Archives for 2012

Employers can be liable for Facebook harassment by employees

Employee A uses employee B’s work computer to update employee B’s Facebook status in a way that is discriminatory and amounts to harassment.  As their employer are you liable?  Yes, according to a recent Employment Tribunal case. [Read more…]

New Requirements for Gift Aid Declarations

HMRC has updated its requirements for Gift Aid declarations. It is important that you review and, if necessary, amend the wording that you use.

HMRC now require that donors confirm they have been given an explanation that they must pay enough Income or Capital Gains Tax to cover all Gift Aided donations that they intend to make that year.  Previously, donors were asked to confirm only that they pay enough tax to cover the gift to your charity.

This does not represent a change in the law but a clarification of HMRC’s requirements.  HMRC say that if charities use this new form they can be confident HMRC will not later challenge a Gift Aid claim on the grounds that the donor gave an invalid declaration, i.e., because they were not in fact paying sufficient tax.  This risk applies particularly to large donations.

You have until 31 December 2012 to change your declarations.  There are model declarations available on HMRC’s website and a checklist for Gift Aid donations.

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Redundancy Selection Pools – Don’t Get Caught Out

Redundancy can occur where a business decides to close or relocate, or if a business has a diminished requirement for employees to do work of a particular kind.  Before selecting an employee for dismissal on the grounds of redundancy, your business must consider from which pool of employees redundancy selection should be made. Otherwise the dismissal is likely to be unfair. [Read more…]

Dismissal for Comments on Facebook

Employees often fail to understand that comments made on social media are not always “private”.

When an employee in a call centre posted a number of obscene comments about a female co-worker on Facebook from home, he also mentioned the name of his employer.  A member of the public with access to his Facebook posts informed the company. The employee was dismissed for breaching the company’s policies on harassment and for bringing the company into serious disrepute. [Read more…]

Some useful Latin & some common sense

Lawyers are no longer allowed to use Latin, although we sometimes lapse where there is a good phrase that doesn’t have an easy English equivalent.  One of those is ex turpi causa non oritur actio.  In English, that means that someone who is participating in an illegal activity cannot claim compensation for an injury that arises from that activity.

A lovely example of this occurred recently in which a young man called Mr Joyce sued an older man called Mr O’Brien for severe injuries he suffered when Mr O’Brien was driving and Mr Joyce was his passenger.  The Judge rejected his claim applying the principle ex turpi causa, in circumstances about which most right-thinking people would entirely agree.  Mr Justice Cooke put it like this;

“As a matter of general public policy, a participant in a joint enterprise theft which involves a speedy getaway in a van, with one participant driving and the other clinging dangerously onto the stolen items at the rear of a semi-open van, with a door swinging, cannot recover for injuries suffered in the course of that enterprise”.

“The driver cannot owe a duty of care to his co-conspirator and it is not possible to set a standard of care as to how fast the van should be driven, in circumstances where speed is necessary to get away and there is a need for the other co-conspirator to hang on desperately to the stolen items and the back of the open van in order to effect their joint objective of a speedy escape”.

The Judge did not have any difficulty in rejecting, in these circumstances, the proposal on behalf of Mr Joyce that he thought they were just borrowing the ladders with the householder’s permission, given that the householder wasn’t in, and that Mr Joyce was standing on the rear step of the Transit van trying to hold onto the ladders while his uncle drove off at high speed.  Whether Mr Joyce was prosecuted, either for theft or stupidity, isn’t recorded.

Many years ago Neil Howlett used to practice in Criminal Law.

Who are you doing business with?

Before you make a contract you should be confident that the other party is capable of completing their commitment.  That’s “Due Diligence” which, for a big contract, can be complex.  For any contract the essential is that you know who you are doing business with.  If things go wrong you need to know who you can complain to or, if you have to, sue.  You should give your customers confidence in you by making it easy for them to confirm who you are.

There are rules about this.  It’s right to be suspicious of businesses that don’t meet these rules.  They may just not be very competent administratively (which may be a risk) or they may have something to hide.  Rogues are experts at making it difficult to find out who you are actually contracting with.  That’s fundamental to any business relationship.

Whether your business is trading on-line or not, it is almost certainly affected by the E-Commerce Regulations.  Unfortunately a lot of website designers seem to be ignorant of them.  BIS issue a Guide on Compliance.

Similar rules apply to all business communications, i.e., letters, order forms, emails etc.  There is also a rule that the registered name is displayed at any location at which a company or LLP carries on business (unless used primarily for living accommodation).  For companies see The Companies (Trading Disclosures) Regulations 2008 2008/495 in force since 1st October 2008.

