Member News

The Information Commissioner’s new powers to impose fines of up to £500,000 for serious breaches of the Data Protection Act 1998 (the Act) or of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (Privacy Regulations) have now been widely reported. So far this year the Information Commissioner has been consistent in issuing at least one Monetary Penalty Notice (MPN) per month with fines ranging in value from £60,000 to £325,000. However, for most businesses the circumstances which can lead to the issuing of an MPN remain something of a mystery.

This article aims to shed some light on the circumstances in which the Information Commissioner may exercise its powers to issue a MPN and to outline some key steps which businesses can take to minimise the chance of a MPN being issued against them.

The Criteria for Issuing an MPN

In order to issue a MPN the Information Commissioner must be satisfied that:

(i) the Data Controller has seriously contravened the Act or the Privacy Regulations; and

(ii) the contravention was likely to cause substantial damage or distress and either:

(a) the contravention was deliberate; or

(b) the Data Controller knew or ought to have known that there was a risk that the contravention would occur and that it would be likely to cause substantial damage or distress but still failed to take reasonable steps to prevent it from happening.

When deciding whether this test has been satisfied the Information Commissioner will apply the following rules:

A serious contravention can arise as the result of a one off breach of the Act or Privacy Regulations or following a series of breaches.

The term damage refers to financial loss suffered by an individual whilst the term distress covers injury to feelings or anxiety suffered by an individual as a result of the contravention. If the damage or distress caused was considerable in importance, value, degree, amount or extent it will be deemed as substantial.

A contravention will be deemed to be deliberate if any one of the following conditions is fulfilled:

•the contravention was premeditated •the person concerned was aware of and did not follow specific advice published by the Information Commissioner or others and relevant to the contravention •the contravention followed a series of similar contraventions by the same entity and no action had been taken to rectify the cause of the original contraventions. A Data Controller is considered to know or ought to have known that there was a risk that the contravention would occur if:

•the likelihood of the contravention should have been apparent to a reasonably prudent person •the person concerned had adopted a cavalier approach to compliance and failed to take reasonable steps to prevent the contravention •the person had failed to carry out any sort of risk assessment and there is no evidence, whether verbally or in writing, that the person had recognised the risks of handling personal data and taken reasonable steps to address them. Where the Information Commissioner believes that the conditions for issuing a MPN have been met, a number of factors will be considered in deciding the level that the MPN will be set at. These will include whether the contravention was a one off or part of a series of similar breaches, whether there was a deliberate lack of cooperation and what steps were taken once the Data Controller became aware of the breach.

A summary of the MPNs issued so far this year is set out below to illustrate how the Information Commissioner has applied these criteria in practice.

MPN’s Issued in 2012

October 2012: a MPN for £70,000 was issued to Norwood Ravenswood Limited following the loss of a package of highly sensitive information about the care of 4 young children that was left on the street outside a London home for collection by the occupant upon their return home. By the time the occupant returned home the package had already been removed and it has not yet been located.

September 2012: A MPN for £250,000 was issued to Scottish Borders Council after pension records relating to former employees were found in an overflowing paper recycle bank located in a supermarket car park.

August 2012: A MPN for £175,000 was issued to Torbay Care Trust following the publication of sensitive personal information about 1,373 employees on the Trust’s website.

July 2012: A MPN for £60,000 was issued to St George’s Healthcare NHS Trust after sensitive medical details concerning a vulnerable individual were sent to the wrong address.

July 2012: A MPN for £150,000 was issued to Belfast Health & Social Care Trust after the Trust failed to report an incident compromising sensitive personal data relating to thousands of patients and staff to the Information Commissioner.

June 2012: A MPN for £90,000 was issued to Telford & Wrekin Council following two breaches of the Act. A report containing confidential and sensitive personal data was sent to the sibling of the child concerned instead of its mother. Whilst this incident was being investigated a second incident was reported to the ICO concerning inappropriate disclosure of foster carer names and addresses to a child’s mother. Both children concerned had to be re-homed.

June 2012: A MPN for £325,000 was issued to Brighton & Sussex University Hospitals NHS Trust after hard drives sold on an internet auction site were found to contain highly sensitive personal data belonging to ten’s of thousands of patients and staff.

