50 Shades of Employment Law

12th February 12 – 2pm

love

As business owner, HR professional or manager you fulfil a very important role in the business; you are responsible for managing employee relations. You are expected to keep up-to-date with all developments in employment law and HR practices and the recent decisions of the employment tribunals.  You are required to be the authoritative, voice of reason with the final word on all employment related matters in your workplace.

But sometimes you don’t have the answers and you don’t have the time to find them or have similar experiences to call upon. To make matters worse, you may work alone and the confidential nature of your job means you can’t talk to any of your colleagues. It can be a difficult and lonely job.

The Employment Team at CCW are pleased to invite you to our next Employment Law Forum to join others just like you who do a great job in their chosen industry or sector but, from time to time, benefit from meeting with, and learning from, others who have experience of the very problem they need help with. Chatham House Rule applies making for a relaxed and free discussion.

To celebrate the release of Fifty Shades of Grey this Valentine’s we are going to explore some of the grey areas in employment law including: sexual harassment, is it or isn’t it? whether an employee’s ‘exploits’ outside work can affect their position at work; and personal relationships at work.

We are pleased to be joined by our guest speaker Stephanie Brown, District Manager East Scotland for Signet trading, H Samuel Division. Stephanie will share her love/hate experiences of managing employee relations and the grey areas she has encountered.

This event is taking place at CCW Business Lawyers Dunfermline Office, it’s free to attend and lunch will be provided. Book early to secure your place. Contact Donna Reynolds. donna.reynolds@ccwlegal.co.uk

 

Foreign concepts: music industry challenges new copyright law

In a recent post, we discussed various new exceptions to copyright infringement which came into force in June and October 2014. These changes were made relatively quickly, as legislation goes, and the result is that there are now some challenges arising.

The challenge

The most significant of these seems to be, unsurprisingly, from the music industry. It has raised a judicial review challenging the way in which the new exception for private copying has been introduced. To recap, until 1 October 2014, the making of private copies of copyright works (such as copying a music CD onto an MP3 player) was an infringement of copyright. This is now permitted for most copyright works, but not computer programs.

One might wonder what complaint the music industry could have over this change, as it is a practice which has become commonplace in recent years and an infringement which has been rarely, if ever, enforced. However, to understand the issue here, we have to step back to the very purpose of intellectual property rights as a concept.

The background

IP rights exist to impose an artificial value on intangible things which are otherwise difficult to protect in order to encourage their creation for the benefit of all. For example, monopolies are granted over certain novel ideas via patents to encourage investment in the development of such ideas. Similarly, musicians, artists, writers, etc are seen to create something of value to society and are therefore given a means of protecting their work from the exploitation by others via copyright.

In order to make remuneration for use of copyrights such as music practicable, many different methods have been adopted. Collecting societies are central to this – radio stations and public places playing music pay licence fees to societies like PRS for Music, which then pass on royalties to the songwriters and other rights-holders.

Another method adopted, especially in continental Europe, is to impose a levy on devices that enable copying and this is the direction in which the UK music industry is pushing with its current challenge.

This method was relatively simple in years gone by, as items such as blank cassettes and double deck cassette recorders were required for most audio copying, and it was fairly straightforward to impose a small levy on each blank cassette and relevant device that was then routed back to the copyright holders in a similar way to collecting societies. It is more complex today, with some jurisdictions now extending levies to external hard disks, memory sticks, set-top boxes, digital audio recorders and a variety of other items which can be used for various purposes. The implementation of such levies is contentious, as there is pressure from the relevant industries of the levied devices (as well as consumer groups) as to what devices are included, how much the levy is, etc. If it were introduced in the UK, there would also be the expense of setting up a relevant system to deal with the levy. It is therefore not surprising that the UK government have tried to side-step this issue.

The legal position

The current challenge is that the exception of private copying has been introduced without any ‘fair compensation’ to copyright holders such as songwriters. This is a principle that is required to be observed under the EU Copyright Directive, although there are various factors to be considered in determining what is ‘fair’. The music industry bodies raising the challenge are not requesting that the exception is overturned, but rather that a compensatory mechanism is put in place alongside it, such as a continental-style levy.

Although judicial review actions are notoriously difficult, as they challenge the method by which the decision was made rather than the decision itself, there seems to be a reasonable case here, so it will be interesting to see the outcome. If the result is in the music industry’s favour, the outcome would likely be a new revenue stream for rights-holders and slightly more expense for consumers. Some might see this as a rather fortunate windfall for the industry; rights-holders would, however, say that it is a longstanding wrong that has finally been put right.

John’s January rant (sorry, blog)

I used to think that I was pretty well versed in technology, but I am getting to that age where in order to get things to work properly I need the help of someone far younger than me. After all, I do remember transactions where telex was critical and where clients of ours were the first people we knew with a fax. Yes, ancient – I know. So, you’ll imagine my delight when I bought a Google Chromecast (think about buying one: they work really well) and it pretty much worked first time. Result!

