Season 2.4: How to deal with copyright & trademarks? | Employment Lawyer in Your Pocket

blackadders logoSeason 2, Episode 4: Simon and Jack are joined by Blackadders, Senior Solicitor in Corporate & Commercial law, Ruth Weir.  They respond to an email by the BIG Partnership ‘Who owns intellectual property created during employment?’. They cover Copyright, Trademarks and Rights to IP. In addition to this Ruth gives her Top Tips. Which “poem” did you like best and do you think Ruth will ever return to ELiYP?

We would be delighted if you would be able to provide us with some feedback by leaving a comment at the bottom of our podcast page. Thanks for listening!

You can listen to the latest episodes here:
Season 2.3: How to deal with stubble and tattoos?
Season 2.2: How to give a good reference?
Season 2.1: How to be a good witness?

You can also download this podcast free on iTunes.

The Blackadders employment team
Scottish Legal Awards Employment Team of the Year 2016 

Get in touch with the team on twitter:
@EmpLawyerSimon
@EmpLawyerJack
@EmpLawyerRich

#ELIYP

Getting a ticket from a private car park – Do you need to pay?

A lot of people think that if you park your car in a private car park owned by, for example, the local supermarket or a big hotel, and you get a penalty ticket due to overstaying, or not being a customer, you don’t have to pay it.  “Only the state can fine people”, they say, “and since when is Morrison’s the state?”

You may also hear: “There’s no law of trespass in Scotland.  I can’t charge you £85 just because you walked into my front garden, can I?”  Or: “If this is legal, what’s to stop them charging you a million pounds?”  So the advice about the penalty ticket is – bin it.  But is that correct?

Normally a matter as trivial as an £85 parking ticket would barely make it to the Sheriff Court, and we would be left guessing what the law on the matter might be.  But, extraordinarily, a case deciding this very point went all the way to the Supreme Court in 2015, and the judgment makes for interesting reading.

The case concerns a Mr Beavis, who left his car in the car park attached to the Riverside Retail Park in Chelmsford. There were about 20 signs at the entrance to the car park and at frequent intervals inside it, all large and prominent, so that any reasonable user of the car park would have had a fair opportunity to read them.  The wording, mostly in black print on an orange background, was:

“2 hours maximum stay.  Failure to comply with the following will result in a Parking Charge of £85.  Parking limited to 2 hours (no return within 1 hour).”

The court held that this amounted to a contract between Mr Beavis and the car park.  Mr Beavis had permission to park his car in terms of the notice posted at the entrance, which he accepted by entering the site. He was well aware of the terms when he parked, or ought to have been aware of them. Those terms were that he would stay for not more than two hours, and that if he overstayed he would pay £85.

Mr Beavis’ solicitors accepted that there was a contract, but argued that the £85 charge fell foul of a well-established rule that “penalty clauses” in contracts are unenforceable.  These are clauses in contracts which say that in the event of a breach, the defaulting party will pay some exorbitant amount of money to the other party, out of all proportion to any loss which can have been suffered.  The car park, they said, had not suffered any loss at all in reality, so the purported charge was simply intended as a punishment, and was an unenforceable penalty.

The Supreme Court disagreed.  They thought that it was perfectly reasonable for the car park to discourage inconsiderate motorists from occupying parking spaces for too long, thereby reducing the space available to other members of the public.  Also, the charges were necessary so that the car park could make a profit and be able to stay open.  In these circumstances the car park had a legitimate interest in imposing the £85 penalty, and this was the only reasonably practicable way to enforce its interests.  £85 was not out of the way in all the circumstances, bearing in mind the usual level of penalties imposed by traffic wardens on public streets.

So, Mr Beavis had to pay up.  Fortunately for him, this was a test case for the car parking industry and it had been agreed that there would be no cost implications for him in taking the case to the Supreme Court, or it would have been the most expensive parking ticket in history.

In April this year a similar case appeared in the humbler surroundings of Dundee Sheriff Court.  In this case a Ms Mackie persistently parked in a private car park outside a relative’s house.  Signs showing the parking terms and warning her of the penalties for overstaying were displayed prominently.  She ignored the signs and binned the penalty notices as she received them, eventually racking up a total of £18,500 in penalties.  Sheriff George Way found her liable to pay the car park this sum, on the same reasoning as the Beavis case.

