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Where different works

With every year comes a whirlwind of new laws and regulations.
 
This blog sets out a few new laws and regulations that will come into force in 2018.
 
EMPLOYMENT ALLOWANCE RESTRICTED FOR ILLEGAL WORKERS (PROPOSED): APRIL 2018
 
The UK Government intends to introduce further deterrents to prevent the employment of illegal workers within the UK.
 
What’s new?
 
  • An employer will be unable to claim the Government Employment Allowance for a period of one year if they have:
    • Hired an illegal worker
    • Been penalised for their actions by the Home Office
    • Exhausted appeal rights in relation to the imposed penalty
 
DRONE BILL (PROPOSED): SPRING 2018
 
The Government intends on publishing a draft law which will require the registration of drones that fit certain criteria.
 
What’s new?
 
  • Drones over 250g will need to be registered;
  • Leisure pilots need to complete a pilot test;
  • Safety awareness tests are required to ensure a drone’s flight is safe and legal;
  • Police seizure powers of illegal drones; and
  • ‘No-fly zones’.
 
 
THE IMPOSITION OF GENERAL DATA PROTECTION REGULATIONS: MAY 2018
 
This is the biggest change in data protection rules in over two decades. It replaces the Data Protection Directive 1995. It will also survive Brexit. If you’re currently subject to the DPA, you will likely be subject to the GDPR.
 
What’s new?
 
  • Rights for individuals to access the information that companies hold about them;
  • Universal application to all controllers and processors of personal data;
  • An obligation for better data management of businesses;
  • Increased requirements for the appointment of a Data Protection Officer;
  • Increased consent requirements; and
  • Increased fines for non-compliance.
 
The full GDPR can be found at http://ec.europa.eu/justice/data-protection/reform/files/regulation_oj_en.pdf
 
EU TRADE SECRETS DIRECTIVE: JUNE 2018
 
This directive will harmonise the definition of trade secrets. It will put companies, investors, creators and researchers on an equal footing, however journalists will still be free to investigate and publish business affairs as they do today. If you’re in business, it will require a refresh of your contractual terms, policies and procedures.
 
What’s new?
 
  • Harmonised definition of trade secrets;
  • Reasonable steps to keep matters secrets;
  • Companies must follow legal obligations to disclose information of public interest;
  • Safeguards for those acting in public interest who disclose a trade secret to reveal illegal activity, misconduct or a wrongdoing; and
  • Secondary liability.
 
The full TSD can be found at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016L0943
 
 
HOUSING AND PROPERTY
 
In the wacky world of housing and property, we have the following to get excited about:
 
  • The Government announced on 28 December that they would re-visit Houses of Multiple Occupancy, primarily widening mandatory licensing and introducing minimum room sizes.
  • At the same time, the Government also announced plans for a ‘rogue landlord’ database. The Greater London Authority already has one.
  • There are plans to review new-build leaseholds, namely scrapping ground rents (for both houses and flats) and preventing houses being leasehold.
  • The Homes (Fitness for Human Habitation and Liability for Housing Standards) Bill gets its second reading on 19 January 2018. This is an important Bill which aims to review existing legislation in order to set a minimum level of standard for residential accommodation.
  • The Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 will soon come into effect. That means that from 1 April 2018, residential properties which are let (including any renewal) must have an Energy Performance Certificate rating of at least E. There will be some minimum exemptions.
  • The Land Registry intends to keep data on their top 500 customers, and share details about conveyancer’s mistakes.
 
 
The changes are coming. Be ready.
  2018 01 08 174
In our latest blog, Legal Studio reflect on lawyers, working conditions and chickens…

Is your lawyer happy?

There have been numerous reports popping up in the legal news recently regarding the unspoken issue of anxiety, depression and stress within the legal industry.

This is down to a number of factors, including:

•    The expectation of long working hours. Many lawyers feel that they have to stay in the office just to be seen by superiors, at the expense of their family or social life;

•    Additional responsibilities outside of the day job. There are always pressures and deadlines to be managed, but the additional management meetings, projects and constant need for existence justifying spreadsheets get in the way of meeting them without a last-minute panic;

•    Constant, ever-increasing, targets. These are often outside the individual’s control, but any failure to meet them is attributed to them; and

•    Lack of appreciation. Doing all of the above but receiving no thanks for any of it.


