In reviewing the authorities on the concept of vicarious liability the court maintained that it would be unwise to treat these providing an authoritative test stating that each case must be determined on its own facts.

In doing so the court found the assault in Weddal was “separate and distinct” and “outside the course of employment” whilst in Wallbank they concluded it was “so closely connected, in time, place and causation”, being an “immediate response to instructions” that it was fair and just to hold they employer vicariously liable.

Despite concerns that the concept of vicarious liability was being incrementally extended, it is reassuring the Court of Appeal has reasserted the need for the courts to maintain a tight reign keeping the concept within clear limits.

Posted by Steven Conway, specialising in: defence of claims on behalf of insurers, local and public authorities, in particular employers’ liability and public liability claims.

Steven Conway
020 7337 1037
sconway@brownejacobson.com

The company will undercut private schools fees that are around £16,000 per year by offering parents an opportunity to send their children to a private school at a cheaper annual price of £8,000 to £12,000. By offering the same standard of education and facilities such as on site doctors, they aim to attract parents struggling to pay the usual private school fees in the current economic climate.

The schools will be subject to the same standards and inspection process that applies to other independent schools in England. However, there is concern as to where and how these savings will be made and concern that the high standards associated with the independent school sector could be diluted by this venture.

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

Mr Mulcaire attempted to rely on his right to privilege against self-incrimination (PSI), arguing that by revealing other names he would be liable to prosecution for conspiracy. However, the court held that PSI could be suspended in proceedings for breach of confidence under section 72 of the Supreme Court Act 1981. This would not compromise Mr Mulcaire’s right to a fair trial, because section 72 prevents incriminating statements or admissions being used in later proceedings, should they take place.

By accepting a definition of “confidential” including “private” and “commercial information”, the Court of Appeal effectively rendered PSI obsolete where any form of confidential information has been illegally obtained.

Dave Drew
0115 976 6226
ddrew@brownejacobson.com

This development builds on the successful model of many FE colleges who already provide higher education courses alongside A-Level, NVQ and other post-GCSE education. Last year, the government’s White Paper on higher education called for increased variety and competition amongst higher education providers. This year, the large number of FE colleges who were successful in their bids for additional funding is a significant move in that direction.

Demand for university education has dropped this year, but there will still be many more applicants than available places. The continuing pressure on the government to provide lower-cost degrees suggests that FE colleges will play an increasingly important role in the higher education sector in the coming years.

Dave Drew
0115 976 6226
ddrew@brownejacobson.com

The order addressed competition concerns dating back to 1997 in relation to certain types of white and brown goods and prohibited recommended resale prices (RRP) by suppliers and, except in limited circumstances, a refusal to supply goods to any retailer.

Time will tell whether there is a move back to RRPs and to more use of selective distribution. However, it seems unlikely that the revocation of the order will change the competitive nature of the sector and, of course, suppliers and retailers will continue to need to ensure that they comply with both UK and EU competition law.

Matthew Woodford
0121 237 3965
mwoodford@brownejacobson.com

The codes make it easier for good schools to expand by removing the need to consult where schools who act as their own admissions authorities wish to increase their planned admission numbers and allow anyone to raise an objection with the schools adjudicator in a bid to increase local accountability.

The idea behind the new codes was to make them clearer, shorter and more straightforward. They are certainly a little shorter, but inevitably ambiguity and complexly remain. What the codes won’t do is reduce the number of appeals faced by schools and Academies. Oversubscribed academies could well be crippled with numerous and time-consuming questions from parents exercising their rights to appeal under the code.

This was the opportunity for the government to reconsider the point and amend the codes accordingly, an opportunity they missed.

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

There is no legal entitlement to leave for voluntary work and it may be necessary to adopt a ‘first come, first serve’ policy and consider whether leave will be unpaid or paid. This can also apply where a number of employees request annual leave on the same day.

You should consider how to deal with employees who have travel disrupted and whether to implement flexible working or remote working. Sickness absence may also increase on particular days which return to work interviews may assist with. There may be performance issues with staff watching television on their computers which could be assisted by allowing this at particular times of the day.

Whilst the prospect of considering these points may be daunting, effective planning will minimise the impact of the games whilst flexibility will hopefully boost morale.