Slightly more seriously though, have a look at this article from the Economist. I think it a really thought provoking article on how technology is and will change all of our working lives going forward. It’s all too easy to say “that won’t apply to me” or “my business is different” – but is it?

Changes, changes…

Whether consciously or sub-consciously, technology is changing everything we do and as a business lawyer I’m really interested in how that impacts on businesses – including my own. Examples are:

  • If we are going to outsource more and more to bulk providers, then we have to clearly differentiate what makes all of us special (for which we should get real value) from the commodity (which will be provided at a commodity price).
  • If our businesses are to be responsible for managing the outsourcing in order to deliver the “aggregate” product to customers:
    • Do we have those management skills?
    • Are we being paid for that work?
    • Are we leaving ourselves responsible for the mistakes of the commodity suppliers – but probably without the ability to recover from them?
  • I’m guessing that every business is interested in reducing overheads and if we could reduce the number of (fixed overhead) employees by having (as required overhead) consultants when they are needed, that is – potentially – interesting but:
    • How do we recruit/engage with them (and there is likely to be a recurring cost there)?
    • Can we get them when needed (and do time pressures lead to extra costs)
    • How are they to be managed in relation to timekeeping, confidentiality and so on.

So, all very interesting – but not (I think) clear cut.

Don’t start from here….

But, of course, the examples above assume business as normal: moving your business forward with the historical “baggage” it has just now. I think a better way of looking at all of this is to say: “if I was starting this business today with a clean sheet, how would I organise it?” And, for many of us, that’s where the lateral thinking comes in.

  • Do you really need those premises/that amount of space?
  • What is it that you do really well, and can get a premium price for – and what is it that you are doing just to cover overheads or which can be done cheaper elsewhere?
  • If you need other people to work with you on that refocused work that you will do, do you need to employ them – or could they be consultants or could you work cooperatively with them?

Lots and lots of questions, but no answers yet – but I am thinking! Meanwhile, back to trying to make all the other pieces of technology work as they should……

Happy New Year!

franchising

Franchising: the franchisee’s guide

Removing the mysteries

Franchising is a great way to carry on business – and there are many more businesses “out there” that are franchises than are generally known to be. So, what’s it all about?

At its simplest, franchising is a way of you getting into business quickly, by using the ideas, etc of another business. Let’s say that a company sells goods (widgets) in Towns A and B. They want to open in Towns C, D & E, and can either do that themselves or create franchises so that someone else can open there.

As a franchisee, you get:

  • Exclusivity for a defined geographical area (by map or post code) – and that’s why franchising is harder to get right for virtual (rather than physical) sales.
  • A contract (or the like) setting out your rights and theirs – such as:
    • Purchases of widgets only through the franchisor
    • Other things you have to pay: lease costs, marketing or whatever
    • What the franchisor has to do – doing the marketing for example
    • How long things last for
    • What happens if things go wrong, and
    • Most importantly, what you pay to get the franchise.
  •  And all the paperwork will be standard form because the franchisor won’t want to have to remember doing differing deals for different people. It follows that negotiating of “special” rights is usually somewhere between difficult and impossible. That’s one of the reasons why we tend not to suggest that prospective franchisees waste scarce cash on arguments that they are not going to win – but instead make sure that they are fully informed before they “sign up”.

But, bear in mind that the franchise fee (or whatever) is payable throughout the life of the franchise. So, there is no point grumbling about paying it 10 years after you start because by then you know it all. Your options are:

  • Sign up and pay, and by doing so get into business quickly, or
  • Don’t sign up and don’t pay, but get into business slowly.

In some ways, the franchise fee can be looked at as the alternative to doing your own marketing and watching sales build up over time.

We’ve done a lot of franchising work in the last 20+ years, so have a good feel for what works – and what doesn’t. So, if you are interested in having a chat about this whole area, get in touch.

 

franchising

Franchising: the franchisor’s guide

Removing the mysteries

Franchising is a great way to carry on business – and there are many more businesses “out there” that are franchises than are generally known to be. So, what’s it all about?

At its simplest, franchising is a way of expanding what you do by using others’ capital. Let’s say that you buy in goods (widgets), add some value to them (super widgets) and sell them to customers. Things are going well in Town A and B, but you don’t have the cash to open in Towns C, D & E. Bank funding may either not be available or at an unattractive price, and you aren’t ready yet to bring other shareholders on board. Franchising may be an option.

You do a deal with someone to have the rights for Town C (and D & E). They get:

  • Exclusivity for a defined geographical area (by map or post code) – and that’s why franchising is harder to get right for virtual (rather than physical) sales.
  •  A contract (or the like) setting out your rights and theirs – such as:
    • Purchases of super widgets only through you
    • Other things they have to pay: lease costs, marketing or whatever
    • What you have to do – doing the marketing for example
    • How long things last for
    • What happens if things go wrong, and
    • Most importantly, what they pay to get the franchise.
  •  And all the paperwork will be standard form because you don’t want to have to remember opt-outs in various places.

