Legal Updates Archives - Page 4 of 9

We continue supporting you

Following the UK Government’s announcement on Saturday evening regarding the planned national lockdown in England, that came into force today, Thursday 5th November 2020, we would like to take this opportunity to provide reassurance to all our clients of our continued support during this difficult time.

As was the case during the initial lockdown back in March, we can confirm that it is very much business as usual for GSC Solicitors LLP. Our team will continue to be available to support you with your enquiries either by phone 0207 822 2222 or email: [email protected]

Our priority remains the best interests of our clients and in particular the concerns that clients will understandably have regarding their staff and businesses. As per usual we are available to speak to clients about the challenges they are facing as well as to provide pragmatic advice on any specific concerns whether it is in relation to managing staff, dealing with cancelled contracts, managing supplier distress, dealing with tax concerns or cybersecurity issues.

We will continue to comply with the government’s guidance on managing the risk of COVID-19 to ensure the safety of our staff. In the meantime, please feel free to contact me personally or any of your usual contacts here at GSC.

On behalf of all of us at GSC we are wishing you and your loved ones to stay well.

Kind regards,

GSC Solicitors LLP

Legal guidance for you and our business – GSC Newsletter Autumn 2020

Here is our Autumn edition 2020 of GSC Newsletter that offers a number of useful and practical guidance to businesses and individuals to enable them operate successfully in the current climate.

If you would like to subscribe to our newsletters please send a confirmation email to: [email protected]

© 2020 GSC Solicitors LLP. All rights reserved. GSC grants permission for the browsing of this material and for the printing of one copy per person for personal reference. GSC’s written permission must be obtained for any other use of this material. This publication has been prepared only as a guide to provide readers with general information on recent legal developments. It is not formal legal advice and should not be relied on for any purpose. You should not act or refrain from acting based on the information contained in this document without obtaining specific formal advice from suitably qualified advisors.

Summarising the new Job Support Scheme

On 31 October this year, the Coronavirus Job Retention Scheme will end.

The Chancellor, Rishi Sunak, has announced that from 1 November it will be replaced by the Job Support Scheme. The headlines relating to the Job Support Scheme are:

It will apply to employees who work at least 33% of their normal hours.
For the hours not worked by the individual, the government and the employer will each pay the employee one third of the employee’s equivalent salary for that unworked time.
The level of contribution by the government for each employee will be capped at £697.92 per month.
To qualify, an employee must have been on an employer’s PAYE payroll on or before 23 September 2020.
Employers will be able to move employees on and off the Job Support Scheme.
Employees are not required to consistently work the same hours, but to qualify must work the same hours for at least seven days at a time.
The employer must agree any changes to working arrangements with the employee and notify the employee of the changes in writing (and any such agreement must be made available to HMRC on request).
An employer does not need to have been part of the Coronavirus Job Retention Scheme to participate in the Job Support Scheme.
It is currently planned that the Job Support Scheme will run for six months.

The law in this article is accurate as of 24 September 2020.

If you have any employment law queries, please do not hesitate to contact David Nathan at [email protected] or on 020 7822 2247.

The perils of relying on passing off – Why you should register your brand name and logos

Many businesses in the UK operate successfully without the benefit of a registered trade mark to protect their brand name or logo.

It may be that they feel that their brand is too descriptive to be registered as a trade mark, the brand may still be in the process of development or it may simply be that registering a trade mark is one item on a long list that the business has not had time to address yet.

These businesses are still able to protect their brand in the UK using the common law, this is known as “Passing Off”. The right to bring an action for Passing Off does not require any registration and arises once a business has started to build up a reputation.

However, while it can be tempting for businesses to rely on Passing Off, registering a trade mark should generally be the preferable approach for the following reasons.

Immediate protection

Once a trade mark is registered, it will give the owner immediate protection over that mark, regardless of whether it has been used in the past or not and whether or. Although the mark could be revoked in the future if the mark is not used, in the UK there is an initial period of five years where the mark can not be challenged on this basis.

Whilst a Passing Off claim can be made without the need for registration, the brand owner will need to show that the name or logo has been used and that goodwill in the business has been built up. It follows that the protection afforded by Passing Off for a fledgling business will be more limited than that conferred by a registered trade mark.

Identification of potential conflicts

The application process for a trade mark will usually involve searches of the trade mark registry by both, the relevant Intellectual Property Office and by any professional firm that you use.

Applying for a trade mark can identify existing trade marks which may reduce the strength of your brand or even lead to litigation if any of those owners challenge not only your application but also your use of name or logo.

So the initial steps of a trade mark registration can assist in evaluating the benefits of using a particular name or logo. The prospect of potentially re-branding at an early stage may not seem appealing, but it is much easier at the genesis of a business when there is limited value in that brand (and limited expenditure on the name and logo).

The alternative could be a costly dispute in the future and the prospect of losing the ability to use the brand that you have developed.

Alerting other parties to your rights

By registering a trade mark, that mark will appear on the relevant register. This is a public database which clearly identifies your right to the mark and the date when this arose.