Posted by Amy Dowling, who specialises in contentious and non-contentious employment matters including defence at employment tribunals, unfair dismissal, redundancy and discrimination; also drafting contracts, compromise agreements, policies and procedures.

Amy Dowling
0207 7337 1002
adowling@brownejacobson.com

As we highlighted back in November, the government had launched a consultation on proposed reductions in the FIT rates. The changes were due to affect any installations approved on or after 12 December 2011, although the consultation period ran until 23 December. Before Christmas the High Court heard a challenge brought by Friends of the Earth, Homesun Holdings Ltd and Solar Century Holdings Ltd, finding against the Government.

The Government appeal has been dismissed by the Court of Appeal but the Government is considering a further appeal to the Supreme Court. This will cause further delays and uncertainty, particularly for solar panel firms and customers who have had installations approved after 12 December, as they still do not know what rate they will be receiving from April onwards.

Kassra Powles
0115 908 6200
kpowles@brownejacobson.com

Its board will consider a 63-page document outlining the NHS Commissioning Board’s future structure. It will have an “hour glass” shape – an 800-strong central office, four commissioning sectors (based on SHA cluster locations) and, at least initially, 50 local offices (covering PCT cluster areas). Each commissioning sector and local office is expected to have about 50 staff.

Whilst there is logic behind the structure, some might question how lean this structure really is. However, it seems that the NHS Commissioning Board’s budget represents a reduction of about 50% compared to the running costs of the functions transferring to it.

The board will also be asked to approve and adopt Clinical Commissioning Group guidance that has been in circulation (some in draft form) for a few months. Don’t ignore the board papers accompanying each item either, as they also contain some useful information.

Posted by Jonathan Hayden, specialising in: advising health and social care clients including clinical commissioning groups, primary and secondary care contracting, commercial contracts, joint ventures, statutory powers/duties and governance.

Jonathan Hayden
0121 237 4551
jhayden@brownejacobson.com

With it she announced a policy to increase the uptake of cloud computing throughout Europe through the creation of common standards and regulation, together with an initial investment of Euro 10 Million from the European Commission to make it happen.

Personally I’m always a little concerned by announcements to boost the economy through greater regulation. If however the policy results in greater uptake of cloud computing by the public sector (whether through true “public” clouds or through the greater use of “private” clouds), as common standards are agreed and accepted then there is a real chance of (much-needed) cost savings, which must be welcome.

Let’s hope an agreement on standards can be reached more quickly than agreement on the debt crisis, even if it does involve putting up with unnecessary repeated references by politicians to becoming “not just Cloud friendly but Cloud active”.

Posted by Richard Nicholas, who specialises in commercial, IT and outsourcing agreements, complex projects for private and public sector clients, collaboration, distribution & agency contracts, e-commerce and consumer law.

Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com

PropCo is to be a government-owned limited company, NHS Property Services Limited. It will be wholly owned by the Department of Health and its role will be to own and manage that part of the PCT estate not required by community care providers. Property that is needed for clinical services, and mainly occupied by providers for that purpose, will be transferred to them. Support for the PCT estate will continue to be provided through existing contractual arrangements in place with service providers that already deliver and maintain NHS properties.

Now that the principle of a single management company for the estate has been established, there is real opportunity for structured management of the entire portfolio and long called for clarity on the future of the estate.

Posted by Stewart Gregory, specialising in: property law, particularly its application within the healthcare sector; advises the commercial and residential sector on site acquisitions and completed development disposals.

Stewart Gregory
0115 976 6299
sgregory@brownejacobson.com

The current position which appears to allow large numbers of claims to be aggregated was arrived at after a decision by the SRA to shift the goal posts in favour of the insurers by altering the aggregation clause in the Minimum Terms and Conditions in 2005. It is now obviously felt that the Insured solicitors, their clients (and in cases of dishonesty, the Solicitors’ Compensation Fund) are insufficiently protected.

Further clarity on the wording is needed to allow underwriters to assess accurately the risks and fix premiums. This may result in solicitors (and other professionals) insisting on certain wordings in their primary policies, driven in all likelihood by their clients, especially mortgage lenders.

Posted by Jim Hobsley, who specialises in professional indemnity claims involving a wide range of professionals including accountants, surveyors, solicitors and barristers; experienced in policy coverage disputes.