Free Range Lawyers: Good for Clients

Why should our clients care if we are happy? We are, after all, paid for the advice we give and documents we produce. Our happiness is of no concern to our clients…or is it?

Here at Legal Studio, a parallel has been made with battery hens. They both see little natural light, are often overworked and have had their freedom restricted. In short, just like the battery hens, many lawyers are unhappy.

There is a large backlash against battery hens in today’s food market, with consumers paying slightly more to know that their products have come from happy hens. This is where the parallels shift…by engaging a happy lawyer with more freedom, you are likely to pay less and the end quality of work is likely to be improved.

It is impossible to focus properly for hours on end, and everyone works better in different ways and at different times of day. When forced to sit at a desk from 7am until 7pm, a lawyer is not generating their best work and they are likely to be inefficient.

At Legal Studio, our lawyers all work freelance. Yes, we have an office. Yes, we are contactable between 9 – 5 Monday to Friday (and beyond). But no, we don’t sit at our desks trying to look busy or force our brains to complete a document when, in reality, we are struggling to focus any longer. There is a lot to be said for the ability to leave the desk to take a proper lunch, catch up with a contact, or go to the gym. Not only doesn’t it have a huge impact on our personal wellbeing, it also has a big impact on our ability to focus and reflect on our work.

Each of us has the ability to choose which cases we accept. It is not dictated to us. This means that the work we do is through choice, and our clients have a new level of importance to us. Of course, if we are busy we will work long hours, but this won’t be imposed upon us for no recognition.

So, the answer to the question of whether you should care if your lawyer is happy is yes. It will impact on your relationship with them, their work ethic, and their productivity. By being able to work efficiently, we are able to work cost-effectively.

Free-range lawyers – it’s a novel concept but it works on both sides. If you are interested in either joining us, or in finding out how we are able to assist you, please get in touch via our website.
  2018 53 08 164
As freelancers, it is essential that you understand your rights regarding Intellectual Property.  Ailsa Pemberton, provides a useful guide on the points you need to be aware of when commencing new projects.
 
For the purposes of this blog, I am focussing on the scenario where you are creating works for others. You may be: an artist commissioned to create a bespoke art work; a web designer creating a site for a customer; a photographer taking wedding photos; a journalist writing about an exclusive scoop; a computer programmer creating a new App for a client; and so on. In the majority of the scenarios above, you will be paid for your efforts and, with any luck, the happy client may recommend you, thereby leading to further work for you.
 
In the majority of the scenarios above, you will be paid for your efforts and, with any luck, the happy client may recommend you, thereby leading to further work for you.
 
RECOMMENDATIONS CAN LEAD TO MORE WORK.
 
As a specialist intellectual property (IP) lawyer, I advise clients how to maximise the value from their IP. For many of my clients this may take the form of advising on protecting their IP or drafting commercial agreements to get a return from that IP, e.g. by developing, using, licensing or selling, to name a few methods.
 
For freelancers, the value considerations need to start before the IP is created. Many freelancers undersell their works. Remember, the customer wants to tap into your expertise and is willing to pay for that expertise.
 
DON’T UNDERVALUE YOUR WORK, IT IS YOUR INCOME.
 
One of the most important factors is recognising the type of IP you are creating. Most of the examples above create copyright works, but you may also be creating a patentable invention, a protectable design or a registrable trade mark.
 
To focus on copyright: copyright arises automatically, without the need for registration in the UK, upon the creation of an original work. As creator, you are the first owner of that copyright work. Ownership of such work can only pass when you give your agreement in writing, even when being paid. So, if you are to transfer ownership as well as the work, make sure the price reflects that.
 
You might want to think about retaining some elements, licensing or transferring only part of the works, and retaining others. The retained parts can then be used by you in the future. You could grant rights for a limited time, or in a limited territory or for a limited use. Full ownership should always cost more.
 
