Does quality matter?

 

A novel argument was put to the Court of Appeal recently in defence of a claim of trade mark infringement. The case involved the prosecution of an individual who pirated copies of DVD's and CD's.

The accused's defence was that the copies of the third party logo's were so poor that they did not amount to trade mark infringement. The argument being advanced was that no-one would think that the origin of the material was the trade mark owner and therefore "use of the trade marks was not likely to jeapordise the guarantee of origin" that the owners logo would convey.

The Court rejected this argument on the grounds (amongst others) that to accept the argument would assist the vice of the counterfeiter who sells goods as "genuine fakes".  

 

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Categories: Employment
Posted by Andrew Sutton on Friday, October 31, 2008 10:57 AM

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Are you a Freelancer in danger?

 

A recent High Court ruling has provided a precedent that individuals who offer their services to third parties as freelancers may be pursued by HMRC to recover tax as if the freelancer was an employee of the organisation that they were/are providing work for. 

In short, an IT freelancer was providing services to a well known motoring organisation through his company - a common mechanism for the IT industry and most are aware of the IR35 rules introduced some time ago by the Revenue. He had little other income and was held by the Special Commissioner of HMRC to have been integrated into the company's business and had a role similar to a professional employee. On that basis he had to account for tax and National Insurance as an employee, amounting to some £99,000.

On appeal, the High Court affirmed this view based on the facts of the relationship, seemingly ignoring the parties intentions and the contract agreed between them. 

As a result, the individual was liable to pay £99,000 tax and national insurance that he would have had to pay as an employee.

We have yet to see the full judgment on this case but the effect of the judgment is likely to worry a number of freelance IT,and other, consultants.

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Posted by Andrew Sutton on Wednesday, September 10, 2008 4:08 PM

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One in 10 employees hungover at work each month…

…chance would be a fine thing, but under the watchful gaze of the Partners here it is just not possible!!!

 

In all seriousness, a recent survey by Norwich Union Healthcare reported that almost a third of employees have turned up to work with a hangover.  15% of those questioned also admitted to turning up drunk at work!  One in ten said they had a hangover at least once a month.

 

This is potentially a health and safety issue in the workplace.  Thus employers need to be vigilant especially where employees operate machinery or drive vehicles both on site and in public as part of their job.  Employers have a duty under health and safety legislation to provide a safe work environment both to employees and to the public.  Therefore if you suspect that an employee is under the influence of alcohol (or other illegal substances) then employers should take steps.  Hungover staff are likely to be sleepy and unable to concentrate – which could mean endangering themselves and others.

 

Your response should be based on the level of risk.  Therefore if they operate machinery then you must have strict rules on turning up to work in a fit state.  Some industries have strict legislative duties regarding fitness for work.  If your staff drive as part of their job you should take action to prevent them doing so – it is widely reported that many breath test failures occur the morning after.

 Implementing a formal drug and alcohol policy is one solution or taking action under your disciplinary policy can be adequate.

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Categories: Employment
Posted by Kathryn Meir on Friday, June 27, 2008 6:05 PM

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How to avoid employing illegal immigrants??

You will have read in the press over the last few months the increase in the number of prosecutions of companies for employing illegal immigrants or illegal workers.  So how do you avoid this?

 

Well you should adopt a policy of not allowing people to begin work until you have sight of their original identification documents proving they are authorised to work in the UK.  There are two sets of documentation which are acceptable, known as Lists A and B - these can be found on the Home Office and Border and Immigration Agency website.  Those of you who have signed up to our documentation update service will already have had your documentation updated.

 

The reason there has been such a sharp rise in the number of company prosecutions and fines is because the Immigration, Asylum and Nationality Act 2006, which came into force at the end of February 2008 introduced new civil penalties and fines rather than just criminal penalties for employers of illegal workers.  The Border and Immigration Agency are tending (at the moment) to focus on restaurants and factories that tend to employ unskilled staff.

 

The level of civil penalty and fine is determined by the significance of the non-compliance, co-operation and illegal behaviour demonstrated by the employer. 

 

Overall the new Act should not radically change the current systems for checking new employee documentation other than there are a number of additional documents which can provide verification.  So if you have thorough procedures in place already then you should not be concerned about being investigated by the Border and Immigration Agency. 

