Having been introduced originally in 1999, the National Minimum Wage is affecting more businesses across the UK as the rates continue to rise.
The National Minimum Wage has risen nearly 17% since 2010 and is due to rise to £7.05 (for 21 to 24 year olds) from April 2017.
That increase doesn't taken into account the higher National Living Wage for workers aged at least 25. Introduced in April 2016, the current National Living Wage is £7.20 per hour and is set to rise to 7.50 per hour in April 2017.
With the current Chancellor targeting a rate of £9 per hour by 2020, businesses now more than ever should be ensuring that they are comfortable that their employees are being paid at least the minimum rates, especially in light of recent decisions from the European Court which have meant additional hours need to be included in the calculation (such a travel time for peripatetic workers).
Whilst disputes over wages should be discussed between the employer and employee initially, ultimately enforcement of the minimum wage (along with other statutory payments such as maternity pay) is the responsibility of HMRC. Disputes are often swiftly resolved as employers are quick to rectify their errors, but expect HMRC to increasingly use "name and shame" tactics to enforce compliance with the rules and raise awareness of employers' obligations.
More than 15,500 workers had to be paid back nearly one million pounds.
Excuses used by businesses for not paying the full basic wage included using tips to top up their pay, making reductions to pay for a Christmas party, or making staff pay for their own uniforms.
This article by the BBC highlights the need for all parties to a property transaction (whether residential property or commercial property) to take time to understand what is being transferred and on what terms. Generally, solicitors are not there to provide investment advice to their clients, but it is important that individuals and businesses understand the potential legal ramifications of a leasehold arrangement including break clauses, service charge, ground rent, rent review clauses and the costs of obtaining licences to alter if you want to carry out works to your leasehold property.
For instance, in the example from the video linked to the article, the ground rent due on a flat over the course of the 190 year lease totalled over £1.3 billion despite the leasehold interest in the flat only costing £150,000. This resulted from a fairly unusual provision which doubled the ground rent every 10 years, meaning that the ground rent due grew exponentially over the term of the lease. However, the long term effect of any rent review clause should always be discussed with your solicitor, regardless of the current level of rent due.
If your solicitor is not willing to discuss this with you as part of their retainer, you must seek advice from a solicitor who will, regardless of whether they have been recommended, approved or suggested by the developer, seller or your mortgagee.
As a firm we are receiving an increasing number of queries from landlords over their need to check the immigration status of their tenants. Michael Shapiro's recent article explains what is required in more detail.
The Beatles back catalogue is one of the most valuable in the world and Sir Paul McCartney has issued proceedings against its owner (Sony) to clear the way for him to reclaim his share of the publishing rights in his songs.
McCartney will not be in a position to start reclaiming his songs until 2018, but he has issued proceedings in the US seeking a declaration that in line with US law he is entitled to terminate the agreement under which assigned his publishing rights.
Over recent years, several artists have been reclaiming their copyrights in the US, but in 2016 an English Court ruled that Duran Duran could not rely on the US law to terminate their UK publishing deal even in respect of their US copyrights.
It is important to note that the Duran Duran case was decided on its own facts and contractual wording and so does not automatically indicate that McCartney's claim will fail. Indeed, as he is bringing the case in America, the right to terminate is far more likely to be effective than it was for Duran Duran in the UK court, where Mr Justice Arnold acknowledged that no expert evidence regarding the extent of the US law had been submitted by either party.
Duran Duran have already indicated that they intend to challenge the court’s ruling and with Paul McCartney's new claim, this promises to be an area of significant importance to writers and publishers in the coming years.
The star has gone to a US court, seeking to regain the publishing rights to 267 of the band's classic songs.
Despite several successful tribunal decisions challenging self-employment status, the legal position has not changed.
Tribunal decisions are not binding and each case is determined on its own facts. Uber has appealed the decision against it and, the courier companies will probably follow. The appeal process can be prolonged for many years by appealing to higher courts, each time adding more costs to the individuals or their union backers.
What will make a difference is the enquiry into the future world of work by the Parliamentary Committee on business strategy. This will focus on the status and rights of agency workers, the self-employed and those working in the ‘gig’ economy. If there is a change in the law confirming worker status then this will have financial repercussions for companies in the ‘gig’ economy who will then be required to pay couriers/drivers the national living/minimum wage and holiday pay. Price increases for customers will, doubtless, follow.
The central London employment tribunal ruled that CitySprint had unlawfully failed to award holiday pay to Mags Dewhurst and had wrongly classed her as a self-employed freelancer. CitySprint, which has 3,500 self-employed couriers in the UK, could now face further claims.