KNOW YOUR RIGHTS. FULL OWNERSHIP SHOULD ALWAYS COST MORE.
 
Moral rights should always be considered. Unless you are producing white labelled goods for your customer, it is prudent to insist that your details are displayed on the works. This will show others who created the works and hopefully lead to more work for you.
 
EXERT YOUR MORAL RIGHTS.
 
Always keep full records, including dates, of the creation of your works. You need to be able to prove you are the owner should the work be stolen, for example if the customer doesn’t pay but uses your work anyway.
 
EVIDENCE THE CREATION.
 
Some of the tips above arise from deep seated legal principles which I would be more than happy to explain further. Others are simply common sense. At the end of the day, however, a little knowledge is a good thing and will hopefully make your business more successful.
 
If you would like any further advice on IP issues please contact Ailsa Pemberton.
  2018 51 08 161
 
If you get 12 or more penalty points on your driving licence within a 3-year period, you get banned from driving. 
 
DRIVING BAN
 
The length of your ban depends on the precise circumstances of your case, but you could be banned for:
  • no less than 6 months if you get 12 penalty points or more within 3 years
  • no less than 12 months if you get a 2nd disqualification within 3 years; or
  • no less than 2 years if you get a 3rd disqualification.
 
Also, if you’re disqualified for 56 days or more you must apply for a new licence and you may have to retake your test.
 
EXCEPTIONAL HARDSHIP 
 
However, you may be able to argue that either a ban, or the length of any proposed ban would cause you “exceptional hardship”. 
 
An exceptional hardship must be something out the ordinary. Losing your job or your freedom to travel is not of itself enough.
 
However, in a recent case, Edmund Conybeare was able to successfully make an exceptional hardship application for a client who had already exceeded the 12-point threshold and prevented a ban being put in place at all. 
 
Finally, it’s worth knowing that if you’ve already had an exceptional circumstances argument accepted in the last 3 years you can’t rely on any of the reasons raised then to retain your licence for a second time.
 
It therefore pays to consult an expert early on to ensure you get the right advice and run the right arguments. 
 
Get in touch with Edmund to discuss your options today.
  2018 47 08 56
Have you taken stock of how many invoices you have outstanding recently, and how old the invoices are?
 
Many businesses can have quite a shock at how much money they are owed in uncollected invoices but cannot commit the time to chasing them whilst meeting other business demands.
 
Credit Control systems can take time to put in place and monitor effectively, but without them, you may be allowing money owed to your business to simply disappear. Debt collectors are often ineffective as their letters are either ignored (as people realise that they rarely follow up with a court claim); or result in a breakdown of relationship with a client who may have provided further work.
 
If you feel that things are starting to spiral out of control in relation to your debt recovery procedures, why not speak to one of our experts at Legal Studio who will be happy to discuss any book debts with you and provide advice on credit control from a legal perspective going forward.
 
Please contact Aby Smith for further information at aby.smith@legalstudio.co.uk or 0113 357 3207.
  2018 27 08 162
Who owns your website?
 
Did you use IT design consultants to produce your website? You may have supplied all of the information or wording required, but the style, layout, imagery and often some of the content is created or supplied by the designer. 
 
So, who owns the intellectual property (IP) in the website? Is it you, the instructing – and most likely paying customer? Or is it the hard-working designer?
 
It may surprise you to learn that without a formal transfer of the IP, ownership remains with the designer.
 
IP law has, over the years, been developed to protect persons creating the work. So, in the eyes of the law, the first owner of the copyright in a commissioned website is the designer or their employer, if they are an employee. This remains the case even if the designer is paid for their services.
 
Most assume that on payment, ownership will automatically transfer. But this is not the case. The only way that ownership can move is if the designer transfers the copyright to the client in writing. This type of legal document is called an assignment. If ownership is not transferred the designer could, at some later date, object to certain uses of the work.
 
