Having raised almost £20,000 for Will Aid since 1998, MacDonald Oates LLP raised a total of £2,970 in 2012 while preparing Wills in both the Petersfield and Midhurst Offices in exchange for client donations.

The Wills, Trusts and Probate team provide clients with a tailored and dedicated service and this year’s campaign allowed our valued clients to make vital provision for those closest to them having received personalised advice from the team at MacDonald Oates LLP. The team includes members of nationally recognised STEP (The Society of Trusts and Estate Practitioners) and SFE (Solicitors for the Elderly), ensuring that the highest level of legal service and up to date advice are available.

Many new clients visited the offices of MacDonald Oates LLP to take part in the scheme and the staff were pleased to be able to share the firm’s culture of professionalism coupled with social responsibility when supporting the Will Aid campaign once more.

We have a number of specialists who can assist clients in the preparation of Wills, Powers of Attorney, Elderly Client and Probate work and if you wish to know more about our services please refer to the Wills, Trusts and Probate team or call 01730 268211 (Petersfield) or 01730 816711 (Midhurst) to speak to one of our team.

For a fixed cost each month your business will be able to contact the solicitors in our Employment Department to assist with employment law advice and HR queries. Employment Law is constantly evolving and so keeping on top of your rights and responsibilities as an employer can seem like an impossible task. With the Employment Law Retainer our specialist employment solicitors can help remove this burden.

Kevin Smith, Partner and Head of the firm’s Company Commercial department, says  “We aim to tailor our services for our commercial clients and foresee that this new service will prove a popular option as the client need not worry about the time incurred. Further, for many of our small to medium-sized clients who do not have specific HR personnel, it will help save them time and worry when queries arise”

For further details on our Employment Law Retainer, please click here or please contact Linda Wilson on 01730 268211 and she would be happy to have a chat about how the Employment Law Retainer could work for your business.

The Maternity and Parental Leave etc Regulations 1999 (SI 1999/3312) give employees the right to unpaid Parental Leave. It is aimed at allowing employees leave from work for the purpose of caring for a child.

The right to Parental Leave only applies to employees who have been continuously employed for one year and who have, or expect to have, responsibility for a child. The 18 weeks leave is in respect of each child.

The leave can be taken up until the child’s 5^th birthday, or up until the child’s 18^th birthday if the child is entitled to disability allowance. Similar provisions apply for adopted children.

Employers need to be aware this right exists in case employee’s request to take leave, as employees can take a claim to the Employment Tribunal if the employer prevents or unreasonable postpones the leave. An employee is also protected from being subjected to detrimental treatment due to, for example, having requested parental leave. If an employee is dismissed because they took the leave, this would be an automatic unfair dismissal.

Employers can set out their own Parental Leave scheme provided it complies with the minimum requirements set out under the default scheme under the Regulations. In the default scheme, for example, an employee may take up to four weeks Parental Leave in each year and must take it in blocks of one week.

Employers should note that there are a variety of rights to time off and leave that employees, and some workers, could be entitled to. Those that are unpaid, like Parental Leave, are less popular for employees so it is unlikely that this increase will cause a problem for most employers.

Watch this space!: Look out for forthcoming changes which aim to share statutory maternity leave and pay with the father allowing parents to choose who stays at home to look after the baby. It is called ‘share parental leave’ and the Government is currently consulting on how this should work ( see  https://www.gov.uk/government/consultations/consultation-on-the-administration-of-shared-parental-leave-and-pay ). It is planned to be introduced in 2015.

Canine Partners is a national charity that trains assistance dogs to transform the lives of people with disabilities, including members of HM Armed Forces.  The dogs help with everyday tasks such as unloading washing machines, opening and closing doors, undressing, shopping, retrieving dropped items and fetching help in an emergency.

We have all sorts of plans in the pipeline for fundraising…details to follow.

Julie James, Corporate Manager of Canine Partners said:

“Canine Partners is very grateful to MacDonald Oates Solicitors for choosing to support us as their local Charity”

www.caninepartners.org.uk

The Seminar will primarily be aimed at private landlords and managing agents, although it will be of interest to anyone involved in the letting of residential property.

