The Unfair Dismissal Variation of Qualifying Period) Order 2012 came into force on 6 April 2012. It increased the minimum qualifying period of continuous employment necessary to claim unfair dismissal, and entitlement to written reasons for dismissal, from one to two years. This means employers could have two classes of employees with differing rights to claim unfair dismissal. This is because these changes do not affect employees whose period of continuous employment began before 6 April 2012. Employers need to be aware of this distinction and, in particular, consider if an employee may be able to claim the period of…
Rodeny Hylton-Potts, Lawyer I own a chain of boutiques. Our store is recognisable by its bright blue and pink stripy interior, which we use for our packaging. It has come to our attention that an online swimwear distributor’s website is using our unique colour combination in the same get up and fashion. The company could easily be confused for the online arm of our boutique. Can we contest this? Your lawyer should write to the distributor threatening “passing off” proceedings and you should be prepared to start them if your warning or any subsequent correspondence does not persuade them to…
Rodney Hylton-Potts, Lawyer I discovered that a hire at my company included false information on his CV. It turns out he was dismissed from his last role following a disciplinary hearing for gross misconduct. He told me he was made redundant. He has been in my employment for two months. Do I have grounds to dismiss him? If you are confident that your information about the finding of this gross misconduct is correct (and you have evidence of this), you can proceed to dismissal. As he has only been with you for two months, he does not have the qualifying…
Rodney Hylton-Potts, Lawyer Since 1 April 2013, the family courts have had the power to make a legal services order, which is a new form of interim order compelling one spouse to make provision for the other’s legal costs. Historical position The new provisions go beyond the family courts’ power to make a costs allowance within a maintenance pending suit. Since the decision of Holman J in A v A (maintenance pending suit: provision for legal fees) [2001], the definition of ‘maintenance’ was interpreted to be wide enough to include a monthly provision for the payment of legal fees. The…
First published in the Solicitors Journal and reproduced with their permission. Jill Lorimer considers changes to the necessity of arrest, 17-year-olds in custody and police retention of data Defence practitioners have long struggled to persuade police officers that the “necessity” test for arrest in section 24(4) Police and Criminal Evidence Act 1984 (PACE) has not been met in circumstances where a suspect is able and willing to be interviewed under caution on a voluntary basis. On 12 November 2012, Code G to PACE was amended with the effect that it is now much more difficult for the police to justify…
First published in the Solicitors Journal and reproduced with their permission. Lawyers have a lot to consider when advising the company director asked to sign a guarantee, says Jonathan Silverman Solicitors can find themselves facing a difficult dilemma when advising companies and their directors if a situation arises when the business’s bank or landlord, a supplier or factor suddenly demand personal guarantees to support the company’s obligations. As a general rule the first step should be to explore with the clients any possibility of avoiding giving guarantees at all by looking for potential collateral within the business, such as a…
I run a building company and we recently took on an apprentice electrician. At first, this young man was doing quite well but it soon became clear that he had little or no interest in the work. Inevitably, he started to become more trouble than he was worth, and after about four months I told him it was not working. I have now received a letter from a solicitor saying that I didn’t fulfil my obligations to provide him with a good training, and threatening to take me to an employment tribunal. Can he do so? There are currently two…
I own a successful consultancy company and have decided to set up an office in China. I am sending a senior member of staff out to Beijing on a six-month secondment. Is he governed by UK employment law, or that of China? Are there any conditions I need to include in his contract? Most of what is required to set up an office in China is typically handled more cheaply and efficiently by outside advisers, not within your own company. You will only need to send a staff member to China on a few occasions, the number of which depends…
By Rodney Hylton-Potts. Intellectual property specialist lawyer. I have recently set up my own online shop and paid a substantial amount for a domain name. As my website gained more hits I noticed that another ecommerce company had bought some very similar domain names. Is this ecommerce company infringing my intellectual property rights? If the ecommerce company trades via the domain names it may infringe unregistered rights in the name you use for your domain, or (if you have one) a registered trade mark covering that name. Even if it is not trading via the domain names, you can bring…
By Rodney Hylton-Potts specialist insolvency lawyer My manufacturing company that is in serious financial difficulty. To avoid administration we have been advised to put together a restructuring proposal to our investors. There are concerns that the shareholders, who are already disgruntled, will not support it. Does the company have any legal power to compel the shareholders to agree to the proposal if it is in the company’s best interests? If not and they reject it, is administration our only option? Once a company is insolvent, the interests of creditors override those of shareholders who are generally slow to recognise the…