The correct legal position is therefore that if you drive to a private car park where the terms and conditions are clearly displayed along with a warning of the penalty charges, and you park there, you may be agreeing to those charges.  So long as the penalty charge is not unreasonable, the likelihood is that will be liable to pay it.

Of course, the situation would be different if the terms and conditions of parking were not clearly displayed, or if the penalty were a ridiculously huge sum.  Also, intriguing legal arguments could still spring up in other circumstances over whether a landowner has a “legitimate interest” in imposing a penalty on trespassers.  However, in most cases, it seems that if you get a private parking ticket the “just bin it” advice is not good.

For more information or advise on this, contact the Dispute Resolution team at Blackadders.

Richard Godden, Dispute Resolution
Partner
@The_PIMan
www.blackadders.co.uk

 

 

I’m all about the base, database, no trouble

By now everyone will have seen the headlines and heard the acronym many times, but in case you’ve been camped in a remote jungle for the last few months, major changes are coming to data protection rules in Europe through GDPR.  The General Data Protection Regulation (or GDPR) will be implemented into the UK through the Data Protection Bill 2017, which is currently going through the parliamentary processes.

What Changes?

Under the new rules, data subject will get enhanced rights providing increased control over the collection and use of their personal data.  There will also be further obligations on data controllers with a move towards greater accountability and additional record keeping.  However, the overall principles remain the same and the changes are essentially incorporating what could currently be described as “best practice”.

Does It Really Affect Us?

Recent figures suggest that a substantial number of organisations do not think they will be actually affected by the rule changes and (un?)surprisingly 1/3 are unsure on where their data is stored.  The reality is, however, that from 25 May 2018 any organisation that processes personal data will require to be GDPR compliant.  “Processing” is defined very widely and includes holding, collecting, recording, amending, storing, organising, altering, using and deleting personal information which essentially means anything done with personal data will be covered.

A further substantial change, and certainly the one that has made most headlines, is the increase in potential fines to £18m or 4% of global turnover (well up on the current £500,000 level).  It is important to note that this is the maximum level of fine, so not all businesses will be hit with that level of penalty.  But it is clear that the days of budgeting to cover any potential data protection fine are gone and businesses need to be looking at getting GDPR compliant.

Steps to Take

It is clear that this is not something that can be ignored or even pushed back to next quarter.  Organisations should start planning now and allocate resources (financial and organisational) to reviewing their databases.  The following are steps which can be taken and should help in becoming GDPR compliant.

Data Audit

To fully comply with the new accountability and record keeping requirements, organisations will need to do a data audit to understand personal data currently held.  It is important to identify all data sets held and organisations should consider looking at (i) what data it has, (ii) how it comes into the organisation, (iii) how it is used, (iv) who it is shared with and (v) when it is deleted or destroyed.  All other steps will follow on from this so it is a critical step in getting GDPR compliant and should be started as soon as possible to give time for the other steps to be completed prior to May 2018.

Basis for Processing

Once an organisation has completed a data audit, it should consider the legal basis for processing information.  Under data protection rules, there must be a lawful basis for all processing (either consent, contractual necessity, compliance with legal obligation, vital interests, public interests or legitimate interest).  Different individual rights will arise depending on the basis relied upon, so careful consideration should be given to which basis is best for an organisation.  As a general rule, consent should not be relied upon if possible to avoid any issues if an individual withdraws consent midway through processing.

Privacy Notice & Policies

The privacy notice will be one of the key pieces of information to be provided by any data controller, setting out what data is collected, how it is processed and who can access it.

Additionally, organisations will need to review policies and procedures to make sure they can respond to any requests within the given timescales (i.e. one month for access requests) and to monitor any breaches, deal with notifications within the short timeframe and mitigate any impact on data subjects.

Educate

Although final important step for initial compliance is to educate; there is little point getting all rules and procedures in place if those within the organisation are not aware or do not follow them.  Organisations should make sure all staff are aware of the relevant rules and the rules should be actively enforced.  Organisations might consider having someone designated to deal with data protection so staff know where to go to ask questions and to get answers.

