A celebrity chef has won a gagging order in London Central Employment Tribunal preventing the press reporting the claims of two disaffected ex-employees.

The order was granted yesterday at a preliminary hearing before the Employment Tribunal and requires the Chef to be known only as ‘L’, and his business as ‘K Ltd’. Tom Lyndon, the chef's representative, told the hearing he was afraid thatdisclosing evidence to the newspapers' legal departments could see it shared with reporters "by accident". The two employees have issued Tribunal claims for unfair dismissal, age discrimination, a failure to provide a written contract of employment and non-payment of wages. Further details cannot be revealed without breaching the order.

The Order has attracted criticism as it is unclear whether the Order was granted as a ‘Restricted Reporting Order’ or an order under Rule 16 of the Tribunal Rules which provide that, in certain circumstances, hearings (or part of them) can be held in private. These circumstances include where the submission of evidence might damage the business or organisation in which the person giving evidence works.

A "restricted reporting order" may be made by an Employment Tribunal in any case involving an allegation of sexual misconduct and in Disability Discrimination Act cases involving evidence of a personal nature. The order specifies who may not be identified in a report of the case. Deliberate breach of such an order is a criminal offence. In either case, a Tribunal’s decision to grant an order should be supported by reasons, however we understand that no reasons were given in this case.

It is expected that the Chef will apply at a future hearing for the Order to be made permanent, however it is to be challenged by lawyers acting for a number of national newspapers.  This Tribunal gagging order and will no doubt fuel the outcry about the restrictions on freedom of speech in the growing number of super-injunctions granted in the courts.

For further information, please contact Jon Curtis on 0114 272 1903

A new report from consumer watchdog, Consumer Focus, ‘In Case of Emergency’, reveals that Before the Event Legal Expenses Insurance (BTE LEI) could play a bigger role in widening access to justice, but the current design and promotion of these products leaves them a long way short of the mark.

There are two types of Legal Expenses Insurance. After-the-event (ATE) and before-the-event (BTE). ATE can be taken out following an accident or once a legal dispute arises, usually under a ‘conditional fee arrangement’. BTE can be bought prior to any dispute ever arising. Unlike conventional insurance, LEI does not make a direct payment for a claim. Instead, the insurance covers the legal costs in pursuing or defending the claim.

Legal Expenses Insurance typically costs between £13 and £24 a year and is commonly bought as part of a bundled insurance product, like motor or home insurance. It usually entitles the buyer to free legal advice and representation related to their civil dispute.

Forty-three percent of people surveyed by the watchdog said they knew little or nothing about legal expenses insurance – this is despite the fact that an estimated 25 million UK households currently have this type of cover. Around six in 10 consumers already pay for this insurance in some form and the UK legal expenses insurance market is worth some £447 million.

The watchdog’s report includes consumer research and an analysis of BTE LEI insurance products, including their terms and conditions and how they are sold. However, the ‘In Case of Emergency’ report also raised clear problems with the design and promotion of these products:

• Legal expenses insurance does not provide comprehensive cover. It will not cover many legal issues such as family disputes or mental health issues, for instance. It is also geared toward higher income consumers – it is not easily accessible to, or purchased by, people with lower incomes.
• Customers are confused by legal expenses insurance with 43 per cent saying they knew little or nothing about it. Seventy per cent were unsure if they would change or improve anything about their legal insurance policy – suggesting they weren’t sure about what it actually covered.
• Consumers are not able to choose their own solicitor – they must use one supplied by the insurer. In-house lawyers often do the initial assessment of the case raising issues over whether the insurer is working for the claimant or the insurer. This clearly raises issues of impartiality, as do ‘referral fees’ law firms pay insurance companies in order to be a preferred firm for its business.
• It is difficult for consumers to compare products and shop around for the best deal because legal expenses insurance is usually bought as an add-on to motor or home insurance. Different insurers cover different types of dispute with varying claim levels and coverage, and key information is often buried in the small print.
• Customer dissatisfaction – Consumers who had made a claim reported a number of complaints including lengthy claim times (37 per cent said their claim took a long time.) A third reported their claim was refused with no explanation.
• Consumers could unwittingly end up paying twice for coverage – some aspects of a legal insurance policy may already be covered by a packaged bank account, trade union membership or other insurance policies such as fully comprehensive motor insurance.

It is more likely than not that you already pay for legal expenses insurance in one form or another. In the event that you have a claim that you wish to pursue, please contact us for an initial discussion on the ways in which your legal expenses could be funded, and for an assessment of whether your current insurance arrangements provide cover for the type of claim you may wish to bring.  Call Jon Curtis on 0114 272 1903

The Government announced at the end of March that the Bribery Act will come into force on 1st July 2011, and also published its much anticipated Guidance on the legislation. The main Guidance produced should help commercial organisations adopt procedures (appropriate to their size and business environment) to prevent persons associated with them (eg. their agents at home or abroad) committing acts of bribery and thereby reduce their exposure to prosecution under the Act. There is also a useful Quick Start Guide, aimed specifically at SMEs. The main thrust of the Guidance, however, offers reassurance to businesses that "combating bribery is about common sense, not bureaucracy".