If you think you may have an issue, please contact Ailsa Pemberton at ailsa.pemberton@legalstudio.co.uk or 0113 357 3208.
  2018 25 08 161
 
New year, new home improvements?  If you are planning on carrying out any changes which may affect a shared wall, then take a look at our,
 
10 THINGS YOU NEED TO KNOW ABOUT THE PARTY WALL ACT: 
 
  1. The Party Wall etc. Act 1996 (“PWA”) provides that a neighbour must be notified of any work intended to be carried out which may affect the structural strength or support function of a party wall or may cause damage to the neighbouring side of the wall.
 
  1. A building owner must comply with the PWA where they intend to:
  • Carry out works to an existing party wall, including rebuilding a wall to a reduced height;
  • Build a new party wall;
  • Build within 3 or 6 metres of the adjoining owner’s walls or buildings where the works involve excavation.
 
  1. A party wall is one which stands astride the boundary of land belonging to two or more different owners. It may be part of one building or may separate two or more buildings. A wall is also a party wall if it stands wholly on one owner’s land but is used by two or more owners to separate their buildings.
 
  1. A party fence wall is one which separates land but is not part of a building, such as a garden wall. A wooden fence is not a party fence wall for the purposes of the PWA.
 
  1. The rights and obligations of the building owner vary according to the type of works which are being undertaken. Generally speaking, there is a requirement to serve notice on the adjoining owner, to carry out the works in accordance with the agreed plans, to exercise reasonable care when carrying out the works, to avoid causing unnecessary inconvenience to the adjoining owner during the works, to compensate the adjoining owner for any damage caused, and to pay for all expenses relating to the works.
 
  1. If the building owner fails to serve notice, the adjoining owner can seek an Injunction preventing the works being carried out or compensation. However, where the notice has been correctly served, it is an offence for the adjoining owner to refuse access to the land or obstruct the works. The building owner is permitted (with police assistance) to break any doors or fences which prevent their right of access.
 
  1. The obligations on the building owner must be complied with, otherwise they can be liable for breach of statutory duty, for which damages can be sought, and they will not benefit from the protection provided by the PWA. Where damage or loss is caused as a result of a failure to comply with the PWA, the adjoining land owner has a claim in private nuisance against the building owner, who may also be liable in trespass.
 
  1. The PWA does not affect any requirement to obtain planning permission or building regulation approval and likewise these do not negate the requirements of the PWA.
 
  1. The PWA provides a dispute resolution procedure which gives the building owner the rights needed to carry out the works, whilst at the same time protecting the interests of the adjoining owner.
 
  1. Where agreement cannot be reached, the parties can instruct a surveyor to draw up an Award. A Party Wall Award will govern the extent of the building owner’s works, set out the manner in which the works are to be carried out and document the original condition of the land in case damage is subsequently caused. The Award is final and binding and can only be overturned on appeal to the County Court. Any appeal does not automatically stay an Award, meaning that the building works can continue unless a stay or injunction are granted.
 2018 21 08 47

‘He which hath no stomach to this fight, let him depart; his passport shall be made, and crowns for convoy put into his purse.’ 

If you have come to me, most probably you are in trouble with the criminal law and want to be defended, hopefully found not guilty or given the lowest possible penalty. So what do you get from me? What is the ‘art of defence’?

Firstly, as the Shakespearian quote from Henry V indicates, you get a lawyer up for the fight. If I am less than fully committed to you and your defence I am not doing a proper job and am not worth the trust you place in me. I am a bad loser and will do all I ethically can to act in your best interests.

Secondly, you get a lawyer who will make the prosecution work. If they want to convict you of whatever you are accused of, they will have to work for it. They will have to prove every required element of the offence and they will have to show the prosecution is fair and in the public interest. And I won’t make it easy for them. In our free country, the burden is on the prosecution to prove you guilty, and I won’t let them forget. In the immortal words of John Mortimer’s famous comic creation Rumpole, the prosecution will not make a ‘balls of the burden of proof.’

Thirdly, I will live up to the maxim of leaving ‘no stone unturned’ in your defence. That means not just dealing with the obvious but actively taking measures to defend you, finding material that can assist you, questioning the prosecution case, striving to achieve the best result at all times, and finding unorthodox arguments to challenge the prosecution and improve your case.