May 2012: A MPN for £90,000 was issued to Central London Community Healthcare NHS Trust after sensitive personal data was faxed to an incorrect number. The contravention was repeated on numerous occasions over a number of weeks and concerned personal data relating to 59 data subjects.

May 2012: A MPN for £70,000 was issued to London Borough of Barnet after a burglary at an employee’s home led to the loss of sensitive information relating to 15 vulnerable children.

April 2012: A MPN for £70,000 was issued to Aneurin Bevan Health Board after a sensitive report containing details relating to a patient’s health was sent to the wrong person.

March 2012: A MPN for £70,000 was issued to Lancashire Constabulary after the discovery of a missing person’s report containing sensitive information about a 15 year old girl.

February 2012: A MPN for £80,000 was issued to Cheshire East Council after an email containing sensitive personal information was inadvertently distributed to 180 unintended recipients.

February 2012: A MPN for £100,000 was issued to Croydon Council following the theft of a bag containing papers relating to the care of a child sex abuse victim from a London pub.

February 2012: a MPN for £80,000 was issued to a County Council after details of allegations regarding a parent and the welfare of their child were disclosed to the wrong recipient.

January 2012: A Monetary Penalty of £140,000 was issued to Midlothian Council after sensitive personal data relating to children and their carers were disclosed to the wrong recipients on 5 separate occasions.

Practical Steps to Avoid MPNs

The key to avoiding a situation arising which may result in a MPN being issued against you is to ensure that you have solid data protection practices in place and, crucially, that you have instilled a culture of data awareness and sensitivity throughout your organisation. The majority of the MPNs issued this year could have been avoided had the individuals concerned been trained to follow data handling procedures or to simply apply some everyday common sense when handling data. Some key steps for businesses to take to minimise the risk of an MPN being issued against then are:

•conduct a data protection risk assessment to identify the data risks within your business and the steps that can be taken to address these •put in place appropriate policies, practices and procedures to ensure that data is handled in accordance with the Act and the Privacy Regulations and specifically address any particular risk areas and review and update these regularly •ensure that everyone within your business has had appropriate data protection training for the role they carry out and knows what policies, practices and procedures you have in place, where these can be found and who within the organisation they should address any questions or concerns to •maintain a written record to evidence the compliance steps that you have taken •consider whether you need to implement any technological measures to ensure the security of your data such as the use of encryption •pay particular attention to data protection issues where personal data of large numbers of individuals or sensitive data is concerned •keep an eye on the Information Commissioner’s Office website (www.ico.gov.uk) and review material issued by any relevant regulatory or advisory bodies for new guidance or codes of practice that may be relevant to your business and ensure that you apply these •take immediate action to resolve any known issues such as problems with IT systems •if you become aware of any suspected data breach take legal advice and contact the Information Commissioner’s Office immediately If the Worst Should Happen…

If you find yourself facing a MPN following a data breach, it should not come as a shock when it eventually lands on your desk. By the time the MPN is issued you should already have been through a period of communication with the ICO regarding the breach and are likely to be well aware that a MPN is on the cards. However, even at the stage where the breach has already occurred there are steps that you can take to mitigate the risk to your business:

•be pro-active in reporting breaches, taking legal advice and instigating your data breach procedures at the earliest possible stage •take any action appropriate to mitigate the effect of the breach •co-operate with the Information Commissioner both in assisting with any investigation into the breach and in following any suggestions that they make for mitigation of damage •you will receive a Notice of Intent and have a chance to make representations on this before the MPN is issued – find a legal advisor who can help you make appropriate representations •you can appeal a MPN and should ask your legal advisor to assist you in identifying any grounds of appeal that you may have and, if appropriate, in following the appeals procedure

On Friday, November 9th, Wymondham College is holding a “Futures” event at the Kings Centre in Norwich. This is a careers information day aimed at providing year 10 GCSE students (of three local schools) with information about routes into career opportunities in various sectors before they choose their post-16 study options.

The day runs from 10am-3pm, and we’re looking for speakers for thirty-minute slots that would run throughout the day which students would sign up to attend.

The aim of the talks would be to provide students with information about the various routes into your sector of employment, from apprenticeships, A-levels, degrees and vocational qualifications through to the ‘soft skills’ they would need to succeed, such as communication or presentation skills.