There is no equivalent general database in respect of Passing Off and so rival traders may seek to register a conflicting trade mark without being aware of your pre-existing rights.

Furthermore, if you have a registered trade mark, then you may be notified of any applications for new marks which could affect that mark as the relevant intellectual property office (or anyone tasked with monitoring the register on your behalf) will usually check the registers for any conflicting marks.

Costs of enforcement

If you choose to rely on Passing Off to protect your name and logo, you will not incur the fees required to register a trade mark. However, you are likely to incur greater fees where you seek to rely on the Passing Off to protect the use of your name or logo (whether by taking action in the courts to stop any interference or by opposing an application for the registration of a rival’s mark in the relevant trade mark registry).

The existence of a registered trade mark can be easily proven by reference to the applicable register. Without being able to rely on a trade mark, you will instead have to show the following three elements of Passing Off:

Goodwill – that your business has built up a reputation;
Misrepresentation – that the Defendant has misrepresented their goods and services as yours; and
Damage – that the misrepresentation is causing damage to your business, usually by way of diverted sales.

International Expansion

Where you are seeking immediate protection in a number of countries, you can use the international trade mark system to replicate the applications around the world, often before you have even started trading abroad.

While some other countries have similar laws to Passing Off, generally you will need to have traded in each country before being able to rely on those laws.

For further questions please do not hesitate to contact Ross Waldram directly on [email protected] or 0207 822 2236.

Residential Possession Claims: Stayed for an additional 4 weeks

The stay on residential possession claims was due to expire on 23 August 2020, with the Courts due to resume cases after a five-month pause. At the 11^th hour it was announced that the ban on landlords evicting tenants in England and Wales will continue for a further four weeks until 20 September 2020.

Housing Secretary Robert Jenrick said he was “supporting renters over winter” amid the ongoing effects of the coronavirus outbreak adding that, when the ban was lifted, the most serious cases of anti-social behaviour, other crimes, and unpaid rent for over a year would be heard first.

The government also intends to give tenants greater protection from eviction by requiring landlords to provide their tenants with a 6 months’ notice period, except for cases involving other serious issues such as anti-social behaviour and domestic abuse perpetrators.

It remains to be seen what status will be given to the three month notices that have been served between March 2020 and whenever the proposed extension to a six month notice period is introduced. It is also unclear as to whether the six month ‘use it or lose it’ notice period for section 21 notices already served will be extended.

We will provide a full update once further information is released.

For further questions please contact Mark Richardson directly on [email protected] or 0207 822 2240.

Redundancies – Employer perspective

Mainly it appears as a result of Coronavirus, a lot of businesses are currently in the position of making redundancies.

To undertake a redundancy properly, a specific legal process must be followed.

An employer will first need to identify that there is a redundancy situation (perhaps as a result of a downturn in business) and which roles are going to face a reduced headcount.

The employer will then need to decide who is actually to be made redundant by following a process of consultation and meetings with the employees concerned. The process becomes more complicated if 20 or more employees are to be made redundant within a 90 day period.

It is important to follow the redundancy process carefully, as by not doing so, the employer runs the risk of having to deal with legal claims from disgruntled employees.

If unsure, the best thing is to get professional advice.

GSC’s Employment law solicitors advise on all aspects of employment law from appointment to dismissal and employment tribunal proceedings.

We represent employers in cases of unfair dismissal, race, sex, disability and age discrimination, and unlawful deduction of wages.

If you have any employment law queries, please do not hesitate to contact David Nathan at [email protected] or on 020 7822 2247.

Attention Residential Landlords: Possession Claims Update

Due to the COVID-19 pandemic a stay was imposed by the courts on residential possession claims (and appeals in residential possession claims) until 23 August 2020. A new practice direction has been introduced, which sets out how residential possession claims will be dealt with by the courts from 24 August 2020.

Stayed Claims

A “stayed claim” is a claim that is brought on or before 22 August 2020. The new practice direction 55C provides that, unless the court directs otherwise, no stayed claim is to be listed, re-listed, heard, or referred to a judge unless one of the parties files and serves a “reactivation notice”.

The reactivation notice must set out what knowledge the party has as to the effect of the pandemic on the defendant and their dependants. If the reactivation notice is filed by the claimant and the claim is based on arrears of rent, the claimant must also provide an updated rent account covering a two-year period.

It should be noted that there is an exemption in respect of reactivation notices for any claim brought on or after 3 August 2020 (see further information below) and for any stayed claim in which a final order for possession has been made.

Unless it directs otherwise, the court will give at least 21 days’ notice of any hearing listed or relisted in response to a reactivation notice. If a reactivation notice is not filed and served before 29 January 2021 the claim will be automatically stayed.

New claims and stayed claims brought on or after 3 August 2020

In any claim brought on or after the 3 August 2020, whether new or stayed, the claimant must serve on the defendant 14 days prior to the hearing (and bring to the hearing) two copies of a notice setting out what knowledge they have as to the effect of the coronavirus pandemic on the defendant and their dependants. If the possession claim is issued using the accelerated possession claims procedure, the claimant must file this notice with the claim form.

