Author: Nikki Petken

Many employers may believe that they have the recruitment process down to a fine art, however it would seem that is not the case. A recent poll of 1256 employers* revealed the following top five deciding factors in selecting the best candidate for a job;

1. Ability to do the job.
2. Qualifications.
3. Social skills.
4. Physical appearance.
5. Hygiene.

The worrying statistic is that 67% of employers admitted to being inclined to give a more attractive person the job if up against a candidate with equal strengths. This may be consciously or unconsciously but nonetheless it is a risky subjective criteria to rely upon.

From an employment law perspective, it can easily lead to potential discrimination on grounds such as sex, race or disability. Applicants do have protection from discrimination and they are entitled to bring claims in Tribunals. As examples, a facial disfigurement is actually deemed as a disability; whilst a factor like obesity need only have a substantial adverse affect on day to day activities and be long term to qualify as a disability.

The risk is that the use of one subjective criteria can easily lead to other preferences being factored into a decision. Before you know it you would have lost the transparency and objectiveness of your decision.

The lesson to learn from this research is that an investment of both time and money in your recruitment process cannot be underestimated;

• Ensure you select your interview panel carefully and consider whether they are capable of handling the recruitment process.
• Do not be afraid to consider training anyone involved in the recruitment process.
• The interview panel should prepare their questions beforehand ensuring they are objective and non-discriminatory.
• Prepare a job description and person specification. Ensure that the panel are familiar with this and utilise these in making their decision.
• Keep records of the interviews notes for at least 6 months. Candidates often request feed-back and this is where the majority of employers slip up and claims arise.

If you have done the prep work and steps above, then recruitment should be easy. The benefits are that you are more likely to recruit the candidate that fits the role and save costs on management and further recruitment in the long term.

*Research conducted by HireScores.com

Author: Clare MacKay

With the shops full of new uniforms and back to school offers, September for many parents means the start of the application process for places at primary and secondary schools.   With many of the most popular and best performing schools heavily over-subscribed, the temptation may exist to try and play the system to ensure a place is obtained at a parent’s preferred school.   Councils charged with the allocation of school places therefore need to be on their guard to avoid abuses of the application process and to ensure that places are fairly allocated to children in accordance with set criteria.   But how far can a Council go when it suspects that a parent has, for example, used an address near the favoured school which is not in fact where the family reside?

Well, the Council certainly can’t now act all cloak and dagger and use its surveillance powers under the Regulation of Investigatory Powers Act 2000 (“RIPA”).   That legislation was introduced to allow Councils to carry out covert surveillance on individuals if it suspected that serious crimes were being committed.   However, planning to commit an act of terrorism is a long way from manipulating your application for a place for your child at an oversubscribed school.

Such was the situation that Jenny Paton and Tim Joyce found themselves in.   Ms Paton, Mr Joyce and their three young daughters were the subject of covert surveillance by Poole Council following two phone calls alleging that they did not actually live at the address they had given on their primary school application.   The family were watched as they went on with their daily family life at their home and a detailed record was kept of their movements.   Even their car was described as the “target vehicle”.   Ms Paton and Mr Joyce only became aware of the surveillance when it was inadvertently revealed to them at a meeting to discuss their application.

The tribunal found in acting in this way, the Council had gone too far.   The surveillance was neither proportionate nor could it reasonably have been believed to be proportionate.  The surveillance of the family was therefore unlawful and the family’s right to privacy enshrined in the Human Rights Act had also been breached.   As an aside, it seems that the family had not, in any event, actually manipulated the application process but had simply but their house up for sale and had continued to live in it until the end of the requisite period to ensure that they obtained a place at their preferred school for their daughter.

There are of course times when it is appropriate for a Council to carry out covert surveillance – but to do so, such use must be proportionate and the use of such tactics in school admission cases is extremely unlikely to be lawful in future.   With budget cuts to public spending, surely Council funds are also better spent elsewhere.   The Coalition Government plans to change the law to require the sanction of a magistrate before a Council can use its powers under RIPA, with such permission only to be granted to prevent serious crime.