We can offer various time-slots to suit what works best for you:

10.45 – 11.15 11.30 – 12.00 12.00 – 1.00 = lunch break, although some talks can be scheduled during this time if contributors wish. 1.00- 1.30 1.45 – 2.15 2.30 – 3.00

Please get in touch if you are interested in speaking or hosting a stall.

Callie Oatridge Marketing and Development 01953 609000 ext 4385Oatridca.staff@wymondhamcollege.org

Enter the business card draw at the Bigfork stand at this Thursday’s B2B Exhibition and you could win a brand new Kindle. The Bigfork experts will also be available to discuss all things digital. See you there.

The long-heralded automatic enrolment of workers into pensions has finally commenced for the largest employers, with effect from 1 October 2012. Employment Principal Lorna Townsend provides an overview.

The requirement to automatically enrol all eligible workers into a qualifying pension scheme will eventually apply to all employers, but is being gradually phased in with the largest employers (120,000 or more employees on the payroll as at 1 April 2012) required to comply with the new duty from 1 October 2012.

Employers will be required to make minimum employer contributions into a scheme, or provide a minimum level of benefits. A qualifying scheme can either be an existing pension scheme (provided it meets the necessary qualifying conditions), a new scheme set up for this purpose by the employer, or a scheme set up by the Government known as NEST (National Employment Savings Trust).

Eligible jobholders must be automatically enrolled into a pension scheme; non-eligible jobholders may also ‘opt-in’ if they choose to do so. Employers must also provide information to workers about their new rights, generally within one month of the worker’s automatic enrolment rights arising.

Workers will have a statutory right to opt-out of the scheme within one month of becoming active members of the scheme, and will be entitled to a refund of any contributions. Workers cannot opt out of the scheme in advance of being automatically enrolled. Eligible jobholders who opt out of a scheme must be automatically re-enrolled every three years, and will have to opt-out again if they don’t want to stay in the scheme.

Automatic enrolment will apply to all employers over the next five years or so. The next staging date (for employers with between 50,000 and 120,000 employers) is 1 November 2012. Employers should check the applicable staging date for their organisation on the Pensions Regulator website.

The penalties for not complying with this new duty are severe, and employers should ensure that they take the necessary steps to comply as a priority.

Norfolk hoteliers, caterers and hospitality establishments will be well catered for, when a new exhibition opens at the Norfolk Showground in February 2013 Specialist Hospitality marketing company, 4HM Ltd, has announced plans to launch the Norfolk Catering and Hospitality Exhibition on Wednesday 13th and Thursday 14th February next year.

From breweries and crockery suppliers to linen services, catering equipment and fresh produce, the two day event will contain everything that catering, hospitality and accommodation providers could need under one roof.

4 HM Sales Director, Mike Riches, said “This is the first of what we hope will be a yearly, trade event highlighting and bringing the best of what Norfolk has to offer. “

Mike went on to add “There are so many firms in Norfolk dedicated to supplying the full range of hospitality outlets and we think it deserves its own trade show. There is space for over two hundred trade stands at the show and visitors can gain free access to the show with tickets that will be made available through suppliers, local media and the show website.

Mark Carr, Marketing Director for 4 HM announced “We are also delighted that our media partners for the event will be the ARCHANT Group based in Norwich and we look forward to releasing more details via the press over the coming months.”

Mr Riches added “We have had a fantastic response from business organisations across the county who see it as a fantastic opportunity for everyone in the industry to network. The Norfolk economy benefits by around £2.5 billion a year through tourism and 15 % of all jobs locally depend on it so this should be seen as a celebration of a successful part of the local economy.”

With a mix of national, regional and local suppliers there and all sectors of the supply chain catered for the event should be a curtain raiser to the 2013 tourist season in East Anglia.

For companies wishing to exhibit or people wanting to make ticket requests can contact 4HM

Last week I was delighted to join a panel of construction-industry ‘Green Dragons’ at the Pennoyer Centre in Pulham St Mary, to hear pitches from seven East Anglian businesses targeting opportunities in sustainable construction. It was a really enjoyable day away from the office, partly because as architects it is always nice to go back and see your own buildings in use, but mainly because of the range and creativity of the ideas presented.