Regularly Review

So it’s not strictly a point for initial compliance with the new rules but it is important going forward, an organisation will not be able to just review once and never again.  The above steps should be done regularly to see if there are any issues needing corrected or gaps needing plugged and check the current procedures in place remain fit for purpose.

Getting Help

For more information or help getting GDPR compliant, contact the Corporate Team at Blackadders.

 

Ruth Weir, Corporate & Commercial
Senior Solicitor
@CorpLawyerRuth
www.blackadders.co.uk

Season 2.3: How to deal with stubble & tattoos? | Employment Lawyers in Your Pocket

blackadders logoSeason 2, Episode 3: Simon & Jack answer a tweet from Insights  ‘Can employers insist on male employees being clean shaven? What about tattoos?’. They don’t hold back addressing both issues as well as giving examples of previous cases of discrimination. In addition to this there is a few dodgy impersonations to keep you amused! Can you guess the Harry Potter character that Jack couldn’t?

We would be delighted if you would be able to provide us with some feedback by leaving a comment at the bottom of our podcast page. Thanks for listening!

You can listen to the lastest episodes here:
Season 2.2: How to give a good reference?
Season 2.1: How to be a good witness?

You can also download this podcast free on iTunes.

The Blackadders employment team
Scottish Legal Awards Employment Team of the Year 2016 

Get in touch with the team on twitter:
@EmpLawyerSimon
@EmpLawyerJack
@EmpLawyerRich

#ELIYP

Why Lord Sugar isn’t sweet when Apprentices Mis-sell.

For those of us still hooked on the TV show, “The Apprentice”, you are bound to have noticed that nothing invokes the scorn of Lord Sugar more than when candidates describe their goods or services with a dash of creative licence. Whether it be organic burgers that aren’t so organic or French mussels which are more at home in Brighton than Brittany there is a real legal reason why Lord Sugar has to come down hard when candidates push the truth a little too far.

The primary legislation governing this area is called the Consumer Rights Act 2015 and this lays out the various rights consumers in Britain enjoy when buying goods and services. When it comes to the description of goods, the law requires that every contract is deemed to have an implied term that the goods will match the description given by the seller. It doesn’t matter if the goods were available for inspection or if the seller later amends the description; if the original description is false then the buyer has certain legal rights.

In general these rights entitle a consumer who has been mis-sold a product to either reject the goods (subject to certain time-scales); obtain repair or replacement of the goods; or, have the purchase price reduced to reflect the mis-description.

The law further protects consumers by presuming that any mis-description discovered by the consumer within 6 months from when the goods were delivered existed at the time when the product was originally bought and it is up to the seller to prove otherwise.

In addition to these civil legal rights that consumers enjoy, Trading Standards Officers also have the power to bring quasi-criminal proceedings against those who have deliberately or recklessly mis-sold goods and services. Accordingly, it is hardly surprising that Lord Sugar keeps a careful eye on the activities of his candidates and hopefully this reinforces the point that mis-selling goods is no light matter.

If you have been mis-sold goods or services or have any questions arising from the contents of this blog please contact our Dispute Resolution Team who will be happy to assist you.

Alastair Johnston, Dispute Resolution
Senior Solicitor
@BlackaddersLit
www.blackadders.co.uk

 

 

 

Lord Alan Sugar: Photo by James Cronin, www.flickr.com, 2009

Season 2.2: How to give a good reference? | Employment Lawyer in Your Pocket

blackadders logoSeason 2, Episode 2: Simon & Richard answer a tweet from Condies Accountants & Advisors ‘What advice would you give to employers if asked by an ex employee for a reference?’. They give examples of accurate, inaccurate and misleading references. If that isn’t enough for you there’s also a bit of singing and James Bond to keep you entertained!!

We would be delighted if you would be able to provide us with some feedback by leaving a comment at the bottom of our podcast page. Thanks for listening!

You can listen to the lastest episode here:
Season 2.1: How to be a good witness?

You can also download this podcast free on iTunes.