The penalties for failing to pay the national minimum wage and national living wage are high. They amount to 200% of unpaid wages (or 100% if paid within 14 days of any enforcement notice) up to £20k per worker maximum. This is in addition to the unpaid wages payable to the individual (penalties are payable to the government). Any enforcement action will also result in ‘naming and shaming’ on Government websites.
Whilst HMRC’s enforcement action should be sufficient to persuade most solvent and scrupulous employers to pay the NMW/NLW, there are a number of grey areas where HMRC does not tend to get involved. These include cases involving whether travel time between assignments is working time (it is now confirmed that it is), interns who are required to work unpaid for long periods and workers in the “gig” economy who are required to register as self-employed with recent tribunal decisions upholding their status as workers. Worker status entitles an individual to be paid the NMW/NLW in addition to holiday leave.
Enforcement via HMRC for any worker/employee who has not been paid the NMW/NLW is relatively quick and free. But perhaps more resources ought to be allocated for complex cases which require determination by an employment tribunal. Without financial backing, these cases can be expensive and prohibitive for any individual to pursue which defeats the purpose of the national minimum/living wage.
“This campaign will raise awareness among the lowest paid in society about what they must legally receive and I would encourage anyone who thinks they may be paid less to contact Acas [the advisory, conciliation and arbitration service] as soon as possible," she said.
“Every call is followed up by HMRC and we are determined to make sure everybody in work receives a fair wage.”
An interesting case emanating from the Intellectual Property Enterprise Court has shed light on what rights a professional may have in respect of the use of their name following retirement.
A partner at a law firm created a separate sub-brand for her work, which incorporated both the firm name and her own. This was registered as a trade mark by the firm and was used for a number of years. However once the solicitor left the partnership, the firm continued to use the sub-brand in her area of expertise attracting the ire of its previous partner.
The solicitor claimed that by continuing to use her name in the sub-brand the firm was passing itself off as associated with her and the goodwill she had built up as a professional in her field.
This argument was rejected by the court. Whilst acknowledging the reputation that the solicitor enjoyed, the court found that this did not mean she had built up any goodwill which she herself owned. A key fact was that at all material times she traded as part of a partnership and therefore goodwill generated by her actions were owned by those partnerships rather than herself.
The position may well have been different if she had at some point in the past traded by herself as a sole practitioner but, without owning any goodwill, the solicitor was not in a position make a claim for passing off in this instance.
It was agreed by all parties that the solicitor could continue to use her name in the field and the court opined that if the firm continued to represent that she still worked for the firm, then she would have grounds to make a complaint. So whilst the firm can not claim to be her, they do not need to disassociate themselves from her either.
In a recent case in which this firm acted for the successful claimant, the Intellectual Property Enterprise Court ruled on the interaction between the costs caps in that court and the various incentives to make offers of settlement under Part 36 of the Civil Procedure Rules.
Previous case law had limited the effect of the Part 36 incentives, holding that the costs caps still applied to the rewards otherwise available to a party making and then beating its Part 36 offer. This severely limited the benefits of making a generous offer of settlement (and so limited the attraction to the other party of considering whether to accept that offer) as there is likely to be little room left in the staged costs caps in which to recover any additional sums.
In PPL v Hagan, HHJ Hacon has altered the costs position. The judge followed the Court of Appeal's decision in Broadhurst v Tan (on fixed costs) and ruled that an award of indemnity costs pursuant to Part 36 fell outside of both the stage and overall cost caps.
This will provide a strong incentive for claimants and defendants to make reasonable part 36 offers, especially in the early stages of the litigation. Failure to accept an offer that subsequently beaten will deprive the paying party of the protection of the costs cap (from the time that the offer was due for acceptance) and so is likely to have a severe effect on the amount of costs that will be awarded against them.
See my comments on the new draft tax legislation which will come into force on 5 April 2017.
One of the recent trade mark disputes to have received publicity, this case concerns the battle between the Icelandic Government and frozen food retailer Iceland over the use of the country's name. The dispute originates from an application by the Icelandic Government to register the trade mark "Inspired by Iceland" which was subsequently blocked by the supermarket chain.
The Icelandic Government claim that the retailer is preventing Icelandic firms from describing their products as 'Icelandic'. Despite their trade mark registration, legally Iceland stores are not allowed to prevent use of this term where it serves as a term to denote the geographical origin of a goods or service.