So, you get more sales of super widgets without using your capital, they get into business quickly and everyone is happy. Well, inevitably no – but the difficulties are probably no different in practice to those where you have to manage a dispersed “empire” on your own.

One key thing, though, is that once you start having franchises, you will really start a second business: the first is the existing one, dealing with Towns A & B; but the second one is managing the franchisees, and not selling the super widgets themselves. That change of mindset is important.

We’ve done a lot of franchising work in the last 20+ years, so have a good feel for what works – and what doesn’t. So, if you are interested in having a chat about this whole area, get in touch.

 

HR Connect: making light work for employers

Employment Forum Programme

 

As business owner, HR professional or manager you fulfil a very important role in the business; you are responsible for managing employee relations. You are expected to keep up-to-date with all developments in employment law and HR practices and the recent decisions of the employment tribunals.  You are required to be the authoritative, voice of reason with the final word on all employment related matters in your workplace.

But sometimes you don’t have the answers and you don’t have the time to find them or have similar experiences to call upon. To make matters worse, you may work alone and the confidential nature of your job means you can’t talk to any of your colleagues. It can be a difficult and lonely job.

HR Connect brings together people just like you who do a great job in their chosen industry or sector but, from time to time, benefit from meeting with, and learning from, others who have experience of the very problem they need help with. Chapham House Rule applies making for a relaxed and free discussion.

We can provide you with a useful overview of changes to employment law and key decisions by employment tribunals.

We are therefore pleased to announce our employment forums for 2015 and invite you to join us. They are free to attend and lunch will be provided. Details of each seminar including our guest speakers will be posted on our website nearer the time.

 

12 February 2015, 12 pm – 2 pm, Dunfermline

Fifty Shades of Employment

To celebrate the release of Fifty Shades of Grey this Valentine’s we are going to explore some the grey areas in employment law including: sexual harassment, is it or isn’t it? whether an employee’s ‘exploits’ outside work can affect their position at work; and personal relationships at work.

23 April 2015, 12 pm – 2 pm, Dunfermline

Details to follow.

21 May 2015, 12 pm – 2 pm, Dunfermline

Details to follow.

20 August 2015, 12 pm – 2 pm, Dunfermline

Details to follow.

29 October 2015, 12 – 2 pm, Dunfermline

Details to follow.

To reserve your place at any of the please contact Donna Reynolds. We look forward to seeing you.

Ched Evans: Go to Jail. Do not Pass Go. Do not play football again?

The Ched Evans’ saga continues as Oldham Athletic now considers signing the convicted rapist while the petition against his signing him grows to over 30,000 signatures. Public opinion might be divided but the law is very clear on employing someone with a criminal record:

  • If the conviction is spent, the employer can not refuse employment unless the position falls within one of the excepted occupations, offices or professions. The most widely known are those who work with childcare, provide care services to vulnerable adults or provide health services.
  •  If the conviction is spent but the position falls within one of the excepted occupations, offices or professions, then employment may be refused (and must be refused if there is legislation specific to that sector which prevents an offer of employment being made).
  •  If the conviction is not spent, the employer may decide not to employ that individual.

Clearly Ched Evans’ conviction is not spent and will never be because of the length of his custodial sentence and the nature of the conviction, but a football player is not an excepted position. Oldham Athletic must therefore decide whether or not it wants to make an offer employment.

In exercising its judgment, the same considerations that apply when deciding whether an employee should be dismissed for their conduct outside work also apply here.   As the Acas Code states:

“If an employee is charged with, or convicted of a criminal offence this is not normally in itself reason for disciplinary action. Consideration needs to be given to what effect the charge or conviction has on the employee’s suitability to do the job and their relationship with their employer, work colleagues and customers” (paragraph 30).

In short, the issue is whether the conduct in question pertains to the employment relationship. An employer may also wish to consider whether there is a pattern of offending or if the applicant’s circumstances have since changed.

Of course, employers may be concerned about the reputational damage that may be caused by employing someone with a criminal conviction. In Oldham Athletics’ case, they may be worried about the backlash from fans and sponsors. Again, looking to the principals established by the law of unfair dismissal for guidance, in the case of Kearney v Royal Mail Group Ltd ET/3100476/10, it was fair for the employer to dismiss an employee who was charged with murder, notwithstanding that he protested his innocence. When deciding that the relationship of trust had been destroyed by the charge, the employer was entitled to have regard to the negative publicity surrounding the case, even though it was not of Mr. Kearney’s own making. And reputational damage need not be external. In Myers v Metropolitan Police Authority ET/3202331/10 & ET/3200046/10, the dismissal of a civilian police officer for conduct namely, being convicted of dangerous driving outside work, was held to be fair. While there was no evidence of external reputational damage to the police service, the tribunal commented that the potential reputational damage could be internal as well as external. We don’t know how Oldham Athletic players feel about the prospect of playing with Ched Evans but when teamwork is crucial to performance on the pitch, the Club may not want to run the risk of damaging team spirit.