Success Spotlight; Congratulations Semefab

It was a privilege to applaud Semefab as they collected their award at the 2016 Fife Business awards. Winners of Performing Business Award (over 50 employees), which was sponsored by Thomson Cooper Accountants.

What made the moment even more of a pleasure was to be sitting with our clients as the announcement was made. It can sound like marketing waffle to read on websites that legal firms ‘become part of a clients team’ – but  this is a reality that our team at CCW Business Lawyers enjoys. Our relationship with Semefab is one that we are proud of, as we prize our reputation on developing the growth of a clients business as well a protecting it.

Semefab is a great example of business success in Fife; a silicon wafer foundry based in Glenrothes, which was founded n 1986. Semefab now works with a diverse range of customers throughout the world, across the whole organisational and technology spectrum.

This dynamic team is a creative business and has focused on continuously developing new technologies with various partners to expand their client offering and meet global market demands.

Led by Managing Directors Allan James and John Bruce, who kindly invited myself and Alison to celebrate the awards evening with them, their staff and former colleagues.

We have advised the team since Semefab started in 1986, when they were effectively a subsidiary of an English company.

Semefab is one of the handful of companies in Glenrothes that evolved from the US Businesses that located there in the 70s and 80s, on the back of government incentives. When the incentives ran out, most of the US Companies left – but that spawned a few home-grown stars like Semefab.

Alison has been involved with them since her first few weeks as a trainee at CCW Business Lawyers 11 years ago. Others in the firm work with them from time to time, but the key relationships are with myself and Alison.

If you would like an introduction to Semefab to learn more about how their products might support your business please do not hesitate to contact us;

You can reach John Clarke by phone on 01383 608 203 or by email at john.clarke@ccwlegal.co.uk and Alison Marshall by phone on 01383 608 206 or by email at alison.marshall@ccwlegal.co.uk .

semifab

Registration won’t protect the idea behind a design

The news of Trunki losing its case to defend its animal-shaped suitcases has brought the rarely litigated topic of registered designs into the media spotlight. This is a lesser-known intellectual property right which relates to principally aesthetic designs.

Read more: http://www.scotsman.com/news/registration-won-t-protect-the-idea-behind-a-design-1-4083768#ixzz44HZMP45G

Money for nothin’ ….

Money for nothin’ ….

or what you should be wary of when giving free advice

OK: I admit it. Even for me, there’s only a tenuous link between the Dire Straits song title and what I’m about to talk about – but you can’t blame me for trying, can you? (And there will be a prize for whoever comes up with the best song title that I should have used)

Helping friends out is a good thing, isn’t it? Well – maybe not, following the recent case of Burgess –v- Leojonvarn. Simplifying the 51 pages of the judgement:

  • Mrs Leojonvarn had a background in architecture and design
  • The Burgesses and the Leojonvarns knew each other and lived close to each other
  • And when a third party quotation from a landscape gardener came in too expensive, the Burgesses sought help from their (then) friend Mrs Leojonvarn.

Unfortunately, things didn’t work out; the relationship broke down; the Burgesses claimed that the work was defective; and the dispute ended up in court. The court came to various conclusions before telling the parties to go away and try to resolve things – but critically:

  • There wasn’t a formal contract here. To form a contract you need an offer which is accepted, and whatever they thought they were doing they hadn’t contracted
  • But (and it’s a big “but”) even though there was no contract, Mrs Leojonvarn owed a duty of care to the Burgesses. The court confirmed that a professional designer can owe a duty of care in such a project – and that any liability is not restricted to advice but can also extend to cover other services that a professional can supply.

Assuming (a) the judgement stands and (b) this can be taken as a precedent, this may well mean that you or your business will be “on the hook” for advice given or work done for free in pretty much the same way as if it were charged for – whether that advice or work is done for a friend, charity, business incentive or whatever.

So, what does this mean for us all?

  • Firstly, don’t stop being generous: that’s the last thing that is needed.
  • Secondly, be careful: the case implies that the barrier between advice you give or work you do as part of your business and private life is breaking down, if it hasn’t already.
  • Thirdly, though, ask yourself – does my insurance policy cover this? If the answer is no, then should you be doing what is being asked of you?

It all feels a little depressing to be saying “be careful about being generous with your time” – but that’s what we probably now have to bear in mind.

Having depressed you, let’s lighten the tone and go back to the music. Would a better title be:

Paint It Black;

The Sun Ain’t Gonna Shine Anymore

Or your suggestion, which is……

John Clarke

How to navigate data protection like a superhero: what UK businesses need to be aware of

If we talk about a David and Goliath case and heroic titles like “The Privacy Shield” (you have to say that in a voiceover tone of voice), we might be likely to think more about Marvel superheroes than EU legislation. The average news consumer is already fed up with talk of the EU due to the upcoming referendum, and, when we say “data protection”, most people’s eyes glaze over and they inwardly feel happy it is someone else’s problem. However, the truth is that some very interesting developments have taken place in this area recently, and new legislation coming soon will make the dreaded “data protection” relevant for many more people.

