Author: Chris Cook

In an article on the BBC this week, it has been found by a team of Manchester University researchers, as part of an Occupational Medicine survey, that only one in 20 doctors is following Government guidance on how long patients should be signed off work.

The research focused on 113 GPs operating in one health trust in England and reviewed practices when dealing with hernia repairs, hysterectomies and heart attacks.  In spite of national guidance, it was found that there is a huge variation as to the length of time that employees are signed off for similar conditions.  Most doctors surveyed had not received training in respect of sickness certification and a third of the doctors were unaware of the Government guidance on recommended sick leave periods, which are set out on the Department of Work and Pensions website. 

The study leader, Dr Richard Roope, commented that “We need to get across to GPs and patients alike that ‘being signed off’ may actually be bad for the health of the patient, their employer and the country as a whole”.

In light of the recent swine flu epidemic, it is particularly important for employers to be able to rely upon the guidance provided by their employees’ doctors so as to ensure an adequate workforce over the festive period.  This recent survey suggests a clear lack of training on how long employees need to recuperate before returning to work, leading to a large number of inconsistencies in the recommendations given by doctors.  Employers are advised to consider using the services of occupational health or alternatively external consultants if they have any doubts as to the views of employees’ doctors on the issue of when any such employee will be able to return to work.

New “fit note” scheme

As some of you will be aware, the Government is proposing to replace sick notes with “fit notes”, which will involve doctors needing to set out what an employee is able to do.  It remains to be seen whether the introduction of the proposed new “fit note” scheme will focus doctors’ minds on giving employers more accurate guidance on return to work dates, and perhaps more importantly give recommendations on what can be done to facilitate an earlier rehabilitation to work.

Author: Gary Dunger

I’m sure you have all been eagerly anticipating the report on the Willow Foundation 10K run and our runners’ performances!

In very testing conditions everybody put in a very good performance and despite survival being the main aim, some very creditable times were put in, especially considering that by the end of the race the surface was becoming somewhat slippery (being partly run on grass) and into driving rain, wind and hail.

A special mention must go to Nat Young whom it seems must have been training very hard over the last few months as he went off like the proverbial hare, only to be reeled in by Terence two-thirds of the way in with Terence coming in first of the SA Law runners.

The finishing order on Sunday was:

Terence Ritchie       46.36
Gary Dunger           47.03
Nat Young              47.06
Rob Ryall                52.12
Chris Alexander     57.54
Simon Walsh          58.23
Tracy Lacey-Smith 59.09
Nikki Petken           65.36

I am sure you will all join me in congratulating all those who participated, and many of whom are no doubt now saying “never again” after the experience.

For a full (humorous) account by another participant of the challenges yesterday see the RunningAmok blog.

And it is not too late of course to sponsor the team, visit www.justgiving.com/SALaw, it would be great to reach £1000!

Author: Chris Alexander

First Quench Retailing Limited, owner of Threshers, Haddows, the Local and Wine Rack brands has gone into administration.  With around 1,300 outlets nationwide there will be many nervous landlords concerned about what administration means for them and their rental income.

Tenant insolvency is an increasing phenomenon as the difficult economic conditions persist.  The recession is impacting upon businesses of all sectors occupying every type of commercial premises.  Alongside employment costs, rent is a large item of a businesses expenditure and can be one of the first expenses a struggling tenant will default on.

Once a tenant enters into a formal insolvency procedure, whether it be administration an IVA/CVA, receivership, or liquidation a landlord is likely to loose out financially to some extent along with the other creditors (unless they can rely on a personal guarantees or other similar security).  Formal tenant insolvency can also complicate attempts to urgently recover possession of a property from a defaulting tenant, thereby frustrating attempts to re-let the property and preserve the rental income.

It is prudent for landlords to maintain a close relationship with their tenants and not to allow significant arrears to accumulate.  This is because once an insolvency procedure has been initiated, in many cases, there will be a moratorium on enforcement action which will prevent a landlord from taking any form of enforcement action against the tenant (generally without permission of either the Court or an insolvency practitioner).  Such delays can prove even more expensive for landlords who are already facing significant rent arrears.

