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Archive for the ‘Legal updates’ Category

An employer sent me an email yesterday as follows: “I’ve received a letter from TV Licensing regarding licenses on commercial/business premises. Apparently employees would be breaking the law if they watched TV or recorded TV programmes on computers, laptops etc. ”  This is correct to some extent (see references to ‘Live’ programmes and similar terminology) so employers need to have policies in place to ensure that employees are not in breach of copyright regulations. (Our standard policies include this precaution see Employment Law Essentials). Here are the specifics, as usual the devil is in the detail  and the following extract from Advice Guide is a practical start.

Who needs a television licence?

You need a TV Licence to use any television-receiving equipment to watch or record TV programmes as they are being shown on TV. These include programmes on the BBC, ITV, Channel 4, Channel 5, cable and satellite television. Television-receiving equipment includes:

  •     TV sets
  •     set-top boxes
  •     DVD recorders
  •     video recorders
  •     computers and laptops
  •     mobile phones or other battery-operated devices
  •     games consoles

You don’t need a television licence if a TV set cannot receive TV programmes and is used only:

  •     for close circuit monitoring
  •     for watching pre-recorded videos or DVDs
  •     as a computer monitor – see under heading You don’t use your television set or other device to watch or record broadcast programmes.

You don’t need a TV licence if you only ever watch catch-up services, like BBC i-Player, that let you watch programmes after they have been broadcast.

A television licence allows the person named on it and any member of their household to use one or more television sets or video or DVD recorders at the address covered by the licence. If you are covered by a licence at your home address you are also covered to use a battery-powered device, such as a laptop or mobile phone, to watch live TV when you are away from home.

If you only have a black and white television, you only require a black and white television licence. If you have a colour television, a DVD recorder or video recorder, you will require a colour television licence. This will apply even if the DVD or video recorder is used with a black and white television set.

You don’t use your television set or other device to watch or record broadcast programmes

If you do not use your television set, video recorder or DVD player to watch or record live broadcast programmes (that is, BBC, ITV, Channel 4, Channel 5, cable television or satellite television) you will not need a licence. This means that you would not need a licence if, for example, you only:

  •     use the television set as a computer monitor
  •     use the television set to play electronic games
  •     watch pre-recorded videos or DVDs, whether or not these have been bought or recorded by someone else

However, the television set must be incapable of receiving all live broadcast programmes. This could be done, for example, by making sure that a television set, DVD or video recorder are not:

  •     tuned into any channels
  •     connected to an aerial
  •     connected to any cable or satellite services

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BIS, The Department for Business, Innovation and Skills has published guidance on the Agency Workers Regulations 2010 which will come into force on 1st October 2011.
As expected, the Regulations provide that agency workers who have been engaged for 12 consecutive weeks with an organisation, will have the same rights to pay, benefits, rest periods and holiday entitlements as permanent workers within that organisation even though they are hired on a temporary basis.
Organisations using agency workers will therefore need to budget for the increased costs and may decide that it is easier in some cases to employ workers direct.

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The court has decided that an employer may be liable to a former employee for damages for negligent misstatement when making statements about him to a future employer.

Mr. McKie was a well regarded employee of Swindon College. He received an excellent reference when he left. He later joined Bath University where his new job involved contact with the former employer, Swindon College. The former employer’s new HR Director was responsible for a damaging email about Mr McKie being sent to Bath University. On the facts this was “fallacious and untrue” and its preparation “sloppy and slapdash”.  As a result, Mr. McKie lost his job at Bath University.

It has long been the case in UK employment law that an employer will be liable for damages if he or she gives an employee a reference which was negligently prepared. What exactly amounts to ‘negligence’ is dependent on the circumstances. However, this decision has now been extended from the act of giving ‘references’ to the much wider field of ‘communications’ in general.

Employers should always take care to ensure that any communications about former employees are accurate and appropriate in the circumstances and that UK employment law in areas such as data protection is observed.

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The Code of Practice on Workforce Matters in Local Authority Service Contracts has been withdrawn according to the Communities & Local Government Department.

The Code was introduced in 2003 and applied to TUPE staff transfers in England and Wales where they involved local authority service contracts. The Code ensured that employees who joined the dedicated team after the transfer were not disadvantaged.

The idea was that this redressed the two tier worforce that had started to emerge as a result of employees being hired in on less favourable terms and conditions after a transfer. These employees joined the transferee organisation and sat along side team members who were on better terms and conditions because they were protected by TUPE Regulations.

But in any case this isn’t unusual because transferring employees often join new teams that are subject to less favourable terms and there is no obligation to ‘improve’ those terms in line with the new joiners!

Caution: This decision is not retrospective, so if your service contract is already covered by the Code it will continue to be so.

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Unless the contract of employment states or can be interpreted otherwise, notice to leave will run from the day after it is given, irrespective of whether notice is given verbally or in writing.

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Tesco Law comes into effect in October this year (AKA The Legal Services Act 2010) and with it the floodgates of private investment in law firms. This could mean that before long your employees could help themselves to legal advice for their personal injury, house move and tribunal claim while buying a newspaper in their high street store. According to some commentators, it will be difficult not to if slick marketing techniques are applied in pursuit of profit as they have been by other de-regulated industries.

It is arguable that when Craig Holt launches his accessible legal services shops within a shop, ‘law’ will not ony become more accessible and affordable, but we could also become more litigious.

This article in The Lawyer is worth reading not only for itself but also for the wry comments posted by lawyers smarting at the idea of their lunch being eaten in W.H.Smith’s.  Many argue that  standards may fall too…. allegedly.

My concern is that if QS venture into employment disputes on behalf of employees, employers will be forced to make financial settlements for flimsy claims arising out of grievances that would otherwise  have blown over in the normal course of events. All the more reason for employers to ensure they have belt and braces in place when it comes to employment contracts and basic HR policies and procedures.

 

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A managing director was dismissed in preparation for a TUPE transfer and the EAT has held that this amounted to unfair dismissal.  It also found that there was no ETO (Economic, Technical or Organisational reason) defence because a company cannot operate without an MD. Good point! For those delegates who have recently attended my TUPE workshops I hope that EAT decision makes sense. Reference: Spaceright Europe Ltd. v Baillavoine.

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