However, it should also be noted that the dispute arose from a trade mark application whose purpose was not purely to describe the geographical origin of products. Such a sign with such a limited purpose could not be registered as a trade mark it would prevent fair competition in the market place from the producers local rivals.
The Icelandic Government could challenge the supermarket's trade marks due to their "improper use" by the trade mark owner. They could argue that the trade marks are being used to stymie legitimate products, competition and trademark applications. This argument is fraught with difficulty as not only is there little relevant case law, but it traditionally has focused on whether the actual use of the mark was likely to mislead the public as to the nature, quality or geographical origin of those goods or services. None of that is in issue in relation to the supermarket's goods.
Pending any such application, Icelandic food producers will need to be bold and stand up to the supermarket chain where use of the term Iceland or Icelandic is justified. This can be difficult, especially for small producers, when faced with a well resourced and financed international company but they will also have the potential of bringing a claim against the supermarket if they threaten trade mark infringement proceedings where the use of the Icelandic name clearly indicates the origin of the goods.
Amazon delivery drivers’ complaints follow those of the Uber drivers, Hermes couriers and other workers in the gig economy; namely, that they are treated as casual labour, forced to work on a self-employed basis with no guarantee of work and are paid per ride or delivery. Consequently, they often earn less than the national minimum or living wage (£7.20 per hour). From the reports, it would seem that Amazon Logistics or its agency, are also breaching health and safety obligations and the working time regulations. These provide for minimum daily rest breaks.
However, rather than bringing tribunal claims to enforce their members rights which brings risks of costs and uncertainty, the unions seem to be relying on adverse publicity to force such companies to change their working practices. The BBC undercover investigation and wide press coverage has drawn attention to the Amazon drivers’ working conditions.
The unions have also successfully lobbied Parliament on these issues leading to an inquiry by the Business Strategy Committee into the future world of work. This will focus on the status and rights of agency workers, the self-employed and those working in the gig economy. It will also consider the definition of ‘worker’, minimum wage enforcement and the role of trade unions in providing representation together with other related issues.
Whilst the Government is keen for companies to pay the NMW and NLW (penalties for non-compliance are high), they also want companies to provide work to individuals so will need to strike a balance between the companies and individuals’ interests. If changes are implemented, then this could affect the business models for many gig economy companies and will, doubtless, result in higher prices for customers.
Drivers for companies contracted to work for the online retailer told an undercover reporter that they were expected to deliver up to 200 parcels a day.
The report also claimed some drivers said they were effectively paid less than the minimum wage of £7.20, because of the long hours worked to deliver all their assigned parcels.
The makers of Toblerone have announced that they are changing the shape of the product in an effort to reduce the weight of the bars. The reduction of in weight has been justified on the basis of costs, but interfering with the iconic look and shape of the bars is a significant risk. Indeed the company has been beset with criticism since the move was announced.
Perhaps the decision could be better understood, when we consider the Intellectual Property Rights which exist in a Toblerone bar and its packaging.
Toblerone has trademarks over the Toblerone name and logo and also over the shapes of various different elements of their triangular and combination packaging. By changing the shape of the chocolate bar as they have, they are able to continue to use the same packaging in the same dimensions. The off the shelf product bought by the consumers will look the same and so maintain continuity for the consumers in this regard.
The key element which is not protected is the shape of the chocolate bar itself. Protection can not be granted over this element as the shape fulfills a technical function in allowing the bar to be broken into pieces by squeezing the peaks together.
Whilst the shape of the chocolate bar is the image most consumers bring to mind when they think of a Toblerone bar, this element is not seen by the public until the product has already purchased and opened. Its value in distinguishing the product 'on the shelf' is therefore limited.
Perhaps this is the reason why Toblerone have decided to interfere with the classic Toblerone bar design, but it may also be a prelude to Toblerone arguing that the new shape of the bar is no longer purely functional and so can qualify for legal protection.
Mondelez International, the company behind the product, has increased the gap between the peaks to reduce the weight of what were 400g and 170g bars.
Some consumers have described the move as "the wrong decision" and said the bigger spaces looked "stupid".
An interesting and timely article from my colleague Justin Goldspink in BASCA's 'The Works' magazine.
A look at the legal issues behind the spate of recent songwriting copyright infringement claims in the UK and elsewhere. An interesting and informative read.
It is becoming far more effective to rely on adverse publicity to force a company to change its working practices than pursuing claims in the courts or tribunals. This applies particularly if a Parliamentary select committee takes up the cause. It is also infinitely cheaper due to the costs, delays and uncertainty of tribunals/courts and the limited remedies available. These do not include forcing a company to change its working practices. And from the various reports, ASOS has not actually breached any employment or health and safety regulations, even if their working practices are tough.