We would always encourage landlord’s to take advice at an early stage before their options begin to narrow.

When I get older, losing my hair, many years from now ……

will you still need me……

when I’m sixty-five?

The answer from businesses to Paul McCartney’s love song today will be … No.

The high court has ruled that is legal for UK employers to force workers to retire at the age of 65. In this case, the court was required to determine if forcing people to retire at 65 is against European law.

The ruling means that employers can dismiss a member of staff without a redundancy payment on their 65th birthday. This is still subject to following the correct procedure and the worker can request to work beyond that date which an employer must consider but can refuse without having to give a reason.

It is never as simple as it seems however, as the government has said they will review the retirement age in 2010 and at which point they could choose to end the default retirement age.

Author: Simon Walsh

Experian’s announcement that 25% fewer firms became insolvent in August 2009 compared to July 2009 is welcome not only in its own right, but also because it continues a trend of positive economic indicators which has developed over the last month or so.  On top of this, the FTSE 100 is currently managing to stay above the 5000 mark and some big ticket M&A announcements regarding Cadbury’s and Kraft as well as T-Mobile and Orange have lead to more positive sentiment being expressed in many quarters.

Such upbeat comment can only be welcomed after the plethora of bad news which has been dolled out for so many months and whilst no one is prepared to call recent events as a recovery, the signs are increasingly that there are more opportunities for businesses to exploit if they can position themselves correctly.  However, such opportunities must always be looked at in context and deals should not be done at any price.  Proper customer/product due diligence is still required and, if anything, greater care should be taken in the current climate because dealing with disputes when human and financial resources are under more pressure than ever can quickly have a disproportionate and counterproductive effect on a business.

Simple steps that we are currently seeing being overlooked when contracts are being negotiated include:-

1. Not taking steps properly to investigate a potential customer’s or supplier’s financial standing.
2. Accepting your customer’s or supplier’s terms and conditions without either asking to see these where they are simply referred to on a purchase order or giving them the proper attention they warrant if they are provided.
3. Not seeking to assert your own terms and conditions in place of, or alongside, your customer’s / supplier’s terms and thereby losing the protection of valuable limitation and/or exclusion provisions or, worse, more generous payment terms.

There will always be cases where there is very limited scope for negotiation.  However, our experience suggests that both suppliers and buyers recognise that in the current climate more realistic provisions have to be taken to secure a signature on an order form and a few simple questions can often lead to more favourable terms being secured which could well pay dividends and avoid potentially costly problems further down the line should unanticipated problems arise.

A former police sergeant is suing Kent Police under the Disability Discrimination Act (“DDA”).  She suffers from a voice disorder, which results in her generally only being able to speak in a whisper.  She wanted to become a dog handler but experienced problems because she could not shout controls to the animals. 

She claims that the force did not give her the opportunity to carry out the dog training.  She has further claimed that she felt discriminated against after being asked to attend a meeting with the assistant chief constable after she left.

When an employee suffers from a ‘disability’ under the DDA, an employer is obliged to make any ‘reasonable’ adjustments in order to assist that person in their employment.  However, there is a limit to what is ‘reasonable’. It seems in this case that there is little that can be done if the employee’s disability actually prevents her from being able to do her job.  Perhaps the dogs could be communicated to through whistle commands, but it would certainly go beyond reasonableness to expect the police force to re-train all of its dogs to respond to whistle, rather than shout commands, simply to cater for one officer’s disability.

Employers are (and indeed should be) expected to assist employees with disabilities in any way that is reasonable, but there is a limit to what is expected of an employer.

The Tribunal Judge made his opinion clear in his comment that, “The Disability Discrimination Act is not a charter to blame someone for everything that happens to them in life”

Diageo is in the process of taking legal action against Sainsbury’s for selling it’s own version of the gin-based drink called Pitcher’s. Sainsbury’s released Pitcher’s back in April this year stating that it was available in time for events such as Ascot, Henley and Wimbledon. Sainsbury’s has also advertised Pitcher’s as being cheaper than the branded equivalent, as well as saying that it has performed better in taste tests.