My fellow Dragons were all senior staff from large contracting, construction and property businesses, exactly the sort of contacts the competitors in the Dragons’ Den-style event need to make as they look to grow their businesses. The finalists had been selected from a wider field of entrants in two previous selection-rounds by organisers Build Norfolk and BEST East.

• Essex-based Avalon Abseiling were stressed the cost- and carbon-savings to be gained by using their teams of professionally trained rock climbers for façade-maintenance on medium and high-rise buildings, instead of conventional scaffolding.

• Master-Thatcher Stephen Letch of Starston extolled the visual and environmental benefits of a traditional Norfolk building material, but was keen to show it in contemporary applications including as a wall-cladding.

• Ron Beattie of Beattie-Passive explained to the Dragons that his innovative design-and-build service, based on the German ultra-low-energy ‘Passiv-Haus’ accreditation system, could be used on commercial and community buildings as well as dwellings.

• Kenneth Gibbs of the Anglia Skills Academy wanted the Dragons’ feedback on possible applications of plastic-encapsulated concrete blocks containing asbestos construction-waste, as an alternative to disposing of it in land-fill sites.

• Enviro-Den Ltd showed their ‘Eco-Foil’ green-roof system installed on number of garden buildings and extensions, and asked the Dragons to help them find larger-scale applications for their elegant curved profile.

• DGT Structures presented their pre-fabricated steel-framed floor-cassettes, which they hoped could find wide-spread application in the house-building industry as a fast and cost-effective alternative to traditional joist or plank floors

The Dragons had a difficult task in selecting an overall winner from such a strong field, but in the end agreed that The Limecrete Company stood out from the rest. The Attleborough-based company run by Myles and Lou Yallop has pioneered the use of spray-applied ‘limecrete’ walling in East-Anglia. Hemp-fibres grown in the region are bound together with lime mortar to form a sort of light-weight and breathable ‘organic concrete’, which can be used instead of traditional concrete blocks as the main walling material in buildings up to three storeys.

Since scooping the top slot Myles has already met with Morgan Sindall to discuss how his product might be used in larger scale projects currently on the drawing-board. Hear his interview with Radio Norfolk here.

The event was master-minded by Stuart Thompson of Morgan Sindall (pictured, front right) who congratulates Myles Yallop (front left) on his winning pitch. Back row left to right: Paul Cockaday (NPS), Matt Wood (Lucas Hickman Smith), Jonathan Churchman-Davies (May Gurney) and David Henry (Kier Eastern).

Hear Myles’s interview with Radio Norfolk here.

More information and including all seven finalists’ presentations is available on Build Norfolk’s website here.

In Spring 2013, Wymondham College will follow schools in Madrid, Stockholm and Istanbul by playing host to the biannual session of the Model European Parliament. From the 7th to the 14th of April, 180 of the brightest and most ambitious young people in Europe will visit the school, representing their home nations in debates on issues of mutual concern and interest in some considerable detail over the course of the week. This will be the first session of the MEP to be held in the UK for 20 years and, with the help of our partners, the College will work with students from schools and academies all over Norfolk to make the most of this excellent opportunity for political debate and cultural exchange with our guests, who will be coming from 30 countries all over the continent.

The delegates, aged 16 – 19 and all fluent and confident English speakers, will be housed in the College’s modern Sixth Form boarding facilities in Lincoln House and committee sessions will be held in the new International Centre. For the Opening Ceremony, delegates will travel to Westminster at the kind invitation of the Speaker of the House of Commons. Our guests will also be visiting a number of locations in the region as part of their programme, including Cambridge and Norwich itself. The final plenary sessions will be hosted by the University of East Anglia at their campus just outside the city. As well as representing the UK as delegates, young people from all over the region will also be involved in facilitating MEP Norwich 2013 by chairing committees, presiding over the General Assembly and providing coverage of the event using the school’s new media suite.

The session will also give students from a wide range of local schools, academies and Colleges the opportunity to become involved with the MEP for the first time and will be an excellent opportunity for our guests to explore what Norwich, the wider region and the UK have to offer.

We need YOUR support

We need support from local companies to ensure that this high profile event is as successful as it can possibly be.