As you might have heard, last year someone took on Facebook and won. His name was Max Schrems and he had issues with Facebook sending his data to the USA.

The basic rule under EU law is that you aren’t allowed to send personal data outside the EU without special provisions. Some countries are on a special list which confirms their DP rules are acceptable to the EU. Others have different arrangements. The USA had a system called Safe Harbour, which allowed EU entities to transfer data to US entities who had signed up to the Safe Harbour charter. This was like a promise to follow rules roughly equivalent to the EU’s rules.

However, Mr Schrems’ case ultimately resulted in the Court of Justice finding the Safe Harbour regime invalid. The main problems identified were that there was a lack of effective enforcement remedies and evidence of government interference in the safeguards. This removal of the Safe Harbour framework resulted in many businesses that regularly do business with the US panicking and rushing into place alternative arrangements (such as using EU entities or data centres, or model contractual clauses with their US partners).

In the months since that case, the various EU authorities have been working feverishly with their US counterparts to put something else in place to replace Safe Harbour. Without it, transatlantic trade is damaged and uncertainty exists. On 29 February 2016, a new regime called The Privacy Shield was published in which a similar system to Safe Harbour is proposed (although still to be formally approved). At the same time, the US Judicial Redress Act has been made law by President Obama. It addresses many of the concerns of the Schrems case in relation to suitable enforcement remedies. The need to address the absence of Safe Harbour has pushed the Americans to get this legislation through, which many see as a singularly worthwhile result from the whole Safe Harbour debacle.

In parallel with those developments, the new EU General Data Protection Regulation has also been published in recent months. It has a number of potentially wide-ranging consequences which will increase the compliance and regulatory burden for businesses, so organisations should be glad that there are two years to prepare for it coming into force. This type of EU law doesn’t require the UK to implement it with its own Act – it will have “direct effect”, and the aim is for it to be enforced consistently across the EU.

Some headline developments in the new Regulation are as follows:

  • It is to apply to non-EU entities that process the data of those in the EU, regardless of where they are based. An interesting point in the context of Brexit.
  • It extends some obligations from controllers to processors (i.e. more individuals further down the hierarchy will have responsibilities).
  • There are stricter and much more onerous reporting requirements.
  • There are increased rights for individuals, including a right to erasure, a right to portability and a right to object to profiling.
  • There are heavier fines of up to €20m or 4% of global turnover.

So, it might not be quite as exciting as the latest Marvel movies (I may have exaggerated a little there), but there is a lot going on in the world of data protection, and some of it is very relevant to businesses of all shapes and sizes.

If you have any concerns about using US entities in relation to data storage, processing, etc or what preparations you need to make for the new Data Protection Regulation, please get in touch with Alison Marshall or Emma Arcari.

What Employers Can Learn from Chelsea FC and 3 Things to Know about Mediation

For anyone who has not turned on a television or read a newspaper since last August, Chelsea FC are defending claims of constructive dismissal and breach of contract brought by their former team doctor, Eva Carneiro. Then Manager Mourinho had criticised Carneiro for going on the pitch to treat a player and then she was dropped from first-team duties. Carneiro soon after terminated her employment with the Premier League Club.

Although it is expected that the case will be heard by Croydon Employment Tribunal on 6 June 2016, the parties recently came together at the Employment Tribunal for Judicial Mediation. And while employers can learn a lot from Chelsea FC on how not to manage employee relations, agreeing to Judicial Mediation is one thing they did get right.

Judicial Mediation offers an alternative way of resolving an employment dispute to that provided by a Tribunal hearing. It is facilitated by a trained Employment Judge and he or she will try to help parties find ways to resolve the dispute by mutual agreement. Sadly, it is not available in all cases; it is offered in complex unfair dismissal claims where Tribunal hearings are likely to last three or more days, where there is an element of discrimination or where there is an ongoing employment relationship. However, if you are defending such a claim and you have been offered the opportunity to participate in Judicial Mediation here are 3 reasons why you should consider doing so:

  1. It is conducted in private and in circumstances which are entirely confidential unlike Tribunal hearings. This can be invaluable for businesses where there is a lot at stake, reputation-wise. If Mediation is unsuccessful all discussions and events at Mediation will not be referred to at any subsequent Tribunal hearing.
  2. Mediation normally lasts for one day and there is no rigid structure as to how mediation will be conducted. On the other hand, Tribunal hearings can run to several days or, in some instances, weeks and there are strict procedural rules. Mediation therefore has the benefit of having a more informal or even relaxed environment that encourages discussion and (hopefully) resolution.
  3. There are often things an employer would have liked to have said at, say, the disciplinary hearing or in its defence to the claim made but didn’t for fear that it would prejudice their position. Mediation provides an opportunity to explain decisions, the thought process behind the decisions or anything else the other party may wish to know which again, encourages resolution. Sometimes, as is reported in the case of Carneiro, all the other party wants is an apology – a remedy the Tribunal can’t ordinarily award. Meditation can.

If you would like to discuss any aspect of dismissal or mediation you can contact me directly on 0845 22 33 001 or email donna.reynolds@ccwlegal.co.uk