Protected Conversations – Are they safe?

From 29th July 2013 it will be possible for employers and employees to enter into discussions to end employment on a confidential basis.  These changes are intended to address the difficulty for employers that they cannot have “off the record” discussions with an employee unless there is an existing dispute between them.   Where the issues are ones of performance or absence or “fitting in” employers do not want to create a dispute.  Although well intentioned, this change in the law may create more problems than it solves.

The main problem with the new law is that it only prevents the use of the discussions in cases of Unfair Dismissal.   The discussions could still be used in a claim based on Discrimination, or one of the grounds where a Dismissal is Automatically Unfair.   They will also be admissible in a claim for Unfair Dismissal if there is “improper behaviour” which includes bullying and victimisation, or putting undue pressure on a party.  The gloss that it must include (but not be limited to) “unambiguous impropriety” isn’t that helpful. Exactly what will be regarded as improper behaviour will doubtless be fought out before the Employment Appeal Tribunal.

ACAS have issued a Code of Practice on Settlement Agreements and discussions. That is not statutory but is guidance on good practice, and failing to follow it may be “improper behaviour”.   This includes the requirement for a “reasonable period of time” to consider any proposed Settlement Agreement, which ACAS say should be 10 calendar days “as a general rule”, and that if there are to be face to face meetings that the employee should be allowed to be accompanied; similar to the rights they have to be accompanied at Disciplinary Hearings.

There remain many pitfalls even for the well intentioned employer.  Employers wanting to use this procedure are likely to need legal support.   They will want to be sure that there are no circumstances from which the employee involved in such a process might plausibly raise any claim for Discrimination, either direct or indirect.   They will also want to ensure that the process follows the ACAS guidance and that it cannot plausibly be alleged that any part of it amounts to “improper behaviour”. Employers will also need to consider what the Employee should do during any period when they are considering a proposed Settlement Agreement; can or should they be suspended or put on Garden Leave, and does the employer have the right to do that?

Finally, even if an agreement is reached for it to be enforceable against the employee it must still be in the form of a Compromise Agreement (to be renamed ‘Settlement Agreement’) on which the Employee must have independent advice and which must meet the statutory criteria contained in s.203(3) Employment Rights Act 1996.  Employees will expect employers to pay for the cost of such advice. It appears that the proposal to produce a Model Settlement Agreement has been dropped, and in any case it is likely that such model agreements would need to be edited to take into account the specific circumstances of each individual case.

See here for the ACAS Code of Practice

For advice please contact Neil Howlett or Andy Hambleton.

What can we do for you?

You can obtain legal services from many sources, both regulated and unregulated. The latest new kid on the block is the Co-op who think they are different because they will “put the customer at the heart of our plans” and will be “serving the community”.  Apparently they think that “for a solicitor it’s an alien approach”.  We think we have been doing that at least for more than 100 years.

The Co-op’s first point of contact will be YouTube which will point customers towards a call centre and then, if necessary, a solicitor. At Harris & Harris we think you should always speak about your problem or transaction to someone who knows what they are talking about. Here a few good reasons why you can trust us:

Expertise – All our solicitors are specialists. They will only act for you if your work falls within their own particular areas of expertise. If not, but someone else at Harris & Harris has that expertise they will introduce you. If it isn’t work we do we can recommend a specialist, and we do not take a fee for doing that.

Experience – Solicitors working for Harris & Harris have accumulated more than 200 years’ experience between us.  However new your situation may be for you, we’ve probably seen it and solved it before.

Solutions – We have to help achieve your aims, or find the best solution to your problem. That also means being realistic with you about what is achievable, risks and costs.

Independent – We’re independent. We neither owe obligations to, nor are dependent on anybody but you, our clients. Our advice is completely impartial and puts you first.

Trust – People have been coming to us for help for more than a hundred years. Our service to them and our professionalism are our “marketing strategy”. We believe that looking after you is the best way to ensure you come back, and recommend us to others.

Engagement – We will gain understanding of you and your business, not just treat the legal issues as an isolated single transaction. We’re a part of our community, not just of businesses, but as people, churches and community organisations.

Management – We’ve held the Lexcel Quality Mark since 2004 – we were one of the first firms in the area to gain accreditation. We’re a Partnership and we involve our staff in how we are managed so we all understand how to run a business.

Guaranteed – We don’t say this. What we do is backed up by professional regulation and professional indemnity insurance.

Teenage Parties – Parental Responsibility

There is a lot of concern about “compensation culture” and whether to do things or not. Much of this is whipped up by the papers, who don’t report the outcomes. A good example of this is the failure of a claim against the parent of a child hosting an end of GSCEs party by one of the guests.