Jim Hobsley
0207 337 1011
jhobsley@brownejacobson.com

The purpose of new league tables, due out next week, is to incentivise schools to raise standards and teaching for all pupils, instead of encouraging them to jump through hoops to avoid intervention. The revised tables will show more accurate and detailed statistics of grades, offering a comparison between the schools that take on high achievers and those that started at a lower base. They will carefully monitor the improvements made in each school.

It is hoped that this will further the government’s agenda to close the attainment gap between different backgrounds. This is coupled with the extra Pupil Premium funding to support poorer children. The theory is that in return schools should deliver the same level of achievement for all children, regardless of background.

Laura Richards
0115 976 6249
lrichards@brownejacobson.com

There is evidence of big differences in approach to the use of social media amongst schools- some ban teachers using the sites altogether, some allow restricted usage and others have barely considered the issue. And it needs to be looked at not only from a ‘friending’ point of view, but also to consider issues like appropriate privacy settings and profile pictures which, regardless of friending, can be accessed by pupils, parents and colleagues alike.

I hate to press for even more guidance in our sector, but this is an area where it seems schools need help.

Posted by Dai Durbridge, who specialises in 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

It is obviously difficult to make meaningful cuts in expenditure without decreasing the quality of service provided. No doubt local authorities are monitoring this balancing act very closely, and clarion calls such as this should be listened to.

However, thresholds and resources are two very different issues, and there is real danger if they are conflated. If the threshold is too low, then it is too low whatever the resources position. A lack of resources should not be a reason to lower the threshold – it would be wrong to make it easier to remove a child from his parents because social workers have less capacity to investigate the home situation. The budgets cuts create real pressure, and clear heads are needed.

Kate Bear
0115 976 6104
kbear@brownejacobson.com

Whilst the shareholders and employees of La Senza, Blacks, Pastimes, Peacocks and now Pumpkin Patch may not share our relief, budget retailers such as Primark, New Look and Matalan appear to be bucking the trend by reporting strong Christmas trade.

However, with consumers tightening their belts after their Christmas spending the next couple of months are expected to be quieter, leaving both retailers and landlords to worry about the upcoming March quarter rent date. Perhaps our relief is going to be short lived….

Suki Tonks
0115 976 6519
stonks@brownejacobson.com

Yes, according to Readman v Devon Primary Care Trust. Mrs Readman, a community matron, refused an offer of suitable alternative employment as hospital matron, as she did not wish to work in a hospital. Her employer denied her a redundancy payment, stating she had unreasonably refused the alternative post. The Tribunal found that a reasonable employee would have accepted the post. The decision was overturned on appeal on the basis that the Tribunal failed to give adequate weight to the employee’s personal reasons for refusing the role. The EAT found that Mrs Readman was entitled to her redundancy payment.

This case is not helpful to employers who need to reorganise their business but wish to avoid expensive redundancies. The individual circumstances of the employee – domestic and travel arrangements, caring responsibilities and career preferences – are relevant and need to be considered.

Joanne Lewis
0121 237 3906
jlewis@brownejacobson.com

The claimant argued that the son was sometimes entrusted to look after children at the home. It was argued that despite the fact that he was not an employee of The Children’s Society, the charity is liable for the abuse as it took place while the son was ‘in charge’. If this argument is successful the categories of people for whom defendants such as schools, charities and fostering agencies might be vicariously liable could be enormous.

We will be providing an update as soon as the judgement is available.

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

Even 5 years ago claimants proving prolonged and very serious sexual abuse over a number of years were recovering a maximum of £50,000 General Damages. More minor and isolated incidents might attract as little at £5,000. Special Damages claims were also relatively modest, with Claims of Therapy of £7,500 on average, and future loss of employment capacity usually calculated on a Smith -v- Manchester basis at between £10,000 and £20,000.

These days the effect of cases like this, and claimants’ increased use of CFAs means we are often reserving even modest claims at £100,000.

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

Although the two final images are clearly the product of different photographs, the PCC held that on a qualitative assessment Image 2 reproduced a substantial part of Image 1 and therefore infringed.

Given that the two images are taken from a very different perspective this decision seems to grant very wide copyright protection to the claimant. Here the defendant has infringed by reproducing an image of a classic London icon from a location which the judgment acknowledges is popular with photographers, and has applied a well-known editing technique to isolate the red colour of the bus.