Trademark experts say that Diageo is likely to be concerned that Sainsbury’s will be passing off the ‘copy’ drink as Pimm’s, as they have recently spent millions of pounds advertising their product using the catchphrase “it’s Pimm’s o’clock”. Comparisons can be drawn between the packaging of the two drinks, with both using red lettering in similar fonts, with a gold logo at the top of the label.

This is not the first time that such matters have reached the courts, in 1997 Asda was found guilty of passing off its Puffin bars as United Biscuit’s Penguin biscuits. Brand owners will now be watching this matter carefully as it may encourage them to come forward if other retailers have ‘copycat’ items on their shelves.

Diageo has admitted that it is taking legal proceedings in relation to an intellectual property matter, with Sainsbury’s saying that it will defend itself ‘vigorously’ against the allegations.

Author: Chris Cook

SA Law won the toss and elected to bat - openers Satinder and the skipper got off to a lively start with some unexpected quick singles until Satinder was caught off a top edge.  Chris A joined the skipper at the crease, both batting well to retire after reaching 25.  Gary and Terence then formed a useful middle order partnership, both experiencing some good fortune as catches were spilled by the opposition.  Terrence T had a rare failure with the bat after trying to force the pace in the last few overs.  The returning Simon then reminded the team of his “talents” from former years as he joined Terence at the end of the innings to lift the score to a respectable 104 from SA Law’s 16 overs.

In reply, both Terrence and Satinder had tidy opening spells to keep the Rayner Essex openers below the required run rate, assisted by some enthusiastic fielding as always, most notably from the ever-exuberant Nat and Terence.  Matthew had trouble finding a good line and length and was punished by some solid stroke play by a suspiciously Aussie-looking Shane Richards, although later improved and was rewarded with a wicket.

Chris A also bowled well, his first ball clean bowling Rayner Essex’s opening batsman.  As the pressure mounted towards the end of the innings, SA Law’s fielding started to become suspect, as Gary, the usually dependable Terrence and Simon all spilled catches.  Terence was left to bowl the last over with Rayner Essex needing 8 runs to win, and with a streaky two through the slips, a dropped catch for which the batsmen ran two and a powerfully struck four from the third ball, Rayner Essex reached their target with three balls to spare to record their seventh straight win of the summer.

The team will look to drown their sorrows from a season of defeats at the end of season curry night next month.

Whilst reading the Sunday Times on the weekend I came across an article reminding me of the dangers of Facebook.

According to the article, someone referred to as ‘Lindsay’ forgot that her boss was a ‘friend’ of hers on Facebook when she wrote “I HATE MY JOB – my boss is a total pervvy ****er. Always making me do stuff just to **ss me off!”

So later that day her boss responded to her comment on Facebook, reminding her that she was still on her six month probationary period and told her not to bother going into the office the following day.

Whilst this is a sobering reminder of the risks of Facebook, employers should also be careful about conducting their disciplinary procedures through such means.  It seems in this case that ‘Lindsay’ was still within her first year of employment, but had she been employed for longer, this kind of response from her employer could have landed him in an employment tribunal.

As employment lawyers continue to advise on redundancies, pay cuts and recruitment freezes, it is surprising to read that the latest CIPD/KPMG Labour Market Outlook (LMO) shows that one in ten employers intends to recruit migrant workers in the third quarter of 2009.

Whilst the number of UK nationals in employment fell during the first quarter of 2009 compared with the year before, the number of non-UK nationals in employment actually increased in the same period.

When asked about this, over a quarter of employers have said that they cannot find British workers to do the jobs.  This shows that employers are successfully using the new points-based system introduced in February 2008 to recruit skilled workers. 

Gerwyn Davies, public policy adviser of the CIPD, commented that “The best way to provide ‘British jobs for British workers’ is to make Brits better equipped to compete in the job market rather than raise barriers to skilled migrants”.

For more details from this report, see www.cipd.co.uk