And fourthly, I will always strive to be one step ahead of the prosecution. I will be better read than them, better prepared for hearings, will never leave their case unchallenged and will continually place the burden of response back on them.

Years ago I went for a job interview. The interviewing partner was married to a senior lawyer in the Crown Prosecution Service. She described me in defence terms as a ‘complete nuisance.’ It was a badge of honour I still proudly wear today.
  2018 03 05 56

The thing about modern working is that no one is sure where the boundaries are anymore.  There are generational differences within most workplaces meaning we grew up with different expectations of what ‘work’, and a workplace, actually looks like. 

More and more businesses are offering agile working as an option.  This means that employees can work from home, the coffee shop, or mum’s house, to complete their tasks.  This shows a level of trust between the employer and employee along with the expectation that this will secure a more loyal and productive worker. 

The question is, in whose interests does this work?  From the employee’s perspective, there’s no longer a need to join the daily commute; technology allows for instant access to any files/information they may need; and, with clear work expectations laid out, they can achieve what they need to, when they need to. From the employer’s perspective, there is less need for day to day management and if deadlines are met, this creates an easy symbiotic way of life.


However, while agile working is becoming a more excepted alternative for some it asks more questions than it answers.  Some people enjoy being in the office with clear expectations of coming to work, doing the job asked of them and then, hopefully, switching off from work once they leave.  Granted, some may work long hours in the office, and may take work home, but, overall, work is at work and life is at home.  With agile working, there is element of the unknown as people work differently and, by not being ‘supervised’, how do we know if one person is completing their task within hours while for others it takes days?  As an employee, it can become unnerving having to justify, or thinking you need to justify, inputs and outputs.

There is another option. Consultancy.  Again, this isn’t without risks.  For many, the thought of leaving secure employment with the monthly salary, holiday and other benefits, and a business infrastructure, can cause shivers.  For those contemplating this change there are other factors to consider such as, where you are in your lifecycle i.e. buying a house, starting a family, etc., but, more importantly, it depends where you are in your career.  To succeed as a consultant, it’s useful to have a client following, though, not essential if you can go out and win new clients.  If you’re not comfortable going out and making your name known, then choose the type of consultancy firm which provides business development support.

The clear difference between agile working and consultancy is that the line isn’t blurred.  The work that you do as a consultant is for you.  You are no longer accountable to a greater entity, only to yourself.  This prospect can appear daunting but working for an organisation like Legal Studio, Setfords or Gunnercooke can give you access to market along with a business infrastructure to begin working with clients immediately but doing it on your terms. Every consultancy firm has different agreements with their consultants and it is all about what works best for you.  The things to consider are: is there a joining fee? Are there targets? What is your percentage split? What support do you receive? The area of law you specialise in and what level you are at, will provide different answers to those questions but, again, it is about what works for you.

Ultimately, everyone needs to learn what type of worker they are?  Are you someone who works best in an office with secure employment rights; or, do you work best out of the office with clear expectations; or, are you the type of person who wants to choose how and when you work without boundaries?  Once you can answer that question it makes choosing the next step in your career that much easier.

 2017 12 25 58
 
Buying land with the benefit of planning permission can bring with it unexpected difficulties when the subsequent development is not carried out by the party who initially obtained the planning permission. Take a look at Lindsay Dixon’s advice to make sure the line is drawn correctly…

The case of Signature Realty Limited -v- Fortis Developments Limited highlighted the importance of obtaining an assignment of the copyright, or a licence to use, the Architect’s drawings that formed the basis of the planning permission to avoid infringing copyright in those drawings.

Signature Realty was a property developer which obtained planning permission for a block of flats based on drawings prepared by an Architect, but was then unable to secure finance to purchase the site and complete the project. The site was therefore sold to Fortis. Planning permission had been granted on the condition that the development was completed in accordance with the Architect’s drawings, which had been published on the local authority planning portal with a copyright notice. Signature Realty issued proceedings against Fortis for infringement of the copyright in the drawings.

The drawings had been used by Fortis for marketing the properties, tendering, producing AutoCAD versions and constructing the building. The Court held that there was sufficient intellectual skill in the drawings for copyright to exist and that Fortis had in fact infringed the copyright in the drawings.