So, what does the Bribery Act mean for you?

In short, the Bribery Act will:

• Introduce a corporate offence of failure to prevent bribery by persons working on behalf of a business. A business can avoid conviction if it can show that it has adequate procedures in place to prevent bribery.
• Make it a criminal offence to give, promise or offer a bribe and to request, agree to receive or accept a bribe either at home or abroad. The measures cover bribery of a foreign public official.
• Increase the maximum penalty for bribery from seven to ten years imprisonment, with an unlimited fine.

The key points to note from the guidance are as follows:

Corporate Hospitality - The guidance makes clear that reasonable hospitality to meet, network and get to know your clients will not fall foul of the new legislation. #

‘Adequate Procedures’ Defence - The Act recognises a statutory defence of having ‘adequate procedures’ in place, in the event that an offence of ‘failure to prevent a bribe being paid’ is brought. The procedures that need to be put in place in order to rely on the statutory defence need only be proportionate to the size and nature of your business. So, whereas major multi-nationals must exercise greater due diligence and have more detailed compliance procedures in place, verbal communication may suffice for a small company. If there is very little risk of bribery being encountered by members of your company or on its behalf, no specific bribery prevention policies will be required to be put in place.

Associated Person  - A company will only be held criminally liable for the acts of an "associated person" where that person actually represents or performs services for it and the bribery committed is intended to benefit that company. It is very unlikely therefore that a company will be liable for the actions of someone who simply provides services to it.

Facilitation Payments - Facilitation payments, which are payments made to induce officials to perform routine functions that they are obliged to perform in any event, remain illegal under the Act.

Prosecution - Cases may be brought only when either the Director of Public Prosecutions or the Director of the Serious Fraud Office is satisfied both that:

• a conviction is more likely than not; and
• prosecution is in the public interest.

An Action Plan - The Ministry of Justice has previously offered guidance to commercial organisations on the steps to take towards ensuring compliance with the legislation. They advise of the need for an action plan:

• Conduct a risk assessment within your own organisation
• Adopt a code of conduct which sets out how employees and other associated persons should behave from an anti-corruption point of view
• Appoint a compliance officer
• Conduct due diligence to ensure and review compliance with the code

Ironmonger Curtis is on hand to advise you on the implications of the Bribery Act 2010 for your particular organisation and to assist with the implementation of an ‘action plan’. Please telephone Jon Curtis on 0114 272 1903.

From Monday 4 April 2011 the civil court fees in England and Wales rose by varying degrees.

The following table sets out the court fees now payable on issuing a county court claim for money.

The fee is based on the amount of money claimed including interest.

TUPE and pre-pack administrations

In a hugely important case impacting on the sale of companies that have gone into admistration - OTG Ltd v Barke and others UKEAT/0320/09 and ors - the Employment Appeals Tribunal (a court senior the an Employment Tribunal) has held that "administrations" (including pre-pack administrations) are NOT capable of constituting "bankruptcy … or … analogous insolvency proceedings which have been instituted with a view to the liquidation of the assets of the transferor" within the meaning of regulation 8(7) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) and article 5.2 of the Acquired Rights Directive.

This means that the key regulations 4 and 7 of TUPE do apply to a sale by an administrator (even in a pre-pack situation) meaning that the employees will transfer to the buyer and have special protection against unfair dismissal.

There has been some recent excitement among company-representing employment lawyers in that there appeared to be a way of avoiding the most tricky TUPE elements if a company went into adminstration and the employees were dismissed prior to sale. 

However, the EAT chose not to follow the leading case in this area, Oakland v Wellswood (Yorkshire) Ltd UKEAT/0395/08. Frankly this puts us back to the "normal" position - if an undertaking, or part of an undertaking, is sold, TUPE applies, even if the undertking is sold by an adminstrator!

What is auto-enrolment?

• From October 2012, every business in Great Britain will be required to automatically enrol eligible “jobholders” in a pension scheme. A “jobholder” will include permanent, fixed-term and temporary employees, as well as agency workers.

• Businesses can use their existing occupational or personal pension scheme if it meets statutory quality requirements. Otherwise they will have to enrol jobholders in the National Employment Savings Trust (NEST), a central defined contribution scheme to be set up by the government.

• A defined contribution scheme (also known as a money purchase scheme) is a pension scheme in which an employer and employee pay fixed contributions. The employee receives a pension or annuity at retirement, the size of which depends on the contributions paid and the investment return on those contributions over the member’s working life.

• Employees may opt-out of either scheme, but only once they have been automatically enrolled.