The Blackadders employment team
Scottish Legal Awards Employment Team of the Year 2016 

Get in touch with the team on twitter:
@EmpLawyerSimon
@EmpLawyerJack
@EmpLawyerRich

#ELIYP

Blackadders Rural Team Recap: RSABI Great Glen Challenge 2017

Challenges are often set to test the limits of one’s mental and physical capabilities. By pushing the limits, there is often great gratification and relief in conquering difficult circumstances. As we wrote earlier in the year, members of Blackadders Rural Team completed the Great Glen Challenge on the beautiful West Coast of Scotland from Fort Augustus to Fort William on 25 August 2017.

As the event has passed, we look back at the success of not only our competitive prowess but our fundraising effort. Challenges occurred before the event itself, as the team faced an initial hurdle with Captain Hazel Anderson succumbing to unfortunate sickness was to be unable to race. Luckily, without missing a beat, Blackadders Rural intern and now Trainee Solicitor, Blair Duncan, stepped into the shoes of Hazel and took the final place in the team. Blair proved an excellent addition and slotted into the Walking event, moving Aberdeen’s Ellen Eunson to compete in the Kayak section. Elizabeth Wilson kicked off the event for the team with the Mountain Biking section, and the team (including their support driver Rab Eunson and team mascot Scooby the chocolate labrador) all meeting at the finish line to see Dave Halligan complete the final leg of the Running race.

The team’s efforts led to placing a respectable 19th overall in the competition and were glad on all fronts to see the finish line. After the event, the team was glad to mingle with other teams at the following reception and award-giving along Neptune’s Staircase in Fort William.

As the team has mended their muscles from their events, we note that we could not completed the Great Glen without the generous support of our sponsors and donors. This of course was coupled kind words of encouragement, near and far.

In terms of fundraising, and as RSABI is a charity that aids those facing hardship in agriculture across Scotland, a cause that our department holds very dear to our hearts, and we are grateful that you helped us achieve our goal. The final tally for our fundraising was £1,535, which was £500+ above our set goal. In total, counting gift aid, Team Blackadders raised £1,831.25 for RSABI, which we believe is a huge success.

At present, there are no further athletic events planned for the Blackadders Rural team, however we feel confident that if called upon, our will, determination and success in the Great Glen Challenge would place us well in any challenge across the Firm.

This Challenge, of course, comes with the huge backing of the Blackadders Rural department with Partner Petra Grunenberg, Directors Gail Clarke and Gillian Gibbons who though were not in Fort William, were behind the team all the way.

Thank you to all those who supported us across our endeavour in this RSABI Challenge.

David Halligan, Trainee Solicitor
@RuralDavie
www.Blackadders.co.uk

 

 

 

Why preventing tax evasion is now on the board agenda

 

The UK’s Government has again been busy creating new corporate crimes to help enforce its policy objectives.  This time it relates to tax evasion, or more accurately “failure to prevent the facilitation of tax evasion”.  Two new offences came into force on 30 September 2017 in the Criminal Finances Act 2017 – one for UK tax evasion and one for foreign tax evasion. As the HM Revenue & Customs (HMRC) press release says: “It is already a crime to evade tax, or deliberately help another person to do so, but on behalf of the majority of taxpayers who pay what is due, the UK government is taking an even firmer stance on corporate fraud in a move designed to drive a change in corporate culture.” Much like anti-bribery and corruption rules your company’s defence is to prove you have reasonable prevention procedures in place. HMRC has provided guidance  on this, which this blog summarises for you.

Who is this relevant for?

All companies and partnerships in all industries will need to put some prevention procedures in place. Higher risk sectors e.g. accountancy, tax advice, wealth management and legal services will need to do more.

What are the offences?

There’s three parts: (1) a taxpayer commits criminal tax evasion, (2) a person who is acting on behalf of your company or partnership commits an offence by “deliberately and dishonestly” helping the taxpayer evade tax (“facilitation”), and (3) the company failed to take reasonable steps to prevent this criminal facilitation.  Part (3) is the corporate offence and the only part that’s new. For the UK tax evasion offence the company or its business could be based abroad. For the foreign tax evasion offence only the company, its business or some of its staff needs to be based in the UK. It doesn’t matter whether the senior management / board were aware of the facilitation or not.

What’s tax evasion (illegal) and what’s tax avoidance (legal)?