The Court did not accept that Fortis had an implied licence from the Architect to use the drawings on the basis that they had paid a premium for the planning permission. Simply, Fortis had not engaged the Architect and it had not bought the land from the copyright owner.

The Court ordered an enquiry as to damages or an account of profits. The Court did not consider it appropriate to award additional damages under section 97(2) Copyright, Designs and Patents Act 1988 as there had not been a flagrant infringement and the benefit gained had not been as a direct result of the copyright infringement.

Ordinarily, in a situation such as this, the site owner will instruct the Architect to prepare design drawings before selling the site to a third party with an implied licence to use the drawings to complete the works required on the site to comply with the planning permission. In this case, however, the property developer who commissioned the drawings and obtained the planning permission was not the original land owner or the developer who built the building. Accordingly, they did not have any implied licence which they could transfer when they sold the land and therefore the copyright in the Architect’s drawings was infringed. 2017 25 25 162
Confidential information is that which is sensitive in nature and for which steps need to be taken in its protection. It often envelops material which cannot be protected under the registered or unregistered intellectual property rights of trade marks, designs, patents, copyrights, but still warrants a degree of protection.

However, merely deeming something confidential is not necessarily sufficient to render it so. There must be some degree of confidential quality and nature, and it must be treated as confidential. So not only in everyday actions, but also when being disclosed to a third party, where the method of disclosure must confer an obligation of confidence.  Take a look at Ailsa Pemberton’s thoughts on keeping things confidential. 

Trade Secrets

In some circles, it is considered that some information is more confidential than others; this information tends to be classed as “trade secrets”. However, not everyone buys into this classification and they simply believe that information is either confidential or not and cannot be graded. In practice we see high profile examples of trade secrets whose existence and the publicity surrounding them is as much about the branding as it is about secret technology. Coca-Cola’s “famous” secret ingredient has been the mainstay of its apparent uniqueness for over 120 years. KFC’s secret “blend of 11 herbs and spices” is a key element of its marketing message. The recipe for Irn Bru is a closely guarded secret.

Trade secrets are the most neglected form of intellectual property with no formal protection and no real definition. Despite appeals to provide for a more unified recognition and protection, at present trade secret disputes are dealt with via contract law or an action for breach of confidence. Contractual obligations can be imposed in a wide variety of circumstances: stand alone confidentiality agreements or non-disclosure agreements (NDAs); confidentiality clauses; terms of business; employment contracts; etc..

Protection

There are certain actions which can be taken to maintain a trade secret:

Confidentiality agreements/NDAs can be used where one or more parties will be disclosing confidential information for a defined purpose. That purpose will usually be a project that the parties are considering undertaking together. When negotiating with partners or potential partners, or when securing manufacturing or distribution agreements, there needs to be a formal agreement in place to oblige the third party to keep the information secret and only use it for the identified purpose. It is important to provide only what is required to support the purpose.

Confidentiality agreements/NDAs aim to ensure the following:
  • Preservation of confidentiality. Confidential information disclosed under the agreement remains confidential and kept secret.
  • Use for defined purpose only. The recipient of confidential information agrees that it will not use the information for any purpose that is not set out in the confidentiality agreement.
Contracts of employment can also be used to preserve trade secrets. Specific confidentiality clauses can be added and/or restrictive covenants to prevent certain key employees with access to special information from taking up equivalent posts with competitors. All such clauses must be reasonable and proportionate.

Documenting the trade secret can provide important evidence that something is a trade secret. Some countries actually require a trade secret to be documented before it can be categorised as a trade secret and action taken.

Security provisions and policies are a further sensible precaution. Limit access to a need-to-know basis. Optionally, ensure that the numbers of people who know the secret in its entirety are limited. Control distribution. Use encryption and computer passwords.

Be seen to take swift enforcement action against breaches and former employees. This will give the clear signal highlighting the importance your organisation places in trade secret information and may deter others from doing the same.