One of the guests brought a large paddling pool to the party, and, a modest quantity of alcohol was consumed by the children under supervision. The children were boisterous but not drunk. The parents called the children into the house to eat, partly to calm things down. While they were there one of the boys went out, ran across the garden and attempted a belly-flop into the pool. Sadly, he misjudged the angle so as to end up carrying out more of a dive motion and struck his head on the bottom of the pool.

The claim was dismissed. Clearly, the parents owed a duty of care to the young guests, which was the same that a reasonably careful parent would show for their own child. The Judge said this required them:

“Reasonably to keep an eye on what was going on; to keep abreast of what people were doing; if matters were getting out of hand, to intervene in a reasonable manner, though not so as to spoil the party.”

The Judge confirmed the parent was not in breach of the duty of care owed to the injured boy. It was unrealistic to say that the presence of the paddling pool created a foreseeable risk of significant injury. The risk of diving into a paddling pool was obvious. The parent did not have a duty to instruct a child aged 16 about an obvious risk. Everyone was sympathetic to the boy, but that didn’t make him entitled to money to compensate him for his own foolishness. That seems common sense,

For assistance with Dispute Resolution please contact Neil Howlett in Frome or Andy Hambleton in Wells

Unregulated Will writing services

There has been widespread dismay amongst consumer groups at the Justice Secretary Chris Grayling’s rejection of the recommendation by the Legal Services Board that Will writing should be regulated – see our earlier article for what that means.  The LSB had recommended regulation in a report submitted in February 2013 because of concerns about the quality, sustainability and lack of consumer protection. Grayling accepted the need for improvements but is quoted as having said “further efforts should be made to see if measures can be made more effective before resorting to reservation”. In contrast one commentator who campaigns for access to justice wrote that he had “not only ignored overwhelming evidence of significant consumer detriment but cocked an almighty snook in the direction of the broad consensus calling for regulation.”

The consumer group Which? says on its website: “Will writers are an alternative to solicitors, but unlike solicitors they don’t have to be qualified or regulated.” and “The main benefit of going to a solicitor is that you can discuss face to face what you want the will to achieve.” In addition, solicitors are qualified and regulated so “If something goes wrong, you or your dependants have access to redress through the relevant body’s complaints service and compensation fund.” The Citizen’s Advice Bureau also says “It is generally advisable to use a solicitor or to have a solicitor check a will you have drawn up to make sure it will have the effect you want. This is because it is easy to make mistakes and, if there are errors in the will, this can cause problems after your death. Sorting out misunderstandings and disputes after your death may result in considerable legal costs, which will reduce the amount of money in the estate.”

Unregulated Will writers may be incompetent, untrained and uninsured. An article in the Guardian “Writing a will – the right way”  in February 2013 said: “Alternatively, you could hire a low-cost will writing service. But be careful if you do, because unregulated will writers have been accused of ripping off consumers”. The same article comments “Using a qualified solicitor may be cheaper than you think.” Some Will writers advertise headline cut price offers, but may charge for additional services and end up being more expensive than solicitors.

Lawyers at Harris & Harris are not just qualified and regulated, they have years of specialist experience, and are members of specialist bodies like STEP.

Contact  Annemarie Swainson or Joshua Eva

Rough for the smoothie; or not so Innocent ?

When advising on Intellectual Property Rights (IPRs) the one thing we always emphasise is to set out and document agreements from the start.  Anything else is a recipe for disaster either for the designer or the business commissioning the work. You might expect businesses with a high profile as innovative and efficient to get it right but here’s an object lesson in how to get it wrong.

Everyone knows the wunder-brand Innocent and their iconic logo of the sketched apple face and halo.  This was created in 1998 in a eureka moment of “back of the envelope” genius during a brainstorming session involving the designer and the three friends who founded Innocent.  The company owned by the designer (Deepend) and Innocent (Fresh Trading) had drawn up heads of terms by which design services would be provided in return for shares in Innocent.  So far so good, but then it all went wrong.

The parties couldn’t agree whether the heads of terms were ever agreed and neither could produce a signed document.  Then Deepend went into liquidation.  Innocent never allocated any shares nor paid anything.  Not so good, and about to get worse.

Innocent did quite well; they obtained a Community Trade Marks (CTM) for the logo.  In 2007 the liquidator of Deepend assigned the copyright in the “halo” logo to a Mr Andrew Chappell, who assigned it to a company which applied to cancel the CTMs on the grounds that it had the copyright in the original “halo” design.

The tribunal which determined CTM disputes (OHIM) concluded that copyright subsisted in the original “halo” logo, as it was a commission Deepend were the owners of the copyright, in the absence of any written assignment Deepend, Innocent’s CTM infringed the “halo” design, so were cancelled.

OHIM also rejected arguments that in these circumstances, where the business had used the logo without complaint for a decade, that it had acquired all rights by an equitable assignment, or that there was an implied term requiring assignment of the copyright to give commercial effect to the agreement.  Such arguments have succeeded in the English courts, but Innocent have a difficulty that even if there was an agreement they didn’t comply with their side of it – in short, they never paid.