We have already secured support from organisations such Norfolk County Council, UEA, City College, Naked Marketing, and Park Farm Hotel, and are looking to secure further support to cover the associated costs of hosting the MEP.

In return, we can offer

– Invitations to College events, such as our lecture series, prize-giving ceremonies and black-tie events.

– Opportunities to speak directly to students as part of our Careers information sessions.

– A ‘business links’ presence on both the official MEP website and the Wymondham College website.

– Acknowledgement in our annual College Magazine, which is distributed to students, staff, parents and alumni.

– An invitation to the official launch of the MEP in January, which will be attended by local news broadcasters and publishers and all other sponsors.

– Brand exposure to 180 of Europe’s brightest and politically aware young people with your logo on printed materials for the event.

– A fantastic opportunity for CSR.

Through hosting the MEP, we are seeking to nurture and build strong reciprocal relationships between Wymondham College and local businesses. The benefits of these relationships will have a long lasting positive impact on our students: your prospective future employees. The MEP has not been hosted in the UK for over twenty years, and with your help, we hope to create a lasting legacy.

Are you interested?

For more information, please contact Madelaine Scragg: scraggma.staff@wymondhamcollege.org

British Franchise Association (BFA) Code of Ethics could apply whether or not the Franchisor is a bfa Member

The BFA’s Code of Ethics is a straight forward code which is designed to encourage ethical franchising amongst its members. The Code covers the minimum requirements expected from both franchisor and franchisee in respect of recruitment, advertising and disclosure and those terms which must and must not be included in the franchise agreement. The BFA has issued guidance on the Code’s application which is currently being revised and due to be published at the end of 2012.

It is generally assumed that the Code only applies to BFA members. However, the Code’ sapplication is wider than that. It is, therefore, worth reminding all franchisors in the UK (including non BFA members) that the Code could apply to them. The leading case on this topic dates back to 2004 regarding non BFA franchisor, Drivertime Recruitment (see Drivertime Recruitment Ltd and another company).

In the Drivertime case the court held that by neglecting to disclose failures of previous franchisees, failing to provide the level of support promised to potential franchisees, failing to provide local advertising and access to local blue chip leads and providing franchisees with unrealistic profit projections, the franchisor had specifically and purposefully evaded the Code.

The court noted that the Code was not binding law and that Drivertime was not a member of the BFA. However, the judge suggested the Code sets out a standard of “commercial morality which can be usefully applied in this unregulated industry”. Whilst it was significant in the Drivertime case that many potential franchisees specifically asked about previous failures of other franchisees and the franchisor failed to disclose accurate information, the judgment does reiterate the importance of complying with the Code: “It is obvious that any person asking about closures or failures wants to be given the full picture; honest answers to questions, and compliance with the BFA Code should have led Drivertime to reveal cases where the franchisee had left the network to set up in competition.”

So, this is a reminder to all franchisors to ensure that you read, understand and (most importantly) comply with the BFA Code of Ethics. A copy of the Code and guidance can be found on the BFA website: www.thebfa.org. Compliance should not be too onerous as ethical franchising will by its very nature operate in accordance with the principles set out in the Code.

Minimum Performance Standards must be reasonable

Franchisors typically like to set benchmarks and targets and provide template business plans for their franchisees in order to assist in the running of the franchise and to encourage performance. Targets should be set at an achievable level in order to stimulate rather than dishearten franchisees.

Franchisors also often stipulate minimum performance standards, the failure to achieve which may give rise to a right to terminate the franchise agreement. These minimum performance obligations need to be carefully considered. Under the BFA guidelines the levels set must be reasonable. Exactly what is deemed to be “reasonable” will vary depending on the type, size and maturity of the franchise network but the following should be considered:

• Against what is minimum performance measured? The BFA suggests that it should be no higher than 70% of the average of all franchisees which have been operating for at least a year.

• Is there an opportunity to remedy the failure? A remedial plan could be agreed, the territory reduced and/or exclusivity limited.

• How strict are the provisions? Is it simply failure to achieve minimum performance levels in any single quarter? Or, for example, is the franchisee allowed to fail in any one off quarter provided failure does not occur on two consecutive quarters up to a maximum of four in any 5 year terms.

The bottom line is that a franchisor should not simply use minimum performance standards as a tool to remove the low performers unless they are actually performing unsatisfactorily and only once they have been given the opportunity to improve.

