Counting Down the Days

The UK Government announced today that the 90-day collective consultation period is to be cut to 45 days from April 2013.

Currently when an employer intends to make at least 100 employees redundant at any one establishment, the redundancy consultation must begin at least 90 days before the first of the dismissals takes effect.  The UK Government has stated that this change from a 90-day period to a 45-day period is intended to “help employees and businesses.”

At first glance, it is difficult to understand how this change will assist employees.  Although a shorter period of consultation might reduce the level of uncertainty for at-risk employees during a redundancy exercise, the shorter period will more importantly result in there being less time for trade unions and employees to consult with employers and find alternatives to redundancy.

By comparison the benefit to employers is more obvious.  A shorter consultation period will allow for employers to shed loss-making areas of the business more quickly and hopefully improve the likelihood of existing employees retaining their employment.  This should result in a greater opportunity for businesses to recover from a large-scale redundancy exercise.

Perhaps however the unintentional effect of this legislative change will be noticed when the fairness of redundancy dismissals are challenged at employment tribunals in the future.  The proposed change to the collective consultation period will not affect an employee’s ability to challenge the fairness of a dismissal.  However when considering the fairness of a redundancy dismissal, a tribunal may seek to focus on the quality of any collective consultation, rather than the length of such a consultation.

This legislative change is likely to heighten the importance of employers entering into meaningful consultation with affected employees before redundancies take effect.  Employers would be well advised to take legal advice before commencing a redundancy exercise in an attempt to limit the risk of a future finding of unfair dismissal.

Simon Allison
Partner – Employment Law

Let Me Put You in the Picture – Trade Marks Must Be Distinctive

A recent decision has confirmed that, in order for a trade mark to be registered, the mark must be distinctive and not merely descriptive of the goods and services to which it relates.

Getty Images, the global media giant, uses the mark “PHOTOS.COM” in connection with one of its websites.  In 2009, Getty attempted to register “PHOTOS.COM” as a (European) Community Trade Mark, but the application was refused on the basis that the mark was devoid of distinctive character.

Following an unsuccessful appeal at the OHIM (the EU trade mark office), Getty took the matter to the General Court of the European Union.  The court has backed the stance taken by the OHIM and so Getty will not be able to register the trade mark.

In my view, this is a sensible decision and I would have been surprised at any other outcome.  Members of the public should be able to distinguish the goods and services covered by a registered trade mark from those provided by another entity, and affording registered protection to such a generic term would have eroded that fundamental principle.

If you are developing a brand, take advice early on to ensure that it can be effectively protected and exploited.

Kirk Dailly
Business – Corporate & Commercial Law