Councils suspecting foul play in the school application process will now have to find alternative ways to deal with tip offs about abuses by parents anxious to secure a place at the best schools for their children.   Such suspicions may be best dealt with by talking openly and frankly to the parents in question and asking for documentary evidence to be produced of their residence at the address in issue.  Very few people are adept at lying in the face of direct questioning and this is likely to be a fairer, more proportionate, cheaper and ultiamtely more effective way of weeding out fraudulent applicants than hanging around in unmarked cars watching the every move of a family going about its day to day business.

Author: Nikki Petken

You may recall SA Law’s blog on 25 September 2009, in which we confirmed that the High Court had ruled it was legal for employers to force workers to retire at the age of 65. The government has now made a dramatic u-turn and proposed that the current default retirement age of 65 is scrapped in the UK from October 2011.

The implications are that employers would no longer be able to dismiss staff because they had reached the age of 65.

The current position is that an employer can meet with an employee 6 to 12 months before their 65th birthday and notify them of their intention to retire them at that date. An employee is entitled to put forward their case not to be retired but the only obligation on an employer is to consider this. It is the employer’s discretion as to whether or not to terminate employment.

Groups that have long campaigned for the default retirement age to be scrapped have welcomed the decision. Marion Birch, Chief Executive of Age UK Hertfordshire has told SA Law, “Older people are one group of society that are not protected from discrimination by legislation so we are delighted that people over the age of 65 will have full employment rights for the first time. Age UK Hertfordshire is pleased that the Government is finally sweeping away this discrimination against older people and will be allowing individuals the dignity of choosing when to retire.  Enabling people to work and contribute their skills for longer not only keeps them active, it also makes economic sense as our population ages.”

Given the length of notice required to notify an employee of their intended retirement, it is likely that these measures will come into force from 6 April 2011.
The main concern appears to be the length of time in which employers will need to come up to speed with the new law. Really they have only just got to grips with the retirement process and employers will need to deal with their new workforce at that time in particular;

•    reviewing policies and practices such as benefits to ensure these are not discriminatory to employees over the age of 65 years;
•    consider alternatives to forcing retirement such as adjustments to role, variation of terms or flexible working.

If you have any questions about the new retirement plans, do not hesitate to call Nikki Petken on 01727 798023

Author: Jacqueline Button

Public sector employees worried about their pay and pensions aren’t the only ones affected by the new government’s clamp down on spending.

Property Week reported last month (4/6/10) that on 24 May Whitehall’s Efficiency and Reform Group announced a halt to lease extensions in the current financial year that do not have Treasury approval. The government is also planning to exercise break options which it has this year, including at Eland House, Victoria Street SW1, the 24,200 sq ft headquarters of the Communities and Local Government Department.

A client of ours has had a similar experience – a government department tenant, initially keen to renew their lease have backed out of negotiations and will be relocating to cheaper premises. (Spare a thought for the staff – no pay rise, no pension and forced to work in the back of beyond).

So landlords of public sector bodies must beware – your once star tenants are fading. Check break dates and expiry dates. If any are coming up soon, you may find yourself looking for a new tenant.

Author: Guy Thomas 

Everyone knows that Julius Caesar “came a cropper” on the “Ides of March” (15th March).

Well, supporters of Pompey’s CVA may yet come to dread the week containing the Ides of July (15th July 2010). Predictions and augers can (as Caesar found out) be tricky, with that in mind, Thursday, 15th July looks likely to be last day when Her Majesty’s Revenue & Customs (HMRC) can issue a challenge against Portsmouth City Football Club’s Company Voluntary Arrangement (CVA).

Following the last meeting of Pompey’s creditors on 17th June 2010, there was a lot of positive publicity for the Joint Administrators of Portsmouth City Football Club.  The Chairman of that meeting (at which the CVA was approved) was Mr Andrew Andronikou (one of the joint Administrators of Pompey).

HMRC challenge?