Whilst adverse publicity from the select committee may have been successful in forcing changes at high profile companies such as Sports Direct and ASOS, unless the Government changes the law (and accepts it has some responsibility rather than simply blaming the companies), it is unlikely to make much difference to most UK workers who are more likely to work at (low profile) SMEs.
If the Government really wants to help UK workers, then they should perhaps start with abolishing zero hours’ contracts and tribunal fees. Relying on adverse publicity for high profile companies is not the answer.
The online fashion retailer wrote to staff yesterday about changes it would make to their contracts amid widely-published allegations that current practices were exploitative.
Staff at its global distribution centre in Barnsley were allegedly told less than 24 hours after the investigation was published that changes would be made to shifts and the length of probation periods, according to Buzzfeed.
It is understood that changes to contracts had been under discussion for some time but action was taken after Ian Wright MP, chair of the business select committee looking into corporate governance and working conditions of large companies, announced ASOS would be included in the inquiry.
Employers can reject job applicants due to their tattoos as such applicants have no legal protection. They cannot claim discrimination as the Equality Act 2010 specifically excluded tattoos and piercings from the definition of a severe disfigurement, on which basis an employer cannot discriminate. It could be argued, however, that a policy of not employing people with tattoos is indirect age discrimination, given that younger workers are more likely to have tattoos rather than older workers. This would, however, be an expensive and difficult case to pursue.
Problems for employers are more likely to arise on dismissal. Once an employee has more than two years’ service, then they have unfair dismissal rights.
In some cases employees might have started employment without a tattoo but decided to get one (or more) some years later. Whilst employers with dress code policies will usually state that employees in certain roles, usually customer facing ones, will be asked to cover up any visible tattoo, an employment tribunal may decide that any display of a tattoo is not a fair reason for dismissal.
In spite of these employment rights, tribunal fees and the time, cost and risk of a claim without funding is not such an attractive option for someone who is rejected or dismissed due to their tattoo. Instead, online petitions, lobbying MPs and endless newspaper articles seem to be a far more effective way of persuading employers to reconsider their strict ‘no tattoo’ policies than pursuing a case in the tribunal.
The ECJ has today held that shops and pubs which allow patrons free access to their WiFi networks shouldn't be liable for their copyright infringements . In this case a patron of the shop made available an illegal copy of a song owned by Sony Music.
However, contrary to the advice given to the court by the Attorney General, the European court held that the copyright owners were not precluded from seeking an order in the national courts requiring the shop to take practical steps to prevent or end the ability of customers to access such content.
The example given by the court was to require the customer to sign in and reveal their identity (so as to remove the cloak of anonymity from the infringer). It rejected orders requiring the premises to take active steps to monitor what is being done on their network or to terminate the connection where relevant.
The court was only given certain types of order to consider and so, for example, did not assess whether an alternative approach would be to restrict access to certain types of sites through the internet akin to that employed by employers and other public Wifi providers.
France’s highest administrative court, the Conseil d'État, has today suspended the controversial "burkini ban" in one French town, ruling that it contravened fundamental liberties and even went as far to say that it was illegal. Whilst the bans, which are in place in several French seaside towns, have caused an uproar in the international press, 64% of French people are said to be in favour of outlawing the burkini. The ruling is to be welcomed, but the future still looks bleak as mayors of other French towns along with presidential hopeful, Nicolas Sarkozy, continue to reiterate their support for the bans.
The main justification offered by French authorities for the ban is that the burkini (a form of swimwear similar in appearance to a wetsuit) poses a risk to public order, being a symbol of terror and Islamic fundamentalism. This justification hangs in the backdrop of the French principle of “laïcité” or secularism which dictates that state and religion should remain separate. However, laïcité is meant to promote freedom of thought and freedom of religion, principles which are hard to relate to forbidding Muslim women from exercising their right to practice modesty whether in the name of religion or otherwise.
Manuel Valls, the French Prime Minister has gone so far as to say that the burkini represents the “enslavement of women” a statement which is difficult to digest when we think of the harrowing images we have seen this week of French police officers oppressing a woman by subjecting her to fines and threatening her with pepper spray until she removed specific items of clothing (none of which were the burkini garment).
Whilst it is easy to get carried away in the feminist and common sense arguments against the burkini ban (and believe me I am guilty of doing just that), let’s take a look at a few of the legal arguments against the ban:-
- The governing and dictation of women’s clothing amounts to a violation of human rights. The ban does seem to contravene a number of articles of the European Convention on Human Rights (ECHR), specifically Article 9, safeguarding freedom of thought, conscience and religion, along with Article 10, which protects freedom of expression.
