Tattoo’ll do nicely! Or will it?

Research published this week by the conciliation service, Acas, suggests that some UK employers’ attitudes towards people with tattoos are becoming outdated – and those employers are missing out on talent. In recent years tattoos have broken into the mainstream and become much more common.  A 2015 YouGov poll suggested that young people in the UK are far more likely to have them.  However, this cultural change presents a dilemma for those employers who want the best staff but who are in the habit of refusing to hire staff simply because they have tattoos.

Having a tattoo is not a ‘protected characteristic’ under the Equality Act 2010.  This means that, in contrast to a person’s sex, sexual orientation, race, age, gender, disability or religious belief, an employer can ‘discriminate’ against an employee or job applicant who has tattoos.  The Equality Act 2010 (Disability) Regulations 2010 even go so far as to exclude tattoos from the definition of ‘severe disfigurements’ which might otherwise amount to a disability.

Broadly speaking, employers have the right to set dress codes reflecting how they want their staff to dress or appear.  The code will vary with the type of organisation and the sector the employer operates in.  Many businesses in the service or professional sectors will not want client-facing staff to have visible tattoos.  They may feel that tattoos conflict with their corporate image.  So, as harsh as it sounds, employers are perfectly within their rights to refuse to offer employment to someone with a tattoo.  Employers can even dismiss an employee because they have become visibly tattooed – provided a fair dismissal procedure is followed.

It is ultimately a decision for an employer whether visible tattoos should be viewed as affecting an employee’s ability to do the job for which they are being, or were, hired.  Whilst an employer may be reluctant to hire someone with visible tattoos to work in a client-facing role, there may be less concern if that employee will have no contact with the public.  Many organisations are content to specify that tattoos must not be visible on the hands, neck or face, but take the view that tattoos considered offensive are unacceptable, whether visible or not.

However, employers still need to be careful about enforcing a blanket ‘no tattoo’ policy.  An employee may have visible tattoos for religious reasons – and so be protected from discrimination if they can demonstrate that the tattoo is connected with the expression of their religious belief.

In fact, accompanying the change in social attitudes toward the acceptability of tattoos identified by Acas, we are starting to see a trend in which tattoos are becoming something of an asset to a job seeker.  New industries, such as the digital sector, thrive on creativity.  Not conforming to traditional workplace norms may be viewed as a positive.  As the millennial generation seeks work/life balance and flexibility over pay and benefits, perhaps we are witnessing the dawn of a new age in which employers in some sectors will ask staff proudly to display their tattoos – as a badge of their individuality and creativity – instead of asking them to cover them up.

It is unlikely that tattoos will fall within the remit of the Equality Act any time soon (if ever).  But this new research does shine a light on changing attitudes in the British workplace.  If nothing else, the survey should serve as a warning to employers not to squander talent by writing-off job applicants simply because they have tattoos.  That said, a job-seeker would still be well-advised to think carefully before getting a tattoo – especially a visible tattoo. Just because tattoos are becoming more widely acceptable does not mean that acceptability is becoming universal.  A prudent job-seeker may wish to reflect on the unintended consequences a tattoo may have on their career prospects, especially in later life.

Paul Kelly

Paul Kelly

Paul Kelly
Employment Team
0113 227 9249

Posted in Employment Law | Leave a comment

Don’t Burn Your Cakes

Have you managed by some miracle to avoid the furore which surrounds the Bake Off, or The Great British Bake Off as it is properly entitled? News of its sale to Channel 4 has reached unprecedented levels of media coverage this week. An eye watering £75m was paid for a three-year deal for the show. But what have they actually purchased? Two of the stars of the show have already said that, out of loyalty to the BBC, they will not be moving with the show. It still remains to be seen whether the celebrity judges, Paul Hollywood and Mary Berry, will stay on or not. If not, what is left: a tent; several food processors? Rumour has it that even these are hired. So, what have Channel 4 really paid for?

Well, the root of the value is intellectual property. The format of the show, owned by the production company Love Productions, is the valuable asset. Who would have thought that watching strangers succeed or fail in various baking skills and battling for that ultimate title could become so popular.  But like many television game shows, reality shows and sitcoms, a successful TV format can be protected, licensed and sold like many other creations.

TV formats are a rather odd mix of copyright, trade marks and reputation in the overall set-up or presentation. As a result many instances are seen where copycat formats are created, seeking to duplicate the success of an original format without paying for the privilege of using it. As with all intellectual property rights, the only way to stop these imitations, is to threaten and often take legal action.