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Categories: Employment
Posted by Kathryn Meir on Friday, June 27, 2008 6:03 PM

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National Staff Dismissal Register

This on-line database was established at the end of May 2008.  It is a privately run subscription service which has been set up to provide information about individuals who have been dismissed for theft or dishonesty.  Access is restricted to subscribing organisations only (despite the description "national register").

The database is not limited to those convicted of theft/dishonesty.  It will contain details of individuals dismissed for alleged stealing or fraud or for damaging the organisation's property even if there have been no criminal proceeedings.  In addition it will include employees who resigned before the disciplinary hearing.

Is there a need for such a register to protect future employers who otherwise may unwittingly recruit a dishonest individual?  Is this in the public interest and should there be a public register?  There is no publicly maintained register of people with criminal convictions which is available generally, although the Criminal Records Bureau can be consulted for details of criminal convictions in cases where a person will be working with children or vulnerable adults.

Is it right that this new database is not limited to those convicted in a criminal court following a fair trial?  Is it fair that a potentially innocent person may be deprived of their ability to earn a living by these means or have their job freedom severely curtailed?

What other steps can organisations take to protect themselves at the recruitment stage?  If references are requested, including from recent employers, how accurate or reliable are these?  Do they tell the full story or are references now usually written in bland terms to avoid any legal challenge by the subject?

Does the register give rise to concerns about data protection?  What if the information is inaccurate or the alleged offence cannot be shown to be substantiated?  Could this result in users of the register facing legal action by the individual?

Would your organisation support and make use of this new register?

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Categories: Employment
Posted by David Hardstaff on Friday, June 13, 2008 11:37 AM

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TUPE and Overseas transfers

For the first time an Employment Appeal Tribunal ("EAT") has considered what happens when a business is acquired by someone outside the UK. 

As a quick reminder, the Transfer of Undertakings (Protection of Employment) Regulations 2006  ("TUPE" for those that find the full title a bit of a mouthful!)  applies on the transfer of a business to another legal entity or when there is a change in a service provider. The aim is to provide certain protections to employees.TUPE itself does not address the question as to whether the business being acquired has to remain in the UK post transfer, even though TUPE does set pre-transfer conditions. 

The EAT was asked to consider a case where an Israeli- based entity acquired a UK based manfucaturer and relocated the business to Israel, making employees redundant in the process. Whilst on the facts the EAT did not have to directly decide on the question appealed to it, it's view, given at the request of the parties, was that TUPE can apply to transfers of a business outside the UK, irrespective of whether that transfer is within or outside the EU. This has been thought to be the case, but we now have some guidance on the issue albeit that the law in this area may be developed further. 

 
Those that have been through a TUPE process on sale or acquisition of a business or during service provision change will know that employee matters need to be considered carefully. In the case of service provisions it is always advisable to consider the end of the contract at the beginning and to put in place appropriate contractual procedures and indemnities to supplement the regulations. In the case of a business acquisition it is key to identify those employees who may transfer and consider the implications to the business if they do indeed transfer.    

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Posted by Andrew Sutton on Tuesday, June 10, 2008 10:36 AM

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New Corporate Killing Laws and Employee Charitable Fundraising

Employers are often asked by their employees to sponsor charitable fundraising events undertaken by their employees and an employer's "participation" is sometimes seen as a useful marketing tool. Often these events involve an element of risk, for example skydiving or abseiling. New corporate killying laws come into force on 6th April 2008 when the Corporate Manslaughter and Corporate Homicide Act 2007 comes into effect (www.justice.gov.uk/docs/guidetomanslaughterhomicide07.pdf).

Employers might unwittingly leave themselves exposed to liabilities under the Act if they take active steps to manage or organise these  events if a death occurs from a gross breach of a relevant duty of care. It follows that employers should ensure that they distance themselves from being seen as being involved in the management or organisation of such activities in case the activity is tracked back into being an employer activity where a duty of care arises.

Employers wanting to take adavantage of the marketing benefits of these activities by their employees need to be very careful in how they express the basis on which, for example, promotional material with their name or brand logos, are provided. 

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Categories: Employment
Posted by Christopher Gigg on Thursday, April 10, 2008 10:01 AM

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Ashton Bond Gigg is a Nottingham based law firm which specialises in dealing with transactional, advisory and dispute resolution matters for corporate and commercial clients over a broad range of subject areas and in dealing with private matters for high net worth individuals and trusts.

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