Although there are similarities, this decision pushes the very limits of what is protectable in a photographic image.

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

Kirsty Black
0121 237 3958
kblack@brownejacobson.com

The court held that even though the MoJ retained considerable control over how the contract was performed and the scope for exploiting the services further by the contractor was extremely limited the fact that the payment of fees under the contract came from third parties (the debtors) and the risks of management and operation of the service transferred to the contractor were enough to make it a service concession.

The court did acknowledge that the facts of this case didn’t fit neatly into the normal descriptions of either public service contracts or concessions meaning that future cases on the same point may end differently.

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 bodie.

Anja Beriro
0115 976 6589
aberiro@brownejacobson.com

According to media reports the Department of Health is considering plans that the PCT estate will be better managed by a single management organisation, rather than by numerous successors to the individual PCT’s. There are suggestions that the PropCo could be devolved into regional subsidiaries with regional arms, but at this stage nothing is concrete.

Early opinion appears to be mixed. However, key questions remain, such as what effect this will have on the day-to-day management and dealings with individual NHS properties. It could be suggested such an approach may create uniformity in managing the PCT retained estate “across the board”. However, will such centralisation slow down the delivery of patient services and the placing of new providers into those properties?

There will be a need to carefully review these proposals as they emerge, but guidance on future property holding arrangements will be welcome news for PCTs.

Posted by Mick Suggett, who specialises in commercial freehold and leasehold property within the public health and local authority sectors; preparation of reports on title for lenders and public bodies.

Mick suggett
0115 908 4885
msuggett@brownejacobson.com

The TV advert which was seen on Sky, Watch, ITV, Quest and UK Gold featured scenes in rapid succession culminating in 304 alternating black and white ‘YES’ words appearing across a screen.

Nina Best, a specialist in advertising law at Browne Jacobson commented:

“Adverts must not include visual effects that are likely to affect adversely members of the audience with photo-sensitive epilepsy. Advertisers must remember that the rules are not only about the words or images included in their advertisement, but also the way they appear is subject to constraints. It is not only what you say that can hurt but the way you say it.”

Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.

Nina Best
0115 976 6529
nbest@brownejacobson.com

Consumers today use their television simultaneously with their tablet or smart phone – “second screen viewing”. Alive to the opportunity to involve their viewers, networks are promoting ways of making television a two-way flow of information, whereby the viewer can communicate via social media to both their friends and the network itself. Where viewers go, advertisers will follow.

Joint programming ventures between old and new media will present unique legal challenges for the advertising and marketing sector. They may want to utilise consumers’ live feeds and personal data, on separately owned distinct mediums, accessible in multiple jurisdictions. The technology, the networks, and the advertisers might be ready for globalised multi-medium programming, but have all the risks of complaints been considered?

Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.

Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com

This announcement comes hot on the heels of plans to carry out no-notice inspections to address flaws in the system after concerns were raised that in some schools poor teachers and naughty students were told to ‘stay home’ during Ofsted inspections.

Though critics have accused these changes as being part of a wider plan to force schools to become academies, there are many who see this as a welcome move to address inadequacies and strive for the best education for all children.

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

While a lot of local authorities will already have started thinking about drafting a statement it will require a lot of input from both officers and members and will need to be approved by the full authority. This approval is aimed at making the authority more accountable to the local tax payers with the hope that the gap between the highest and lowest earners will reduce.

The policy must be applied from 1 April 2012 and it will be interesting to see if the government’s wish to effectively “cap” the pay of the most senior officers will come true.

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 amounts will be based on the actions that an authority has taken to boost business within its area and this will not always be an easy calculation to make, the proposed system being a complex one.

Mr Pickles has been quick to respond to criticism that the main benefits will lie in the south-east saying that certain authorities in the middle and north of the country could have been benefitting already if these provisions were in place.

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 first phase, connecting a new Birmingham station to London and the Channel Tunnel, is projected to be completed in 2026 and cost £33bn. A second phase, which will face a consultation in 2014, would extend the line to Manchester and Leeds by 2033, whilst connecting the line to Heathrow is also being considered.

Government claims that the project will create £47bn of benefits have been disputed; environmental groups say that 160 important wildlife sites will be damaged despite modifications being made to the route; and residents are concerned about HS2 affecting their land and communities.