We are very pleased that Mr Philip Glen of 12 College Place Chambers, who also sits as a Deputy District Judge, has kindly agreed to speak at this Seminar.  As a Barrister, Mr Glen has vast experience in this specialist area and his knowledge and expertise will no doubt provide some very useful pointers for attendees.

When:  7 February 2013 at 4.30 pm until 6:00pm

Where: The Rose Room, Festival Hall, Petersfield  GU31 4EA

At MacDonald Oates LLP we aim to provide a tailored service to all our Landlord and Tenant clients and if you would like to attend please register on the Seminars form.

In this case the Court had to consider whether a non-solicitation clause that prevented an employee from soliciting any individual or organisation who had been a customer of the company during his employment for a period of 6 months, was enforceable.

Mr Coppage was employed as the Business Development Director of Safetynet, which was a small business providing security services.  He resigned and almost immediately after set up a new company.  It transpired that approximately 5% of Safetynet’s clients transferred their work to this new company.  Safetynet brought a claim against Mr Coppage for breach of his non-solicitation obligations and Mr Coppage defended the claim on the basis that, amongst other things, the non-solicitation clause was unreasonable and therefore unenforceable.

In determining whether a non-solicitation clause is reasonable, the Court set out the following guiding principles:

1. The Court should consider the construction of the clause for its pure meaning.
2. The Court should consider the object of the restraint, for instance the protection of the employer’s client base and goodwill.
3. Finally, the Court must construe the clause in context and have regard to the factual matrix at the date on which the contract was made.

In this case, due to some key facts such as Mr Coppage’s seniority within Safetynet, the Court enforced the covenant against Mr Coppage, a decision which, in many ways, fly’s in the face of the default position that non-solicitation clauses without limitations will be unenforceable.  This is a decision that is likely to be welcomed by businesses as it offers some comfort that the law will, in certain circumstances, enforce non-solicitation covenants against former employees.

However, whilst this decision was positive for Safetynet, it is important to remember that each case of this nature turns on its own facts and so there is no “one-size-fits-all” rule for employers to follow when drafting employee’s covenants.  Whilst it is likely to be unreasonable to impose restrictions on soliciting all clients on junior employees it may, in some cases, be reasonable to do so if that employee is particularly senior or, as can often be the case with sales/marketing staff, they are seen as the “face of the business”.  In those circumstances, such restrictions may be reasonable to protect the “legitimate business interests” of the business.

Employers should regularly review restrictive covenants to see if they need to be updated so that they properly reflect an employee’s role in the business.

On Mr Smith’s Facebook account he stated that he was a manager of Trafford Housing Trust. 45 of his Facebook friends were work colleagues. Mr Smith posted a BBC news articles entitled “Gay church ‘marriages’ set to get the go-ahead” with his own comment, “an equality too far”. One of Mr Smith’s colleagues then questioned him about this and he posted a response explaining his views.

The Trust’s policies did not allow employees to bring the Trust into disrepute or promote religious beliefs and so the Trust found him guilty of gross misconduct, demoted him from his managerial position and reduced his pay. Mr Smith appealed but was unsuccessful and worked in his new role under protest. He brought a claim for breach of contract.

The court held that Mr Smith’s Facebook post did not amount to misconduct and that the Trust had acted in breach of contract by demoting him.

Mr Smith’s Facebook posts were held not to be capable of bringing the Trust into disrepute as no reasonable person would think he was expressing views on behalf of the Trust. His posts about gay marriage were alongside posts regarding food and cars etc. Also Mr Smith expressed his views in a moderate way and outside of working hours.

The court also held that the obligation not to promote religious beliefs did not extend to Mr Smith’s Facebook postings.

Therefore the Trust was breaching contract by demoting Mr Smith, as they only had power to do so if he had committed gross misconduct.

As Mr Smith protested his demotion at every stage, he had not waived his right to damages by continuing to work for the Trust. However, his damages were limited to his notice period as he had only brought a claim for breach of contract, not unfair dismissal where his damages could have been higher.