• Businesses must pay a minimum level of pension contributions for each employee.

• The requirement to automatically enrol eligible jobholders will be phased in over a four year staging period from October 2012, with larger businesses required to comply first.

• Businesses will be required to automatically re-enrol eligible jobholders every three years after they first become subject to the statutory employer duties.

Summary of reviewers’ recommendations

No exemption for smaller businesses

Small businesses should not be exempted from the auto-enrolment requirements since this would exclude 1.2 million employees from the reforms and create substantial enforcement problems.

Changes to NEST

• The annual contribution limit (set at £3,600 in 2005 prices) should be removed once the four-year staging period has been completed.

• The planned ban of transfers into and out of NEST should be reviewed in 2017. NEST should be able to receive and make transfer payments once auto-enrolment is established.

Raising the income threshold at which individuals are auto-enrolled

• Jobholders should only be automatically enrolled once they reach the income tax threshold (which will be £7,475 in 2011). This is higher than the currently planned income threshold for auto-enrolment of £5,035.

• Contributions will be based on earnings in excess of the National Insurance earnings threshold (£5,715 in today’s prices). Employees who have been automatically enrolled will continue to pay contributions until their earnings drop below this level (unless they opt out).

• Any employees with earnings between these thresholds will be able to opt in and receive an employer contribution.

No change to the age limits

The age band for eligibility should remain at age 22 to the state pension age. Retaining the state pension age as the upper age limit will give people access to pension saving during their normal working lives and avoids automatically enrolling people for whom saving is no longer the right option.

Three-month waiting period before an employee is automatically enrolled

A three-month waiting period should be introduced to avoid automatically enrolling employees who leave employment soon after joining (for example, seasonal or temporary workers). This will also allow businesses to align enrolment dates with their own payroll systems.

Introduce a simplified certification process for defined contribution schemes

A defined contribution scheme could be certified as meeting the requirements if it satisfies any one of the following criteria:

• A minimum 9% contribution of pensionable pay (including a 4% employer contribution).

• A minimum 8% contribution of pensionable pay (with a 3% employer contribution) provided pensionable pay constitutes at least 85% of the total pay bill.

• A minimum 7% contribution of pensionable pay (with a 3% employer contribution) provided that the total pay bill is pensionable.

Allow businesses to voluntarily comply as early as July 2012

Businesses that are scheduled to automatically enrol in October and November 2012 should be allowed to automatically enrol ahead of the planned start date of October 2012, and as early as July 2012, if they want to.

The right to be accompanied

Employees have a statutory right to be accompanied to a disciplinary hearing by a ‘companion’ when the hearing could result in:
- A formal warning being issued; or
- The taking of disciplinary action (e.g. being demoted or dismissed); or
- The confirmation of a warning or disciplinary action (i.e. an appeal hearing).

For these purposes ‘companion’ means a fellow worker, a trade union representative or a certified official employed by a trade union.
So, unless entitled to do so in their contract, an employee generally has no right to bring a lawyer into a disciplinary hearing as their ‘companion’. However…

When a lawyer can be a ‘companion’ – a human rights argument!

The Court of Appeal decided in the recent case of G -v- X School that under article 6 European Convention on Human Rights (in a nutshell the right to a fair trial) an employee does have the right to be legally represented in disciplinary hearings which could in effect determine an employee’s right to practise a profession.

G -v- X School, the facts

The claimant was a teaching assistant accused of having sexual contact with a 15 year old. Criminal proceedings were not brought but the claimant was dismissed after an internal investigation and disciplinary hearing.

He was then reported by the school to the Independent Safeguarding Authority (ISA) to consider whether he should be placed on a list prohibiting him from working with children. This would effectively end his chosen career as a teaching assistant.

Following the principles of the right to be accompanied, the claimant was not allowed to have legal representation at his hearing or appeal hearing.

The decision

The claimant won his case on the grounds that:
1) The right to practise a profession was a civil right and therefore protected by human rights legislation;
2) Being on the ISA’s list prohibiting him from working with children would effectively end his ability to carry out his profession; and
3) The school’s procedures would have a substantial influence on the ISA’s final decision on whether to put him on the list or not.

The consequences

At the moment, it seems unlikely that this case will allow the floodgates to open and for lawyers to start popping up in disciplinary hearings as a matter of course. However, when the outcome of a disciplinary procedure has ramifications beyond current employment, threatening an employee’s ability to carry out his profession, employers should tread a lot more carefully on the ‘companion’ issue.

Employers who feel intimidated by the prospect of facing a lawyer across the table in a disciplinary hearing should remember that they can always obtain their own legal representation. Of course, having to spend time in a room with two lawyers might put them off this!

For further advice or assistance with any of the issues in this article, please feel free to contact Jon Curtis on 0845 225 2635.

- initiatives to improve the environmental performance of commercial property