This is not an easy question as the line is increasingly blurred but the HMRC guidance provides some examples of criminal facilitation of tax evasion:

·         A mid-size car parts maker operating in the UK and Europe, entered into a sub-contracting arrangement with an UK distributor. The senior managers of the UK distributor created a false invoicing scheme with the assistance of a purchaser, allowing the purchaser to evade UK taxes due on its purchase of the car parts in the UK.

·         As part of a large transaction an employee of a UK-based multinational bank knowingly referred a corporate client to an offshore accounting firm with the express intention of assisting the corporate client to set up a structure allowing the client to evade foreign income tax.

Existing procedures won’t cut it
Companies and partnerships who operate in the UK or deal with UK tax will need to put in place yet more compliance procedures – HMRC is very clear that your existing anti-bribery and corruption, fraud prevention or financial crime prevention procedures (if applicable) will help but aren’t enough on their own.

So what do you need to do? According to HMRC guidance every company and partnership needs to firstly undertake a risk assessment of the products and services it offers, as well as internal systems and client data that might be used to facilitate tax evasion. This includes “sitting at the desk” of employees and other associated persons, considering the motive, means and opportunity for facilitating tax evasion. When doing this you should consider typical fraud “red flags”, for example:

  • Are there staff who refuse to take leave and do not allow anyone else to review their files, or are overtly defensive over client relationships?
  • Do existing processes ensure that for higher risk activity at least a sample of files are routinely reviewed by a second pair of eyes?

Then consider tailoring existing processes and procedures accordingly to prevent and detect potential tax evasion facilitation – this could include:

Having a commitment to preventing the involvement of those acting on your behalf in the criminal facilitation of tax evasion, demonstrated by issuing a prominent message from the board of directors, partners or leadership team against all forms of tax evasion;

  • Having terms in contracts with employees and contractors requiring them not to engage in facilitating tax evasion and to report and concerns immediately;
  • Providing regular training for staff on preventing the facilitation of tax evasion;
  • Having clear whistle-blowing procedures;
  • Ensure your pay and bonus policy/structure encourages reporting and discourages pursuing profit to the point of condoning tax evasion;
  • Having regular reviews of the effectiveness of prevention procedures and refining them where necessary; and
  • Monitoring and enforcing compliance with prevention procedures.

These are merely the basics for SMEs and need to be tailored to the organisation’s specific risks. Larger or higher risk companies and partnerships will need to do more on top of this to comply but may have guidance from their sector regulator to help them.

When do we need to do this?

 HMRC is expecting you to be doing your risk assessments and initial staff communications now and to have a clear timeframe for putting the other procedures in place.

Getting help

For more information or help with complying contact the Corporate Team at Blackadders. Thanks to Sara Scott, our Regulation & Compliance Manager for input to this article.

 

Campbell Clark, Partner – Corporate and Commercial @CampbellJSClark

www.blackadders.co.uk

 

 

Season 2.1: How to be a good witness? | Employment Lawyer In Your Pocket

blackadders logoSeason 2, Episode 1: Simon and the Jack answer a tweet from Fairways HR ‘How to be a good witness?’ What makes a credible & reliable witness? Can you guess the Family Guy witness? Listen to find out more on how to be a good witness.

 

We would be delighted if you would be able to provide us with some feedback by leaving a comment at the bottom of our podcast page or by responding to this e-mail. Thanks for listening!

You can also download this podcast free on iTunes.

You can listen to all of Season 1 here:

Step 8: How to Handle A Disciplinary Appeal Hearing?
Step 7: What Happens If An Employee Fails To Attend A Disciplinary Hearing?
Step 6: How Do I Communicate A Fair Dismissal?
Step 5: What Is The Role Of HR In A Formal Meeting?
Step 4: How To Conduct A Disciplinary Meeting
Step 3: How To Prepare For A Disciplinary Meeting
Step 2: How To Conduct An Investigation At Work
Step 1: Where Do I Start When Managing Employees?

The Blackadders employment team
Scottish Legal Awards Employment Team of the Year 2016 

Get in touch with the team on twitter:
@EmpLawyerSimon
@EmpLawyerJack
@EmpLawyerRich

#ELIYP