This isn’t the end of the case and you won’t see the Innocent logo disappear from the shelves soon. Innocent (now owned by Coke) has made enough money to pay lawyers to appeal.  However, even if it succeeds it won’t recover most of those costs, management time will have been diverted and business planning disrupted.  Usually big share sales include warranties about the ownership of IPRs.  If the founders gave such warranties that could be costly for them.

Posted 8th May 2013

For advice on Intellectual Property contact Neil Howlett

What happens to your virtual life after you die?

With so many of us operating smart phones and tablets, and having social media profiles and online accounts, many more of us are leaving behind not only physical and monetary assets, but also a wealth of assets accumulated in cyberspace. Until recently most of this digital data would have been on a physical hard drive but much of it is now distributed through a “cloud”. These are your “digital assets”.

With data located in a “cloud” ownership is not always obvious. This will usually be dictated by the terms of use of the account or service through which the data is stored, to which the user (the deceased) had agreed when they signed up to the account or service. Do you always meticulously read the terms and conditions of use before ticking the box to say “I have read and accepted the terms and conditions”?

Many digital assets may have little or no monetary value, but accounts commonly contain photographs, personal communications and data of a highly confidential and sensitive nature. You may want to pass some of this to loved ones, or be concerned about the security of this data. If nothing is done, will your virtual self continue “living” in cyberspace? There can also be digital assets that are crucial to the running of a business (e.g. a business website) which must be passed on.

If your Will is silent about any digital assets, they are likely to fall into your “residuary estate” (i.e. any assets not specifically bequeathed in your Will). Your executor will have a legal responsibility to deal with these assets, but without your usernames and passwords, it could be impossible to gain control of your digital assets and distribute them. Think about what will happen to your digital assets after death. An obvious solution may be to maintain a list of usernames and passwords for the benefit of your executor. However, in light of the risks associated with identity theft and other cyber-crime one must be vigilant about the security of such data. Some websites do offer termination of your account after a prolonged period of inactivity, or for you to designate who should be able to access your account after your death.

Google will allow users to decide what happens to their data after they die or become inactive online and others will follow. You still need to think about it and go through the process online. Your Will should not contradict such preferences, and ensure that a list of the accounts you hold is stored securely with your Will.

For advice about your Will, visit our Wills, Probate and Trusts department page

Contact Annemarie Swainson and Joshua Eva


Disabled employees can be sacked for poor attendance

Some employers think it isn’t possible to terminate the employment of an employee with a poor employment record if they are disabled. That’s not true. A recent case confirms that and illustrates how it can be a fair dismissal.

The employee had a long record of intermittent short term absences based on back problems, chest problems and stress-related conditions which were manifested as anxiety, panic attacks and sleep disorders. His absences were managed under a strict short-term absence policy. Meetings were postponed or held in his absence when he failed to attend. He was given a first written warning under the short-term absence policy and transferred to the employer’s long-term absence procedure. After an Occupational Health report the employee was asked to complete a “stress at work” questionnaire. He never did, despite a reminder. At a final stage meeting under the long-term absence procedure the employer took the view that the employee’s continued absence was unfair to colleagues, the department was under pressure, and there was a possibility the employee might not in fact return to work.

The employee’s claim for unfair dismissal was rejected. The Employment Tribunal and Employment Appeal Tribunal ruled that he had not been subject to discrimination on grounds of his disability. The employer had a duty to make reasonable adjustments but none had been suggested by the employee. It would not have been a reasonable adjustment for the employer to exempt the employee from its absence management policy.

Every case turns on unique facts. In this case the employer had followed set procedure which was strictly applied to all employees. An error in applying the policies did not invalidate them. Even the decision to terminate when the OH assessment said the employee might be ready for a phased return in a couple of months was upheld on the basis this was only a possibility. The EAT noted that the tribunal had found that “this was not a borderline case” as the employee’s absence record was “severely poor”; he had been absent for 100 days in the previous eight months.

The lessons? For employers it is to have policies to manage absences and to apply them consistently. For employees who have a disability it is to challenge the employer with practical reasonable adjustments that could overcome the effect of the disability (EAT) which then places the burden on the employer of justifying why they would not be reasonable or effective.

Equality Act 2010 places an employer under a duty to make reasonable adjustments where a provision, criterion or practice (PCP) applied by the employer, or a physical feature of the workplace, put a disabled person at a substantial disadvantage in comparison with persons who were not disabled. The duty is “to take such steps as it is reasonable, in all the circumstances of the case, for the employer to have to take in order to prevent the provision, criterion or practice, or physical feature, having that effect”.

Jennings v Bart’s and the London NHS Trust UKEAT/0056/12

For advice on Employment Law contact Neil Howlett or Andy Hambleton.