The strength of opposition suggests that HS2 may still hit the buffers, potentially through judicial review proceedings brought in the courts. The debate over HS2 is far from over.

Kassra Powles
0115 908 6200
kpowles@brownejacobson.com

The changes have led to widespread concern, with companies fearing reputational damage if their key brands and trade marks fall into the wrong hands. However, with a non-refundable “evaluation fee” of $185,000 and careful policing promised by the registries, there should be a significant barrier in the way of most Internet fraudsters.

The industry is estimating we will see around 1,500 initial applications for gTLDs. In our opinion, gTLDs represent a new frontier on the Internet and, in turn, a great opportunity for companies to stake their claim with key trade marks or creative new branding.

Posted by Oliver Laing, who specialises in intellectual property agreements, anti counterfeiting and disputes relating to patents, copyright, trade marks, designs, as well as domain name disputes and reputation management.

Oliver Laing
0115 908 4854
olaing@brownejacobson.com

It will be up to individual schools to review their policies from September in light of the recommendations of the Government. Schools seeking to put this robust approach into practice should be mindful that the ultimate test is not the word of Mr Gove but that of the Employment Tribunal. Whether a Tribunal would consider the government’s timetable to be fair 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

The Committee reports there has been a 70% rise in motor insurance injury claims in the past six years, despite a 23% drop in the number of RTA casualties.

It recommends an increase in the threshold for receiving damages in whiplash cases and if this fails to reduce the number of claims significantly, the government should bring forward primary legislation to require objective evidence of whiplash injury and it having a significant effect on the claimant’s life, before compensation is paid.

Anyone who has been involved in a road traffic accident or who deals with these claims will be aware of the huge industry that now surrounds even the most minor accident. It is time for a change.

Posted by Steven Conway, specialising in: defence of claims on behalf of insurers, local and public authorities, in particular employers’ liability and public liability claims.

Steven Conway
020 7337 1037
sconway@brownejacobson.com

Some schools believe these changes are a result of recent claims that schools attempt to portray a stronger impression during Ofsted inspections by sending “bad” pupils home or drafting in staff from other schools. There are also concerns that shorter or no notice inspections may stop schools properly engaging with the inspection process.

Ofsted has carried out 1,500 no notice inspections over the last 18 months and defends the new system by assuring that the sole aim is to provide a true picture of school performance. Schools should be able to trust the inspection process but no notice inspections may just aggravate the feeling that Ofsted is trying to catch them out.

Laura Richards
0115 976 6249
lrichards@brownejacobson.com

This week brings news that the needs of older children are being forgotten and that it is a concern that deserves to be taken seriously.

Since 1999 it has be possible for children to bring claims against local authorities for failing to secure appropriate arrangements which are in Looked After Children’s short and long term best interests. Failure to do so could be the subject of long, expensive and protracted litigation – something which we are seeing a lot more of.

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

A pre-pack administration affords struggling companies some protection from their creditors. However, landlords as unsecured creditors, are unable to protect their interests as they are unaware of the pre-pack administration.

Whilst the sale of both the La Senza and Blacks businesses has prevented a further two faces from disappearing from the high street, it has left landlords feeling the sting of a further two pre-pack administrations. Perhaps the sensible solution is for landlords to enter into negotiations with their tenants at the first signs of trouble as surely a reduced income is better than having a huge rental bill wiped clean courtesy of a pre-pack administration?

Suki Tonks
0115 976 6519
stonks@brownejacobson.com

The court agreed with the applicant. Firstly, NICTS did not have good evidence recording their evaluation process which in general is very important. Secondly, it was clear that G4S’ alternative proposals were taken into account which meant G4S received preferential treatment. By giving weight to “irrelevant” information the panel had committed a serious and manifest error.

The court set the award procedure aside. This case highlights once again the importance of evaluation based solely on the information available to all potential bidders and to record clearly the manner in which the evaluation criteria were applied.

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 Commission produced a green paper proposing reform which the Government responded to in July last year. Some of the responses made have clearly been incorporated into the current proposals and the Government has stated its intention to continue negotiations throughout 2012 with a view to protecting the UK’s position. If the Government can continue to push for simpler, more flexible procurement regulations then this will be welcomed by both the public and private sectors.