This case supports employee’s privacy rights. The court viewed Facebook as a place for socialising, unless there is evidence to suggest otherwise. Employers should carefully consider whether behaviour actually constitutes misconduct before taking disciplinary action.

• Constructive unfair dismissal
• Annual leave whilst on sick leave

When: 18 December 2012, 8.30 am until 10.00 am

Where: Old Thorns Manor Hotel Golf & Country Estate, Longmoor Road, Griggs Green, Liphook, GU30 7PE

We aim to keep you abreast of the changes with our Employment Seminars, and provide you with practical guidance you can then use in your business.

If you are interested in attending, please contact Karen Ellis on Karen.ellis@macdonaldoates.co.uk

We look forward to seeing you there.

Mr Redfearn was employed by Serco as a driver. He provided transport services to Bradford City Council by transporting children and adults with mental and physical disabilities. The majority of his clients were of Asian origin. Mr Redfearn was revealed in local press to be a member of the BNP and although there were no complaints about the standard of his work concerns were raised about his political beliefs bearing mind the ethnicity of his clients. The Council therefore dismissed him on grounds of health and safety and protecting the reputation of the Council.

As Mr Redfearn had less than one year’s service, he was unable to claim unfair dismissal and so he claimed racial discrimination in his tribunal application. The Employment Tribunal system proved fruitless for Mr Redfearn and so he turned to the ECHR.

At the ECHR, it was held there had been a violation of his rights under Article 11 (right to freedom of assembly and association).

The ECHR stated that UK authorities are obliged to protect employees against dismissal solely on the grounds of their membership to a political party but that sometimes an employer may have to lawfully restrict one employee’s freedom of association in order to protect the rights of others.

The court considered whether Serco had struck a balance between Mr Redfearn’s Article 11 right and the risk his continued employment posed for fellow employees and those who used the transport. As Mr Redfearn did not have the recourse of unfair dismissal open to him (as he did not have the requisite one year’s service) the European Court of Human Rights held that the UK was breaching Article 11 as the UK does not protect those with less than one year’s service who are dismissed for being members of particular political parties.

The ECHR’s view is not that dismissal on the grounds of political belief should be automatically unfair, but that the Mr Redfearn should be able to challenge his dismissal at tribunal.

This case may lead to the law being changed to allow those dismissed for their political membership to bring a claim for unfair dismissal. This case means that tribunals may view ‘political views’ as falling under the umbrella of ‘philosophical beliefs’ which are already protected under the Equality Act 2010.

Ms Quashie worked for the Stringfellows as a lap dancer from June 2007. Ms Quashie signed a form that provided for a minimum fee to be paid to her by Stringfellows in respect of each dance. She did not, however, receive the agreement which stated the dancers were self-employed.

Ms Quashie worked two Saturdays and Mondays a month at the Stringfellows club, and was required to attend meetings every Thursday at which the rota was set. On the nights she danced she was paid in ‘heavenly money’, which was a voucher paid to her by customers and then exchanged by the club, minus deductions, for cash.

Ms Quashie was dismissed due to allegations of drug dealing in December 2008. Following her dismissal, she needed 1 years’ service to bring a claim for unfair dismissal and Stringfellows argued she was not an employee. At the Tribunal, the judge decided Ms Quashie was not an employee as there was no obligation for Stringfellows to provide her with paid work. Therefore, the Tribunal had no jurisdiction to hear the claim.

Ms Quashie appealed and succeeded. The EAT found the judge had not correctly applied the test of mutuality of obligation: is there an obligation for the claimant to work and for the respondent to pay for that work? The EAT found there was.

Although her earnings came entirely from customers who paid her in vouchers that were changed into sterling, she was paid for work done. Employment status is not decided alone on the source of the payment. The ‘wage for work’ test would have been satisfied if Ms Quashie had agreed to dance in exchange for accommodation, free meals, fees paid directly to her university or even for payment of 1p a night. Furthermore, mutual obligations subsisted between the parties during any short gaps (ranging from two to six weeks) when Ms Quashie was not working. Therefore, she was employed under an umbrella contract of employment. Ms Quashie was able to bring her claim for unfair dismissal and this was sent back to the Tribunal to determine.