force, it is thought that such powers may be seen as a useful tool in controlling protests in the run up to the Olympic Games. It remains to be seen whether the granting of such orders will be challenged on the basis that the asbos do not sufficiently balance the need to manage a nuisance against the individual’s human rights.

Posted by Jamie Otter, who specialises in corporate finance, M&A, disposals, private equity, joint ventures and reconstructions.

Jamie Otter
0115 976 6237
jotter@brownejacobson.com

Football policing fees agreed after standoff

Michelle — Mon, 23 Apr 2012 13:44:03 +0000

Whilst the issue surrounding a dispute over the holding of a League Two game has been resolved, the matter highlights an area of increasing concern to football clubs.
Medway Council had issued a prohibition notice for Gillingham’s game against Swindon Town because the cost of policing could not be agreed. Kent Police had specific intelligence concerning the match and its fans and demanded that Gillingham meet the extra policing costs.
Football clubs are set to be hit with a potential rise in policing costs as the police are of the opinion that match day disorder is not restricted to stadiums and surrounding streets.
Whilst the issue raises interesting issues about economic duress and the extent which a public body charges must be reasonable, football clubs would be encouraged to agree the commercial terms with police at the beginning of each season when the costs of extra policing can be negotiated on a fairer playing field without the threat of a prohibition notice hanging over negotiations.

Posted by Jamie Otter, who specialises in corporate finance, M&A, disposals, private equity, joint ventures and reconstructions.

Jamie Otter
0115 976 6237
jotter@brownejacobson.com

Environment Agency consolidates CRC guidance

Michelle — Fri, 20 Apr 2012 14:59:32 +0000

On Tuesday the Environment Agency published its CRC Manual to assist participants in complying with the CRC Energy Efficiency Scheme Order 2010 (the “Scheme”). This has consolidated over 30 existing guidance documents into one point of reference.

No substantive change has been made to guidance previously available. However, areas where participants have complained of unclear wording have been clarified.

The success of the Scheme is vital if the UK is to meet its reduction targets for carbon emissions. Opponents of the Scheme say it is unduly complicated and creates an unfair burden on business.

Hopefully this consolidated guidance will make the requirements of the Scheme easier to understand so business can concentrate on what the CRC is really about; the reducing of carbon emissions.

Ben Standing
0121 237 4563
bstanding@brownejacobson.com

CGT Entrepreneurs Relief and EMI Share Options: think ahead for April 2013

Michelle — Fri, 20 Apr 2012 14:46:50 +0000

The recent Budget is still making the news, but away from the headlines it’s worthwhile looking at one of the less glamorous details of the Budget if you are thinking about taking share options under the Enterprise Management Incentive Scheme (“EMIs”). This bit of detail could help you save up to 18% capital gains tax (“CGT”) further down the line.

The Treasury said that they propose to relax one of the conditions for Entrepreneurs Relief, when an individual sells shares which they acquired under an EMI share option scheme. From 6th April 2013 the individual would no longer have to hold 5% of the ordinary share capital and voting rights of the company, in order to qualify for the 10% rate of CGT with Entrepreneurs Relief on their EMI shares. All of the other conditions for Entrepreneurs Relief would still need to be met, including having held the shares outright (and not just under option) for at least 12 months before selling them.

At this stage it’s only an outline proposal from the Treasury, but should be borne in mind by anyone planning an EMI Scheme now.

Andrew Noble
0121 237 3952
anoble@brownejacobson.com

Could free WiFi put retailers in a ‘Hotspot’?

Michelle — Fri, 20 Apr 2012 14:32:43 +0000

Shopping centre owner Land Securities plans to offer free WiFi access to shoppers. Retailers must be concerned that making it easier for customers to compare prices online may dent sales.

However, customers can already check prices using their mobile internet connection and WiFi availability links with other customer service improvements which should benefit retailers. For example at the White Rose shopping centre in Leeds an online search function has been launched (also available on mobile phones) that allows customers to find products in any of the centre’s stores and get further information like opening times and stock availability.

We think this type of offering will add value to the shopping experience and we expect to see it rolled out to other shopping centres soon. We agree with Land Securities’ commercial director who reportedly said: “… the internet isn’t going to be the end of the property industry. The two can co-exist and we’ve got to start creating a seamless experience for customers.”

Mark Hymers
0115 976 6081
mhymers@brownejacobson.com

Concern over workers being “bullied” by retailers over Sunday working

Michelle — Fri, 20 Apr 2012 13:52:16 +0000

The Government has this week published its ‘Sunday Trading (London Olympic Games and Paralympic Games) Bill 2012’. If the Bill is passed, it could allow retailers in England and Wales to trade for more than six hours on a Sunday in the eight weekends during the Olympics and Paralympics.
In response to the Bill, it is reported that the GMB Union have raised a number of concerns; including that workers will be “bullied into working”.
Current employment legislation in England and Wales gives specific rights to shop and betting workers to refuse to work on Sundays. For example; employees are protected from being dismissed when the reason or principal reason for the dismissal is a reason connected with the refusal of Sunday work.
It will remain to be seen whether the recent resistance from those groups opposed to the relaxation of Sunday Trading Laws will result in any change in approach by the Government on this issue.