Those for partnerships they are slightly complicated;

  • Partners names do not have to be given where you are a Sole Trader using only the name of the Sole Proprietor or a Partnership whose name is the names of all the Partners (e.g., “Smith and Jones” if Ms Smith and Ms Jones are the only partners.)
  • Initials & surname are sufficient, though if full names are given for some they should be given for all
  • If there are more than 20 Partners it is sufficient for the notepaper to state that their names are available for inspection at the address given (this applies also to LLPs).

Businesslink is a good place to start.

Contact | Neil Howlett

Wills – Only One Chance to Get It Right

You know it is important to make a Will.  If you don’t your assets will be distributed under the Intestacy Rules which may not be what you would want or your family need.  If you recognise that and make a Will you want to be confident that it will be effective and that your wishes will be carried out.  You can do it yourself, or use a “Will-writer” but if it goes wrong you will be leaving problems for your family, with the risk of disputes and significant legal costs to put things right – if they can be.  If you are making a Will you want to be confident it will do what you want. [Read more…]

A Guide to Cookies

All EU commercial websites must comply with the EC Cookie Directive and the ICO’s Guidance.  This has caused a lot of head scratching balancing compliance with ease of use.  The ICO’s latest Guidance issued in May 2012 is much more workable than earlier versions.

The International Chamber of Commerce (ICC) UK has issued a useful Cookie Guide which has been welcomed by the ICO as a “good starting point” from which “to work towards full compliance”.  This categorises cookies into four categories;-

Category 1- “Strictly Necessary” Cookies such as the contents of your shopping basket.

Category 2 – Performance Cookies such as Google Analytics which collect anonymised data.

Category 3 – Functionality Cookies which enhance performance but don’t do more and don’t survive the end of a session.

Category 4 – Targeting and Advertising Cookies which remember user behaviour and are then used to alter the delivery of information in future.

There has been much legal discussion about the ICO’s guidance and whether it is workable.  Normally where there is a requirement to obtain “informed” or “positive” consent that requires some indication of a positive election by the user after having been given access to relevant information.  It is questionable whether ICC’s Guide on Categories 1-3 or even the latest ICO Guidance meets that standard.

However, in any situation in which there is a possibility of prosecution there are always two requirements.  The first is that there is a technical breach of the law.  The second is that there is a decision made to prosecute by the authority with power to do that.  The CPS has a Code of Practice, which sets out criteria for and against prosecution for most common offences, and always operates an overriding criterion of whether a prosecution is “in the public interest”.  Although the ICO does not issue such a Code of Practice the indications are that the ICO will follow a similar pattern, and will concentrate on investigative and enforcement resources on Category 4 Cookies, which gave rise to the original EC Directive.

Businesses will have to make a Risk Management decision whether and how to obtain positive consent for Category 1-3 Cookies.  It is difficult to see how any website operator can comply on Category 4 Cookies without some form of click through consent, though some major organisations have yet to impose that.

If you manage your own content this is up to you.  If your website is managed you should ask for a solution, but it is likely to be your legal responsibility.  Browser based solutions are being developed.

For further guidance and discussion see AllAboutCookies to which the ICO refers users, and The Cookie Collective.  Cookie Control provides a neat tool that is used on lots of public sector sites is easy to implement and free.

Data Protection Toolkit

Businesses need to understand the key legal obligations they have when dealing with personal data about customers, suppliers, employees or any other individual who may be encountered during the course of business.

The Information Commissioner’s Office (ICO) has published a new toolkit for businesses to use to help increase awareness among their staff of the importance of handling data securely and confidentially. The toolkit provides a range of free downloadable materials including posters, bin stickers and postcards for businesses to use in all staff areas.

The ICO has also started offering advisory visits to businesses, in addition to its data protection audits.  The visits are aimed at SMEs that process significant volumes of personal information or sensitive personal data.

For advice on Commercial Law and Employment Law please contact:

Roland Callaby
Neil Howlett
Andy Hambleton

Restrictive Covenants in Employment Contracts

It is sensible for employers to protect themselves by having Restrictive Covenants in Employment Contracts, as otherwise employees may use knowledge and contacts acquired during their employment to compete with their employer after they leave. However, such covenants are ineffective if they are poorly drafted.

A High Court decision illustrates the importance to employers of having effective restrictive covenants, appropriately drafted to an employee’s role, to protect their business. The restrictive covenant in this case stated:

“During your employment with Customer Systems (CS) and for a period of one year afterwards you undertake not to be employed directly or indirectly by any present or past customer of CS with which you have been personally involved in the course of your employment by CS.”

The court held that the covenant relied on by the employer was unenforceable. Its 12-month duration was considered too long, as there was no time limit on the interval between the employee’s involvement with a customer and the employee leaving the business. The inclusion of past customers without any limit on time was unreasonable, as was the absence of any time limit on the employee’s previous involvement with the customer.

For advice on Employment Law contact:
Roland Callaby
Neil Howlett
Andy Hambleton