Successful TV formats may often seem like simple and almost obvious ideas. But the simpler a format appears, the likelihood is that it is the end result of a very complex process. Many successful formats will have begun with an idea as clear as mud. The skill in producing the final format is not necessarily what is being aired, but how it is aired. This is where we can start to see that the Bake Off may be a simple idea on the surface but much effort has gone into devising exactly how it will work. The presenters may or may not move to Channel 4, but the show has been successful and there are likely to be many individuals waiting in the wings to get a slice, excuse the pun, of the action. There are also potential spin off shows and merchandise which Channel 4 will be able to exploit, which for advertising reasons the BBC has not been able, as well as well positioned advertising revenue.

So, if you have a great idea for a TV show, you may be sitting on an egg worth hatching (or adding to a cake), don’t give it away for someone else to reap the profits. The best way to protect an idea in its infancy is secrecy, but when communicating the idea is necessary makes sure you protect yourself and the concept with confidentiality agreements (also known as non-disclosure agreements, NDAs) and ensure proper legal advice is sought to negotiate any possible contracts.

Ailsa Pemberton

Ailsa Pemberton

Ailsa Pemberton
Intellectual Property Team
0113 227 9260

Posted in Intellectual Property | Leave a comment

Squatters Rights – The Principle, Process and Practical Application of Adverse Possession

The Principle 

Adverse possession is a principle of property law that applies to both residential and commercial property. It is the legal basis on which ‘squatters rights’ can be claimed for land that is occupied by somebody who is not the legal owner of the same.

In order to claim adverse possession of the land in question (the “Land”), the ‘squatter’ needs to be able to demonstrate the following:

  1. Factual possession of the Land, to the exclusion of all others.
  1. An intention to possess the Land (not simply an intention to own).
  1. Possession of the Land without the owner’s consent.

Note that the remainder of this blog relates only to the principal of adverse possession as it applies to registered land.

The Process 

If the above three circumstances have existed for at least ten years, the squatter can make an application to the Land Registry for adverse possession of the Land. The Land Registry will serve notice of the application on the registered proprietor of the Land and, if no objection is made, the squatter will be become the new registered proprietor.

If the current registered proprietor of the Land does object to the squatter’s application for adverse possession, then the application will be rejected unless one of the following three exceptions apply:

  1. It would be unconscionable not to register the squatter as the registered proprietor of the Land.
  1. The squatter is entitled to be registered as the registered proprietor of the Land for some other reason.
  1. The Land abuts the squatter’s own property and the exact demarcation of the boundary between the two plots of land is unclear. The Land must also have been registered at the Land Registry for more than one year.

If the squatter’s application is rejected by the Land Registry but the squatter remains in adverse possession for a further two years, then s/he can make a further application to the Land Registry and presuming the application and the facts surrounding the same are in order, the squatter will be become the new registered proprietor of the Land.

Practical Application 

If when purchasing a property there is a question about ownership and the principle of adverse possession may come into play, it is important to bear the following in mind:

  1. Ask your solicitor to do an index map search of the Land so as to confirm the identity of the registered proprietor.
  1. Refer the issue to both your agent and (if applicable) your lender’s valuer and ask them to consider whether the issue of adverse possession affects the value of the property.
  1. If the seller has been a squatter for at least ten years ask him/her to make an application to the Land Registry for adverse possession. This may delay your purchase a little, but it will always be tidier if the seller is the registered proprietor of all of the property that you are purchasing.
  1. If the seller has been a squatter for either less than ten years or for ten years but their application to the Land Registry is rejected, ask them to provide you with a sworn statutory declaration detailing the full circumstance of the adverse possession. The statutory declaration should refer to a plan and, where possible, photographs of the Land. The statutory declaration can then be used by you to support any future application for adverse possession of the Land.
  1. If the seller does not make an application for adverse possession, consider taking out insurance against the risk of the registered proprietor reclaiming possession of the Land. It is important to remember that if any approach is made to the seller or the Land Registry with regards the adverse possession then the insurance policy will become void.
Beth Laidler

Beth Laidler

Beth Laidler
Commercial Property Team
0113 227 9209

Posted in Property Law | Leave a comment

Defender of Parents’ rights or Enemy of the State?

As any parent will know, booking a holiday outside term time can be an expensive business, whether or not you plan to travel abroad.  A recent judgment has put the issue in the spotlight once again.

In what could be a landmark case with wide-ranging impact, the High Court has upheld an earlier decision that Jon Platt, the Isle of Wight father who took his child on holiday during school term, had no case to answer against the Isle of Wight Council (“the Council”) for unpaid school absence fines.

In April 2015, Mr Platt was issued with a £60 fine for taking his six year old daughter out of school for six days to go on holiday. The school’s Head Teacher refused to grant authorised absence and, instead of paying the compulsory fine of £60 (rising to £120 on non-payment), Mr Platt chose to fight the case in Court.

Mr Platt was prosecuted under Section 444(1) of the Education Act 1996 (“the Act”), which states that a parent is guilty of an offence if their child does not attend school ‘regularly’.