- The ban amounts to the “collective punishment” of Muslims for terror attacks supposedly committed by so-called ISIL. Collective punishment is a norm of customary international law i.e. established by state practice. It means that no one may be subject to sanctions or harassment of any sort except on the basis of individual criminal responsibility. Whilst the Conseil d'État did not go so far as to hold that the ban violated this principle, it is clear that Muslim women are to some extent being held accountable for the actions of others.
- Discrimination. The ban is clearly arbitrary in that it treats Muslim women differently to other French beach-goers who are permitted to opt for more coverage in the form of wetsuits for diving or long-sleeved tops to prevent sunburn. French authorities have justified this difference in treatment on the basis of the threat posed by Islamic extremism. However, the UN Human Rights Committee has stated that States parties may “in no circumstances” invoke a state of emergency “as justification for acting in violation of humanitarian law or peremptory norms of international law”.
It should be remembered that today’s ruling has only suspended the ban in one French town, Villeneuve-Loubet, whether the ruling will set a precedent for other towns remains to be seen.
Specsavers have always been pro-active when seeking to register and protect their intellectual property. They are in the news again, not for their trade mark dispute with Asda, but in relation to their latest trade mark application simply covering the short phrase "should've."
Specsavers already have trade marks for their well known slogan 'should've gone to Specsavers', but they have moved to strengthen their position by registering the shorter phrase. A registration of such a sign would not normally be granted, but Specsavers must have relying on their long standing use of the word as part of their advertising slogan to show that they have established an association between the phrase and the company.
The application has now been published, so Specsavers must have satisfied the IPO that the proposed trade mark can be used to distinguish their products from their competitors. However, it is difficult accept that the association rests in "should've" alone rather than than the complete phrase 'Should've gone to".
There still remains the opposition period to navigate, though it is unlikely any third party will volunteer to challenge the trade mark with out any interest in the word at this time. Any challenge to any registration is likely to come further down the line if Specsavers seek to enforce the trade mark. I would therefore expect Specsavers to be circumspect about relying on this trade mark (as opposed to their other registrations) when alleging infringement, especially if the infringer has the financial clout to bring a case for revocation before the courts.
It seems that a useful resource for many people including corporate lawyers could be handicapped if Companies House decides to delete historical records. At the moment there is a wealth of information that can be revealed not only about companies but also shareholders and directors. Other valuable information can be discovered from reviewing reports from liquidators and administrators. As the Government has sought to open access, many of these documents which previously were only available at a cost and engaging a search agent are now available online, for free, at the click of a button. Long gone are the days of waiting for a printed company report or even analysing microfiches (whatever they are.) This could have a knock on effect for corporate transactions. In many disclosure letters there is a general disclosure of matters apparent from a search of the file of the target company at Companies House. If the proposals go ahead, the seller may need to provide additional disclosure. If buying, historic details can reveal historic transactions that sellers may have forgotten about which can be very useful as part of legal due diligence.
Companies House maintains a database on every firm incorporated in the UK, providing access to their accounts and listing all directors and shareholders. But the agency is facing mounting pressure from businesses – and reportedly from members of parliament – to take down valuable information.
Today the provisions repealing section 52 of the Copyright, Designs and Patents Act came into force. This section essentially limited the copyright granted to artistic works which were being mass produced to 25 years from the year of first production.
Designers of iconic goods whether in fashion, jewellery, furniture and home furnishings will benefit greatly from the significant extension of copyright protection. The new provision means that protection will be restored for a number of goods where protection had already lapsed and that the duration of the copyright will be increased to the whole of the designer's life plus 70 years. This ensures that not only will the designer be able to benefit from their work during their lifetime, but they will also be able to ensure that their family continue to benefit following their death.
To qualify for copyright protection as an artistic work, the product must be original and, even though their has been no change to this section of the act, it will be interesting to see if a more restrictive approach will be taken to what qualifies an a artistic product now that the period of protection has been so significantly increased. Despite this, the Government will hope that the dangers of copyright infringement and the greater rewards for original design mean that designers seek to create more iconic products whilst also rewarding the designers of some the UK's leading designers from the recent past.
The Government has put in place transitional arrangements to allow those that have previous copy designs which were out of copyright to sell their remaining stock, but this right will cease in January 2017 when any further sales will have to be authorised by the copyright owner.