For franchisees, it is incredibly important that at the outset a careful review is carried out of minimum performance obligations (especially if the franchise is not a member of the BFA) to ensure that the mechanism in place are reasonable and to comply with the BFA guidelines.

Deposits and Refunds Best Practice

Most franchisors ask prospective franchisees to pay an initial deposit. This is an entirely acceptable practice and is commercially sensible in order to weed out any time wasters and ditherers.

Nevertheless, any such deposits should be refunded in full if either party decides to withdraw. The only costs that the franchisor should be able to deduct from the deposit are those direct costs (for example, agents and/or legal fees but not including franchisor time) which have been incurred by the franchisor from the time the deposit was paid and which were clearly communicated to the franchisee in advance or agreed subsequently. The BFA has issued very clear guidelines on this point.

Franchisors should ensure that their standard form deposit / intent to proceed agreements are drafted appropriately.

Franchisees should ensure that they carefully read and understand the terms of any deposit / intent to proceed agreements before signing and paying a deposit, especially if the franchise is not a member of the BFA.

Legal issues recently reported on:

• Competition law: EU Block Exemption • Data Protection Compliance • Late payment interest • Serving notices • Disclosure requirements • Side Letters – are they enforceable? • Restrictions – do you have the flexibility to protect your brand? • Trademark – who holds it? • Olympics and Force majeure clauses • Bribery Act 2010 • Social networking • Remedial Plans vs terminating the franchise agreement

A new ecommerce website which sells heating oil tanks online has been launched for The Oil Tank Store. The website was designed and built through a joint partnership between Bigfork and By Design and is aimed at home owners in the UK. The website is fully functional and Bigfork are now carrying out an online marketing campaign including search engine optimisation and Google Adwords to drive traffic to the website.

To see the new site click here – The Oil Tank Store

In these tough economic times many of us are looking to save money. However, in terms of administering an estate, saving money now can cost in the long term. Karen Bacon, head of our wills and probate team, explains more.

The number of people dealing with the administration of a deceased person’s estate without professional help has increased in the past few years. With decreasing property prices, people have looked for ways to increase the amount of the estate available to be paid to the beneficiaries. However, there are many reasons to be cautious of taking this “DIY” approach and benefits to instructing a solicitor to deal with the estate.

The first thing you need to enable you to sort out the deceased person’s affairs is a legal document called a Grant of Probate. Solicitors are able to apply for a Grant on behalf of their clients without them having to go through the process of attending an interview with the Probate Registry.

A solicitor can often advise ways in which money can be saved, for example by reducing the inheritance tax due on the estate. If the person who died was a widow or widower then the nil rate allowance (the rate below which no tax is due – currently £325,000) could potentially be doubled to £650,000. At Steeles Law, we recently helped a client claim the unused nil rate allowance from her husband’s first wife’s estate. She had died in the 1980s and there was little evidence as to how her estate had been distributed. However, we gathered sufficient information to persuade HM Revenue & Customs to allow the 100% increase in the nil rate allowance. This saved our client a tax bill of £130,000!

Since 2010, executors have been liable for capital gains tax at 28% on increases in the value of assets between the date of death and the date of sale. We can advise on the best way to deal with the estate to avoid or reduce the tax liability and can also assist you with carrying out variations to the distribution of the estate to take advantage of tax rules. Similarly, we can assist with transferring property to beneficiaries and will identify any associated problems that may arise.

Finally, many Wills include provisions to set up trusts – either life interest trusts or discretionary trusts, which were popular before October 2007 and used to save inheritance tax. If these trusts are not properly dealt with during the administration of the estate, then they can cause significant problems at a later date.

A typical example is where Mr Smith dies and his Will contains a discretionary trust for his wife and children. The trust is no longer required in order to save inheritance tax so his family simply ignores it and distributes the estate as though the trust had not been included in the Will. When Mrs Smith dies her executors will encounter difficulties and may find that Mrs Smith cannot claim the double inheritance tax allowance. The best solution is to get expert advice at the time and not ignore something in the Will that is not clear to you.

At Steeles Law, our wills and probate team can offer a range of probate services – from an initial fixed fee interview to discuss what steps need to be taken, to the full administration of an estate. We can also advise on all types of trusts and estate planning.