He successfully defended the case by arguing that the Council had failed to show that his daughter had not attended school regularly. Even with the holiday and other absences, Mr Platt maintained that her attendance remained above the 90% threshold for continual truancy.  The decision was appealed by the Council.

At the heart of the case was a lack of clarity in the Act.   The word ‘regularly’ is not defined, and there is no guidance as to how it should be interpreted. Parents and schools are left to work it out for themselves.

The Court upheld the original decision and ruled that Mr Platt’s legal costs (which he had covered through a crowdfunding campaign – see our earlier blog on the subject here) had to be paid by the Council.

Mr Platt has been hailed as a hero by some, with one travel company stating that term time holiday bookings are up by 88% due to the ‘Platt effect.’  It is likely that schools might view things differently.

The Department for Education (“DfE”) says that children’s attendance at school is “non-negotiable” – children who miss seven days’ school in a year, they say, see their prospects of gaining five good GCSEs fall markedly and if children are regularly missing school teachers have their time diverted from teaching to making sure that a child is able to catch up with the rest of their class.  The DfE says it will now be looking to change the legislation.

The fact that Mr Platt had two other children at a different school with different holiday dates may well mean that he was faced with an unavoidable choice of having to take at least one of them out of school if they were all to spend time together abroad and this does show that these issues are not always as black and white as they seem.  It will be interesting to see what impact this ruling has in the future and, assuming the DfE does what it says it will, just how the legislation is changed.

Phil Gorski

Phil Gorski

Phil Gorski
Commercial Dispute Resolution
0113 227 9318

Posted in Commercial Dispute Resolution | Leave a comment

Bristol Rovers 0 – Sainsbury’s Supermarkets 1

The phrases “to use all reasonable endeavours” and “to act in good faith” are legal terms that can often be found in contracts.  But what do they actually mean?  This was a question which the Court of Appeal had to consider in the case of Bristol Rovers v Sainsbury’s Supermarkets.

Sainsbury’s had agreed to buy Bristol Rovers’ Football Club’s ground, the Memorial Stadium, and to lease it back to the Club while a new stadium was being built.  Sainsbury’s would eventually demolish the stadium and build in its place a mixture of residential units and a supermarket.

However, the agreement was conditional upon Sainsbury’s obtaining planning permission which, amongst other things, permitted it 24 hour access for deliveries.  It was contractually obliged to act in good faith and to use reasonable endeavours to obtain the planning permission.

The planning permission granted to Sainsbury’s restricted the hours upon which it was allowed to deliver to the proposed store.  Following a failed appeal, Sainsbury’s asserted that it was entitled to terminate the agreement.  Bristol Rovers argued that Sainsbury’s could not do so as it had failed to use “reasonable endeavours” to obtain planning permission since it had not exhausted the local council’s appeals procedure.

At first instance the High Court Judge found that Sainsbury’s was entitled to terminate the agreement.  Bristol Rovers therefore appealed.

One of the issues which the Court of Appeal had to decide was whether the refusal by Sainsbury’s to allow Bristol Rovers to launch a further planning appeal in its own name was in breach of the agreement and, in particular, its obligation to use all reasonable endeavours to procure an acceptable planning permission and to act in good faith under the agreement.  The Court found that it did not; the parties’ obligations to act in good faith did not require Sainsbury’s to consent to Bristol Rover’s pursuing its own planning appeal.  As the application for planning permission only applied to Sainsbury’s, its lack of consent to allow Bristol Rovers to apply did not amount to a failure to act in good faith.  The Court was of the view that, given that Sainsbury’s itself was not obliged to make a further planning appeal it could not have been the intention of the parties that Sainsbury’s should be obliged to consent to such an appeal by Bristol Rovers.

This case illustrates how detailed drafting in a contract can reduce uncertainty about the scope of endeavours and good faith obligations.  If the parties intend for certain steps to be taken then these should be expressly set out in the contract.  Relying on general endeavour obligations or good faith obligations may not achieve what the parties actually wanted in the first place.

Picture of Luke Patel

Luke Patel

Luke Patel
Commercial Dispute Resolution Team
0113 227 9316

Posted in Commercial Dispute Resolution | Leave a comment

Is now the time for the Aviva Premiership to be ‘ring-fenced’ – Part II?

Richmond RFC will make a welcome return to the Championship following their catastrophic demise in 1999 when millionaire backer Ashley Levett pulled his cash and the club went into administration and was sent crashing to the ninth tier of English rugby.

Richmond RFC has come out publicly to state that next season no ‘professional players’ will represent the club. The stance taken by Richmond RFC will ensure they attract some very talented players who will retain their off field pursuits with many of the squad working in the ‘City’ Monday to Friday.

Whilst many pundits will have Richmond RFC nailed on for relegation before the season begins, they might be a more attractive club to a young Championship prospect than some of the “full-time” clubs.