Issues

In an employment context, some information cannot be counted as confidential (such as information about the business or industry in which employees were or are employed), if it is also available to the public in general or on request, as well as information representing common business practice. Other information is seen as confidential during the course of employment but not once the employee has left. This included knowledge which an employee “carries in his head”. The third category is genuine trade secrets which remain confidential after the termination of an employment contract. But the actual division can be blurred and each case rests on its own facts. A simple clause in a contract cannot necessarily be relied upon. Confidential information in the possession of an employee should best be recorded and categorised as confidential or a trade secret if it is deemed valuable and the duty of confidence the employee has in relation to that information should be clarified.

Where confidentiality agreements/NDAs are used, the discloser should be aware that the agreement cannot provide an absolute guarantee that the disclosed information will be protected. A confidentiality agreement has limitations, particularly where the recipient has little intention of complying with its obligations under the agreement. If a recipient uses or discloses confidential information in breach of the confidentiality agreement, it may be too late, or at the very least, prohibitively expensive, for the discloser to seek a meaningful remedy:

An injunction (to stop any unauthorised disclosure or use of the information) is the first choice of remedy if the discloser discovers the recipient’s intentions before it breaches the confidentiality agreement. After the breach, an injunction may be of little or no use. Once the information has entered the public domain, there is no legal remedy that will make it secret again.

Damages for breach of contract (or a claim for an account of profits where the recipient has made use of the information) may not be an adequate remedy, especially where the confidential information has potential future value rather than value today.

Proving that there has been a breach of a confidentiality agreement can often be difficult.

Even where the recipient is honest and acting in good faith, it will inevitably be influenced by the disclosed confidential information, whatever the terms of the confidentiality agreement.
Given these limitations, a discloser should, in addition to entering into the agreement, put practical measures in place to protect the information. For example, disclosing only what is absolutely necessary, providing hard copies of information only, or limiting the number of individuals who may receive the information.

For any further information about trade secrets or confidentiality in general, please contact me on ailsa.pemberton@legalstudio.co.uk. 2017 28 25 57
Employment law is very much en-vogue.  You can hardly open a paper or watch the news without hearing about another gig-economy employment case, a Government review into employment status, the Supreme Court considering the legality of tribunal fees or changes to national insurance for the self-employed.

Employment law is constantly changing. There is probably more focus on employment status at present than at any time in the recent past. 

The definition of an employee will differ depending upon whom you ask.  In health and safety case, an employee will be entitled to greater protection (and so the definition is very wide).  The definition is probably narrower in employment law terms and more narrow still when determining how an individual is taxed.

When determining employment law rights – the definition of employee is of significant importance. Employees are entitled to far greater protection than the self-employed (or “workers”).  Employees alone have the right to claim unfair dismissal, redundancy pay and maternity and other family leave and pay. 

Employees also benefit from the protections afforded to “workers” (a hybrid EU concept wider than employee but not self-employer).  Workers (and employees – as all employees are workers) have the right to the national minimum wage, holiday pay, whistleblowing and discrimination rights.   The self-employed do not benefit from these protections. 

By contrast those who are self-employed have tended to benefit from a more favourable tax and national insurance regime. 

Recent employment tribunals have considered the status of individuals providing services to the public through Uber (drivers) and Deliveroo (couriers).  Both emphatically concluded that those providing the services were workers (they were not determining employment status) rather than genuinely self-employed as the businesses had purported (and their detailed and clever contracts claimed).

This meant that Uber drivers and Deliveroo couriers were entitled to the minimum wage whilst working, paid holidays and had the right to bring discrimination claims. 

The legal test to determine employment status is a multi- factorial test that considers various factors including control, personal service, the level of integration, the level of risk, mutuality of obligation and the level of control or autonomy.  However, in reality the tribunals have a tendency to utilise the duck test (i.e. if it looks like and it quacks like….)

The Government is reviewing self-employment and is proposing to report in the Autumn (in time for increased national insurance contributions from the self-employed, probably in exchange for increased rights). 

However, what we are seeing is that the old tests are not necessarily appropriate for today’s more flexible, variable workforce.  The test of who was employed (the old “master and servant” tests) no longer necessarily fit today’s agile, autonomous workforce. 2017 28 24 56
 
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