Late Payment of Commercial Debts

In tough times cash is king, which means efficient credit control. The Late Payment of Commercial Debts (Interest) Act 1998 has always been a useful tool. It gives a statutory right to interest of 8% over the current base rate, plus a right to charge a fixed sum for your costs of recovery (currently £40 for a debt of less than £1,000). These are good rates. You don’t have to go to court to get them. You don’t even have to have this written into your Terms & Conditions – if you have a lower rate of interest in these you may not be able charge the Late Payment Rate. Businesses are entitled to claim interest and charges when a debt remains unpaid after the date specified on the contract, or in the absence of a contract, 30 days after the delivery of the goods or service.

From 16th March 2013 the Late Payment legislation has been reinforced. For contracts entered into on or after that date with non-public authority purchasers, there will be a maximum payment period before Late Payment Interest of up to 60 days. Where the purchaser is a public authority purchaser, the maximum payment period is 30 days. These periods run from the later of the receipt of the supplier’s invoice, or the receipt of the goods and/or services. It is possible for the parties to agree a longer period or a trigger based on the purchasers confirmation the goods and/or services are in accordance with the contract, but these variations must not be ‘grossly unfair’ to the supplier. The aim of these changes is to put pressure on payers. The intention is that most will abide by these deadlines and not take the risk that seeking longer terms may be found to be unfair.

Also, where the supplier’s actual costs in recovering the debt exceed the fixed charge sums the supplier will have a right to recover the reasonable costs of recovering any debt.

You can find the new regulations and helpful guidance on operating them, including online interest calculators, and templates at Pay on Time

Finally, for those who wonder about the impact of the European Parliament and Council, the recent changes implement EU Directive 2011/EU.

This note is for information only, the Late Payment regulations have exceptions and you should look at the guidance or take advice before using them.

For further help contact Neil Howlett in Frome or Andy Hambleton in Wells

The value of a professionally drafted Will, and of keeping it up to date

The widely publicised case of Ustinov v Ustinov highlights the disastrous consequences for the family of a deceased person who has failed to maintain a valid Will. The family of Peter Ustinov, who died in 2004 in Switzerland, have become embroiled in lengthy and highly expensive litigation. Although Ustinov had made a Will in the 1960’s, it was written in pencil and found by the Swiss Courts to be invalid. As such, Ustinov’s multi million pound estate passed via Swiss law to his third wife. His children have sought to obtain a share of his estate, but so far their efforts have proved fruitless, and having spent many thousands of pounds in legal costs, Ustinov’s son Igor is reported to be close to bankruptcy. Aside from the financial implications for Ustinov’s offspring, the strife and ill feelings experienced by the family are a salutary reminder of the importance not only of having a Will prepared by a properly qualified professional, but also of the importance of reviewing one’s Will regularly and ensuring that it continues to reflect one’s wishes, as circumstances change over time.

With a simple Will prepared by one of our specialist solicitors costing only £228 (including VAT), and an update to your existing simple Will from as little as £60 (including VAT) you may be surprised at how inexpensive and easy it is to ensure your family will not inherit a legal nightmare in the same way as the Ustinov family.

To read more about the Ustinov case, click on the following link to the Independent Newspaper article:

If you would like to make a Will or update your Will, see our Wills, Estates and Trusts page:-

Wills, Probate + Trusts

Clearing snow and ice – is it dangerous?

Of course it is – you might slip over. However, if you are prepared to take that risk and do it sensibly you shouldn’t be deterred from being helping your community by a fear of being sued. There is simple guidance from the government.  If it is your property you may have a liability if you don’t clear it.

The Institution of Occupational Safety and Health, the largest health and safety membership organisation in the world says, “As a general rule it’s sensible for firms to consider the risks and take reasonable steps to prevent accidents from happening. If this means gritting outside the boundaries of your workplace, then it’s better to do that than to have people slipping over or involved in car crashes on your doorstep.”

If you want to assess the risk it’s always worth knowing your enemy. After the 2009 snows a firm of Claimant Personal Injury Solicitors doing the dreaded ‘No Win No Fee’ claims put out a leaflet about snow and ice claims which described the possibility of any claims against people clearing the highway voluntarily as an “urban myth”.

In legal terms there is a theoretical basis for a claim in Negligence, but it would only be sustainable is you created a new risk. Following the government guidance should ensure you don’t. Even if you did the Compensation Act 2006 says that a court may have regard to whether “imposing an obligation to take steps might prevent an activity which is desirable from taking place (either at all, to a particular extent, or in a particular way), or might discourage persons” from activities that were positive. Clearing snow and ice is exactly the kind of activity that is aimed at.

In Frome the Town Council has taken a pro-active approach and has a Snow Patrol.

This post is provides information not legal advice on any particular situation on which you should act.

Contact Neil Howlett or Andy Hambleton