Some of the “full-time” Championship clubs are under the microscope following the recent articles penned by Championship players’ Ben Hooper and Jordan Davies. Hooper and Davies have highlighted that some players are being offered as little as £6k per annum to become full-time professional rugby players which falls far below any realistic salary these players should expect to be paid for the risks they are putting their bodies under.

With the lion’s share of the central funding being divided among the Premiership teams (and not in equal measures as was discussed in the first instalment of this blog series) the Championship has a real conundrum in maintaining 12 “full time” professional outfits. Presently Championship clubs receive £530,000 in central funding per year under a deal that is due to remain in place until 2020.

The RFU have been quoted as being “fully committed to the development of a professional English second-tier competition”, but the accounts of Hooper and Davies would contradict the RFU’s best intentions.

Would the RFU be better served considering a ‘ring-fenced’ 14-team Premiership under a franchise structure as a possible solution and accept that the Championship should support players having a ‘real job’ alongside training two nights a week and a game on the weekend?

In a crude evaluation of how the Championship stands next season, geography could dictate where two further Premiership franchises should come from. Yorkshire is served by Yorkshire Carnegie, Doncaster Knights and Rotherham Titans, all striving to be Premiership outfits in their own right. If tribal differences could be set aside and their resources pooled, the county would not see the player drain of its home grown talents such as Care, Burrell and Hill who are currently in the England squad.

Cornish Pirates have fallen away in recent seasons but seeing the rise of Devon neighbours Exeter Chiefs shows how the South West is a hot bed of rugby with little football to shout about and Cornwall would be well deserving of a franchise. London Irish could argue that they have the finances and resources to warrant a place in the 14, but with London already represented by Harlequins and Saracens under the geographical franchise ideology, the area is already well represented.

14 fully professional premiership teams ‘ring-fenced’ without fear of relegation arguably would improve the opportunities for young home-grown players to thrive as coaches would have no fear of blooding them. For those players who were aspiring to be picked up by a Premiership franchise then as the old adage goes ‘cream rises to the top‘.  The best Championship players would still get picked up but at the same time they would have a traditional career to fall back on. These young hopefuls would not be chasing a dream for a belittling £6k for 11 months of the year only to see their “fully professional” contracts torn up as their club enforced a cumulative 12 week capability clause for three separate injuries, which was the case with Jordan Davies.

Andy Boyde

Andy Boyde

Andy Boyde
Sports Law
0113 227 9319

Posted in Sports Law | Leave a comment

Taxation of settlement payments

There are a number of dates you might want to save for April 2018: the Commonwealth Games in Australia, the Rugby World Cup Sevens in San Francisco or the Grand National at Aintree. What you perhaps didn’t know is that in April 2018, draft legislation concerning changes to the taxation of termination payments is intended to come into force.

Though certainly not as exciting as a day at the Races, there are 3 key changes being made to the taxation of termination payments of which you should be aware.

The main changes will:

  • make all payments in lieu of notice (PILONs) taxable, even if they are non-contractual;
  • require payment of employer National Insurance contributions (NICs) on sums over £30,000 (NICs are not currently payable); and
  • ensure payments for injury to feelings are subject to tax (there is currently a conflict of jurisdiction on this matter).

Why are changes being made?

The Government claims it has several objectives for the tax and NICs rules which can be achieved by making these legislative changes. These objectives are to:

  • continue to support individuals when they lose their job;
  • clarify the scope of the exemption for termination payments;
  • align the rules for income tax and employer NICs so that employer NICs will be payable on payments above £30,000 (currently subject to income tax only);
  • remove foreign service relief; and
  • clarify that the exemption for injury does not apply in cases of injured feelings.

The Government believes that by making these changes the £30,000 income tax exemption can be retained and employees will continue to benefit from an unlimited employee NICs exemption – thereby continuing the support given to those who lose their jobs. The Government’s declared aim is to remove the uncertainty around different payment types, and so ensure that the £30,000 exemption can only be used for payments that are genuinely the result of an individual losing his or her job.

What are the likely consequences of these changes?

  • Employees are likely to demand larger termination packages to compensate for the extra tax payable. As the typical employee who will be affected by this change will be a higher rate tax payer, this points to a £12,000 hike in such an employee’s expectations;
  • Employers may attempt to attach a redundancy label to a dismissal when, in fact, dismissal is occurring for a different reason. This could lead to an increase in the number of Employment Tribunal claims;
  • More claims may progress to an Employment Tribunal hearing where an employee can potentially recoup the lost tax-related advantage by receiving a non-taxable Tribunal award. This would in turn limit the prospect of achieving an agreed settlement, thereby costing businesses more time and money.

The precise wording of the draft legislation is open for consultation until 5th October 2016.

David Ward

David Ward

David Ward
Employment team
0113 227 9262

Posted in Employment Law | Leave a comment