Alex Kynoch
0115 976 6528
akynoch@brownejacobson.com

The DCE is proposed as a solution to the problem of the collapsing value of creative content – which can be electronically replicated and shared – by creating a cheap and efficient online copyright licensing system. The Government hopes that this will harness the growth potential of creative industries and make the UK a leader in digital copyright services.

However, there was a note of uncertainty from Baroness Wilcox, the intellectual property minister, who indicated that it was still to be determined if the DCE was a “workable proposition.” Updating copyright law for the digital age will be complicated and, whatever the government’s decision, Hargreaves’ proposed completion date of the end of 2012 looks increasingly ambitious.

Dave Drew
0115 976 6226
ddrew@brownejacobson.com

Furniture Village brought a Nominet complaint about furnitureland.co.uk. The respondent claimed that, although he knew about Furnitureland, he thought they had stopped trading, and so his registration of the domain name was in good faith.

Both the first instance Expert and Appeal Panel agreed, so the respondent gets to keep the domain furnitureland.co.uk, which it is using as a click through website.

The case shows that the Nominet DRS is not suitable unless the complainant can clearly show the registrant knew of the complainant’s rights.

Faced with similar facts, brand owners should consider a passing off or trade mark action, which may have a better chance of succeeding.

It is also worth noting that the panel maintained the DRS’s reputation for speed by refusing to stay the appeal because of a pending trade mark revocation.

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

• The qualifying period for unfair dismissal is expected to be increased from one to two years in April
• Pensions auto-enrolment for larger employers begins in October
• Consultations are to be progressed on the introduction of the following:
  • ‘protected conversations’ between employers and employees about employment issues
  • a standard text for compromise agreements
  • allowing smaller employers to execute ‘no fault’ dismissals on payment of a prescribed sum
  • early compulsory conciliation of all claims
  • introduction of fees to bring a tribunal claim

The government is keen to reduce the amount of red tape in employment law to support business and boost the economy. This will be welcomed by employers. However care must be taken to ensure that the changes improve the effectiveness of the current framework, and do not simply add to employers’ administrative burden.

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

Footpath is a system marketed as a “unique breakthrough product” providing 24/7 monitoring of pedestrian behaviour using mobile phone technology. Use of the system in shopping centres enables the centre to gather information to help understand, amongst other things, which retail sites are complementary, shopper flow volumes and flow and the potential value of advertising space. Shoppers too benefit from better retail mixes and more effective planning around centre bottle-necks.

But, civil rights campaigners think otherwise. Tracking mobile phone signals without consent is, they cry, an invasion of privacy. No express consent is given but also no personal information is collected. Only when mobile phone providers cooperate with data collectors will there be any real threat to privacy.

Posted by Paula Dumbill, who specialises in non-contentious intellectual property, particularly trade marks and copyright, advising in particular on IP exploitation and collaboration agreements and trade mark portfolio management.

Paula Dumbill
0115 976 6059
pdumbill@brownejacobson.com

The report, Relationship Counselling, surveyed around 200 senior leaders from local government, healthcare, uniformed services and universities.

The report highlights growing opposition and resentment to closer ties with the public sector amid increasing concerns over risks to service delivery.

This is an issue that is clearly taxing the minds of public sector managers as was evidenced at our December Claims Club session on shared services, outsourcing and private sector delivery of local government services.

With the report predicting public-private sector collaborations will double over the next three years these are unsettling findings.

Then again following the very public failure of private sector providers of care services in 2011 perhaps we ought not to be that surprised by the research findings.

Posted by Bridget Tatham, specialising in: high value complex litigation relating to disease and stress and bullying at work; experienced in regulatory matters including advocacy, investigations and inquests.

Bridget Tatham
0121 237 3916
btatham@brownejacobson.com

With many depicting a double dip recession on the horizon Cameron argues businesses need some respite from the “battle against a tide of risk assessment forms and fear of being sued for massive sums”.

Many believe there is almost strict liability for employers’ liability claims which makes even accidents where there is no fault on the part of the employer virtually impossible to defend.

Cameron intends to abolish or consolidate up to half of the existing health and safety regulations and to change laws so that businesses are no longer automatically at fault if something goes wrong.