We welcome the news that the Legal Services Board will recommend to the Lord Chancellor that estate administration and probate should only be carried out by regulated legal professionals. This will give greater protection to consumers who seek help with the administration of a deceased person’s estate from someone other than a solicitor, but there are no safeguards for those seeking to handle administration of a deceased person’s estate without any professional help

For further information, please contact Karen Bacon on 01379 652141 or kbacon@steeleslaw.co.uk.

A recent decision of the Employment Appeal Tribunal (EAT) has confirmed that an employment tribunal, when assessing the fairness of a dismissal, cannot take into account reasons other than those that were in the mind of the employer at the time. Professional Support Lawyer Elizabeth Stevens and Trainee Solicitor Laura Tanguay report.

The claimant in this case, Mr Nejjary, worked as a hospitality manager for Aramark Ltd providing hospitality services for Goldman Sachs. Mr Nejjary was accused of failing to check a booking sheet for an event, leading to a complaint from the client about the service provided at the event.

In both the disciplinary and appeal hearings, Aramark considered this booking error and other recent complaints in isolation. Despite there being previous recorded warnings on his file for similar incidents, these incidents were not relied upon in the decision to dismiss Mr Nejjary for gross misconduct.

Aramark concluded that the single booking failure alone justified dismissal. Consequently, Mr Nejjary brought a claim for unfair dismissal on the basis that dismissal was not within the range of reasonable responses for a single booking failure.

The employment tribunal found that summary dismissal would normally be outside the range of reasonable responses for this incident, but that Mr Nejjary’s previous written and verbal warnings for similar failings meant that dismissal was within the range of reasonable responses. The claimant’s claim for unfair dismissal was therefore dismissed. Mr Nejjary appealed this decision.

On appeal, the EAT held that the relevant ‘reason’ for dismissal is the employer’s actual reason for dismissal, and not any other reasons for which the employee might otherwise have been dismissed. Aramark had disregarded the previous disciplinary matters in their reasons for dismissal, and it was not permissible for the tribunal to substitute a reason or supply an additional reason which did not form part of Aramark’s considerations at the time.

Mr Nejjary’s appeal was therefore allowed by the EAT and his claim for unfair dismissal succeeded.

Comment

The legal test to consider in these circumstances is one of ‘reasonableness’ – i.e. whether it was reasonable for the employer to dismiss the employee in the circumstances. The ‘circumstances’ are limited to the specific issues that had been in the employer’s mind at the time when making its decision, and do not include factors that the employer might have taken into consideration, but did not. In this case, the employer should have made reference to the previous warnings in reaching its decision to dismiss.

A copy of the EAT judgment is available here.

FXhome, the fast-growing UK video and photo editing and effects software developer, has secured a major distribution deal with The F.J. Westcott Company (Westcott), a leading supplier of photographic and video equipment worldwide.

The deal will see FXhome’s cutting-edge offerings including PhotoKey5 and HitFilm2 (due to be released shortly) available in stores and malls worldwide.

FXhome marketing manager Tom McLoughlin said: “FXhome has a well-established online route to our enthusiastic user community. Through partnering with Westcott, we will be able to leverage their brick and mortar contacts in this marketplace and benefit from their reputation & scale. We are confident that this deal will see tens of thousand of new users join our customer base over the next two years.”

Westcott will be offering starter bundles for photographers including the brand new PhotoKey 5 Lite, and a bundle for filmmakers including HitFilm Standard. Westcott will also distribute and sell PhotoKey 5 & PhotoKey 5 Pro directly to customers and their reseller network.

Soon, Westcott will also offer the powerful and exciting new video effects and editing packages HitFilm2 Express & HitFilm2 Ultimate following their release in Q4 2012.

The deal assigns Westcott exclusive rights to manufacture and distribute physical copies of the FXhome range of software worldwide, whilst FXhome will continue to manage direct download sales through its websites FXhome.com & HitFilm.com.

“We have been working with FXhome since 2009 and have been impressed by the results of FXhome products, backed up by outstanding customer feedback. We are delighted to become FXhome’s exclusive retail distributor” said Kelly Mondora, Vice President at Westcott.

More information can be found on the FXhome website.