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

Don’t forget to pay in full!

Michelle — Fri, 20 Apr 2012 11:01:53 +0000

The High Court has recently held that Cancer Research failed to break one of its leases effectively.

In this case, as is common, the lease required payment of rent quarterly in advance. It also contained a break clause allowing a tenant to give notice provided that all the terms of the lease had been complied with.

The tenant gave notice and, in respect of the last quarter’s rent falling due, paid an amount proportionate to the rent for the period between the quarter day and the termination date. The High Court held that the notice had not been effective to end the lease because the tenant had not paid the full quarter’s rent in advance. As a consequence it had not complied with the conditions of the lease and therefore the break was ineffective.

This case, the latest in a number of recent cases concerning failed breaks, shows that failing to comply with the terms of a lease can be a costly affair, particulary in the current market.

Kirsty Black
0121 237 3958
kblack@brownejacobson.com

Redpath’s departure draws speculation

Hannah — Thu, 19 Apr 2012 15:43:32 +0000

The resignation of Bryan Redpath as head coach of Gloucester Rugby Club on Tuesday has attracted comment from Gloucester chairman Ryan Walkinshaw.

The role of Director of Rugby at Sale Sharks is currently vacant, and Redpath is the favourite to take up the position. Walkinshaw stated yesterday that if evidence were found that the Sharks were involved in Redpath’s departure they would “fight back with a no holds barred legal attack”. The Sharks have confirmed that they are still interviewing candidates for the role.

This latest development in the world of rugby indicates that rugby is heading the same way as football, with interest in the movements of the management teams rivalling the interest in the performance of the sports teams themselves.

Posted by Hayley Prescott, who specialises in employment law, both contentious and non-contentious, including tribunal claims, unfair dismissal, redundancy, policies and procedures, compromise agreements, contractual issues and general advisory work.

Hayley Prescott
0115 976 6116
hprescott@brownejacobson.com

School abuse – Serious Case Review circulated nationally

Michelle — Wed, 18 Apr 2012 13:03:04 +0000

Tim Loughton has taken the unusual step of asking for the Serious Case Review into the abuse perpetrated by Nigel Leat at Hillside First School to be circulated to all school authorities across the country.

Leat admitted 36 sexual offences involving five girls, some as young as six, at Bristol Crown Court in May 2011. The January 2012 serious case review criticised school management for not acting on earlier warnings.

The review highlighted a number of learning points for schools, including ensuring policies and procedures for safeguarding and managing allegations against staff are disseminated to all staff and historical allegations are correctly recorded so patterns can be detected. The importance of effective safeguarding training for staff and governors was also highlighted, along with the need to follow proper recruitment practices.

All schools, not just those in early years settings, are well advised to read the serious case review and the executive summary before carrying out a thorough review of their policies and procedures and training provision. As well as ensuring best practice, it will stand you in good stead for your next Ofsted inspection.

Dai Durbridge
0115 976 6578
ddurbridge@brownejacobson.com

Do we have the resources to support 10,000 child care applications a year?

Michelle — Fri, 13 Apr 2012 11:51:45 +0000

In February we highlighted that for the first time ever there had been over 900 care applications in a single month.

It’s no surprise then, that after taking into account March’s figures, the children and family court advisory and support service CAFCASS reported that Care Applications in England over the last year hit 10,000 for the first time. This represents a 10% increase on the same period in the previous financial year.

Some suggest that cutbacks in early years services have contributed to this. Inexperienced young parents aren’t given the support they need, and when their children show signs of poor parenting, Care Proceedings are issued. This is ultimately much more expensive. Many question whether it’s desirable, particularly when decent foster placements are so notoriously hard to find.

One thing is for sure; local authorities and CAFCASS need to work hard to make sure these Applications are properly resourced. Otherwise they face expensive legal challenges and may be accused of doing more harm than good.

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

League tables or work-based learning?

Michelle — Wed, 11 Apr 2012 15:26:44 +0000

According to an Ofsted report published this week, some teachers deride pupils for opting to leave school at 16 and work as apprentices rather than focus on academic achievement. Whilst derision is not condoned, could this be the result of two competing government policies? On the one hand, the Government is currently driving the focus on apprenticeships but on the other, from 2014, it intends to measure schools based on the proportion of pupils that go to university.

With Government investment of £4.5million to give pupils high quality work experience and a publicity campaign of equal measure, apprenticeships certainly seem to be flavour of the month with the Government. But with schools always having at least one eye on league tables it is understandable that some are reluctant to actively support and promote apprenticeships at the expense of a strong league position.

Even the most innovative schools are going to find it difficult to win in this situation.

Lauren Millward
0115 908 4864
lmillward@brownejacobson.com