Whilst we await the Prime Ministers detailed proposals his call for individuals to take “responsibility for our actions and rely on common sense” will be welcomed by all those who have felt that the scales had tipped too far in favour of the careless, feckless and work-shy.

Posted by Steven Conway, specialising in: defence of claims on behalf of insurers, local and public authorities, in particular employers’ liability and public liability claims.

Steven Conway
020 7337 1037
sconway@brownejacobson.com

The aim is that the anonymous system will provide Ofsted with information about schools that will help inform their priorities for inspection. Over 9,300 parents have completed the questionnaire since its launch. Initial analysis shows just under a third of families with children at the schools where results had been analysed said they would not make recommendations about their children’s school to other parents.

Parents often go by word of mouth when making important decisions about their child’s education, so this questionnaire provides a crucial portal for them to base their decisions. However, there is a danger that the anonymous system could be abused with schools being targeted unfairly, resulting in misleading results.

Laura Richards
0115 976 6249
lrichards@brownejacobson.com

Tim Laughton wants social workers to be able to make common sense judgements about people’s suitability to adopt, but I can see trouble ahead if the correct investment is not made to train, support and develop those Practitioners responsible for the task. It’s a complex and sensitive task, and although it could be done faster than is currently the case, care must be taken to ensure that people aren’t allowed to conclude they have a right to adopt no matter how old, unfit or inflexible they may be. The welfare of each child must be paramount.

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

The limit for supply and services and design contracts has increased to £173,934 and the limit for works contracts is now £4,348,350.

Whilst any rise in the thresholds will be welcomed by most public bodies, the increase of approximately 3% is unlikely to have a significant impact on the nature of works or services which trigger the requirement to conduct a public procurement exercise. Current UK inflation stands at 4.8% meaning that even a 3% increase may equate to a reduction in ‘real terms’ here in the UK, but public bodies can at least take comfort in the fact that the thresholds have not been decreased as was the case in January 2008.

Alex Kynoch
0115 976 6528
akynoch@brownejacobson.com

This revision is a consolidation of all previous UK Roads Liaison Group winter guidance documents and includes new detailed information on the scope and detail recommended for local authority winter maintenance policies. Local authorities would be well advised to note these to ensure they comply with their duty under section 41(1A) of the Highways Act 1980 as we head in to the winter weather season.

Posted by Steven Conway, specialising in: defence of claims on behalf of insurers, local and public authorities, in particular employers’ liability and public liability claims.

Steven Conway
020 7337 1037
sconway@brownejacobson.com

This is perhaps a non-story because last week, the EU Consumer Rights Directive came into force. This requires the UK to make a number of changes to consumer law (some positive, some negative) by December 2013 (including such a ban), so that consumer protection is fully harmonised across the EU. But the Government does propose to put a ban in place earlier, in 2012.

To get a PR advantage over slower competitors, businesses might want to make the changes to their terms and conditions and websites before they become mandatory. Consider it an early Christmas present to your customers!

Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.

Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com

The effect of the uproar in 2010? The site closed for 24 hours only to reopen with a tick-box for users to confirm they were over 18. This was meant to appease critics. Fast-forward one year and whilst the DfE has promised it is taking steps to have the site shut down, schools cannot sit back and rest easy.

Cyber-bullying is a deepening issue. Schools need to take reasonable steps to protect staff and pupils from cyber-bullying. As a minimum, schools should have a clear e-safety policy, regular dialogue with parents and pupils on the risks of social-media sites and signed acceptable-use-policies. The DfE are stepping in, but schools need to keep up their good work too.

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

Under the current system the wait for adoption averages over 2 years and around 1,000 children a year are unable to find families. This statistic is not helped by the system discouraging new applicants and existing applicants being turned away for being overweight or for previously smoking. There is clearly some work to do here.

Tim Loughton, has asked a group of experts to draw up new plans for assessing potential adoptive parents; not an enviable task. Whilst improvements must be possible, striking the right balance between protecting some of the most vulnerable children in society and opening the door to more applicants will prove challenging.

Social Workers have responded by saying that delays are an essential part of ensuring matches between children and adopters are sound and the risk of breakdown limited. There is a risk that for the sake of speed and numbers, the quality of assessments of potential adoptive parents could be reduced.

Kate Bear
0115 976 6104
kbear@brownejacobson.com