Summary

There will be a requirement in all claims for possession, whether new or stayed, for the claimant set out to the court what knowledge they have as to the effect of the coronavirus pandemic on the defendant and their dependants. However, there is no requirement for investigations to be carried out by or on behalf of the Claimant.

It remains to be seen as to whether or not it will be sufficient for a party to state that they have “no knowledge” of the impact of the coronavirus pandemic upon the defendant and their dependants. Where the information is not provided, judges will have the ability to adjourn proceedings.

For further questions please contact Mark Richardson directly on [email protected] or 0207 822 2240.

A Level and GCSE Results and Data Protection

Whatever the rights and wrongs of the English A Level grade markings in 2020, upset students frustrated by their marks might want to look to the GDPR and the Data Protection Act 2018 and in particular Article 22.

Article 22 gives individuals the right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her or significantly affects him or her.

There are exceptions to this where the decision is authorised by law where there are suitable measures to safeguard the individual’s rights and freedoms and legitimate interests. This also needs to be considered in conjunction with section 14 of the Data Protection Act 2018, which expands on this exception and gives the individual 1 month to request the reconsideration of the decision or take a new decision that is not based solely on automated processing.

This could give rise to some interesting issues:

If Article 22 applies, can students ask for their grade to be reassessed individually (and if so, how would that work)
Does the teacher/centre input of predicted grades mean that Article 22 does not apply because there is some human involvement? Was their actual involvement sufficient to disapply Article 22?
Was Ofqual’s data protection impact assessment, which they presumably carried out, adequate?

Even more fundamentally, the GDPR has key principles including the requirement to process data accurately and fairly. While there can be no perfect substitute for not actually taking exams, can adjusting a student’s predictions based on results from other students from the same school in previous years ever be fair to that individual. While it may be reasonable on a statistical basis, can it be on an individual by individual basis.

In Norway, their data protection authority has notified the International Baccalaureate Organisation exam board that it thinks that it has processed personal data inaccurately and unfairly in the way they have predicted exam grades though at the time of writing this is not a final decision.

Teachers and Schools

Schools and teachers themselves might not escape scrutiny. They too have an obligation to process data fairly and accurately and so if they inflated the predicted grades of some of their weaker students and that then resulted in their stronger students’ grades being reduced by Ofqual, this could create problems for schools and teachers.

Unhappy students should take specific and urgent advice on what to do next as there are applicable time limits both under the data protection legislation and how they progress to the next stage of their studies.

If you have any questions in relation to the above or concerns about your business, contact Clive Halperin, Head of Corporate & Commercial, directly on [email protected] or 0207 822 2220.

Video-Witnessed Wills: Answers to Key Questions

Why will remote witnessing of Wills be legalised?

The Government intends to ease the process of recording people’s final wishes during the Covid 19 pandemic.

Which territories will be covered by the measure?

The Government will allow video-witnessing in England and Wales.

When will the new law be introduced?

The changes will be introduced in September. However, they will be backdated to 31 January 2020. This means that wills witnessed by video technology from 31 January 2020 onwards will be legally accepted.

What are the changes in law?

Presence as stated in the Wills Act 1837 will now include virtual presence provided the quality of the sound and the video is good enough to see and hear what is happening at the time.

How many witnesses are required?

The vital safeguard of requiring two witnesses will be kept. This is essential to ensure protection against fraud and undue influence.

What are the potential problems?

One of the main concerns is that undue influence may be exerted by the people off-camera, as it is impossible to find out whether the is anyone else in the room while the testator is signing the will. Common problems, such as a will being lost by the post, can also occur. There is a chance of wills being intercepted by a third party while being delivered.

How long will this measure remain in force?

The measure will remain in force until 31 January 2022 or for as long as it is necessary.

What will happen afterwards?

The physical presence of the witnesses will be required again.

If you have a question, please do not hesitate to contact James Cohen directly on [email protected] or 0207 822 2257.

New SDLT Rates for Non-Residents

New rates of Stamp Duty Land Tax (SDLT) have been introduced for purchasers of residential property in England and Northern Ireland who are not resident in the United Kingdom. They will be 2 percentage points higher than those that apply to purchases made by UK residents.

Who will be affected by the measure?

The following will be affected by the measure:

∙ non-UK resident purchases of residential property in England and Northern Ireland;

∙ conveyancers;

∙ other professionals advising on transactions of this kind.

What kind of purchases will the measure apply to?

The measure will apply to purchases of freehold and leasehold properties. SDLT payable on rents on grants of new leases will also be increased.

When will this measure come into effect?

It will apply to transactions with an effective date of 1 April 2021 or later.

Transitional rules may be applicable in the following cases:

∙ if contracts are exchanged before 11 March 2020 but complete or are substantially performed on or after 1 April 2021;

∙ if a contact is substantially performed on or before 31 March 2021 but completes on or after 1 April 2021.

What is the objective of this measure?

The objective of this measure it to make house prices more affordable for UK residents.