If HMRC do decide to “have a go” then they are likely to chuck the kitchen sink at it in the hope that one of the other issues raised might be sufficient to force a reconsideration of the CVA approval. Likely grounds for the application include:

1. The reduction of HMRC’s “creditors” vote from £37,768,387.13 to £23,895,044.67? i.e. taking away their ability to veto the CVA.

2. The inclusion of the “Football Creditors” in the vote of “unsecured creditors” when they should have been treated as “secured borrowers”? 

3. The inclusion of supposedly secured creditors like Portpin (Mr. Chanirai) and Ocadia (Mr Gaydamak) in the vote of “unsecured creditors”.

If these or any challenges like them succeed then a 75% majority cannot be achieved. No 75%, no CVA. No CVA? Well let’s just say the Championship will be a harsher place with a further point deduction for Pompey.

Et tu Pompey?

To read the full article, click here.

Author: Victoria Wells

The sudden death last month of former “Diff’rent Strokes” star Gary Coleman has highlighted the importance of having a valid Will, and keeping it up to date.

Despite his showbiz background, Gary’s personal circumstances were in some ways not that different to many of us, with both an ex-wife and a former girlfriend on the scene, and the lack of clarity around his wishes has led - perhaps inevitably - to dispute between the two.

There is also uncertainty about what to do with his ashes, surely a situation which none of us would want our loved ones to be left in.

In his 1999 Will, Gary gave instructions about his funeral, that he wanted it conducted by people who had no financial ties to him and who “can look each other in the eyes and say they really cared personally for Gary Coleman”.

He also in the Will appointed a close friend as his executor.

In 2005 it appears that Gary made a new Will, in favour of his then girlfriend, Anna Gray. The Will specified that he did not want any sort of funeral service.

Following his marriage to Shannon Price in 2007, he made a “homemade” Will, in which he named his wife as his sole beneficiary. Apparently this was signed, but not witnessed, so lacks full testamentary validity. They divorced in 2008.

Perhaps inevitably, Ms Price and Ms Gray are now in dispute about who should administer Gary’s estate, and who is entitled to that estate. Ms Gray argues that they were together for eight years, and that the 2005 Will is the valid “last Will and Testament”. Ms Gray contends that, as they were still living together at Gary’s death, despite their divorce, she is entitled to be treated as his “wife”.

A lawyer has now been appointed by the courts to sort out the mess, and in the meantime both Gary’s ashes and his estate remain in limbo.

The heartache and expense of all of this could all have been avoided if Gary, following each major change of circumstance in his life, had taken professional advice to ensure that his latest Will matched his current situation and that his belongings and his funeral would be dealt with as he wished, by the people he wanted.

Author: Nathanael Young

Attack and Counterattack

Recent news stories have highlighted the lengths FIFA are prepared to go to in protecting its brand.

Last Monday’s Holland v Denmark game saw 36 female supporters wearing orange mini dresses participating in an ambush marketing stunt for the Dutch beer brand Bavaria.

Ambush marketing, the practice of finding a way to promote a brand at a high profile event without paying a sponsorship, has long been a marketing strategy of Bavaria. At the 2006 world cup in Germany, 1000 fans wearing branded underwear were denied entry to a Holland game, and more recently it has been targeting the Dutch national team matches.

FIFA has promised to come down hard on any brand trying to highjack the tournament and this was the case last Monday. The group of women were ejected from the stadium and two of the 36 were later arrested. In addition to this, the ITV pundit Robbie Earl has been sacked by ITV as it has emerged that some of the tickets used by Bavaria were from the ex-Jamaica and Wimbledon midfielder’s  allocation;  which he was  prohibited from redistributing to third parties.

Logo or No Logo

With the world cup now in full swing, businesses around the country have included references to the event in their advertising and promotional activity in a bid to cash in on its popularity. Some of those are official sponsors, who have paid millions to be able to do so; however, a considerably large number of businesses haven’t paid for the privilege. They simply seek to associate their business  with the  pride and passion that the tournament evokes, with the ultimate aim of increasing sales. However it does come with some risks attached.

Many business may not be aware of the extent to which FIFA have rights over and above ordinary trademark or copyright protection in South Africa.  FIFA has every motivation to stamp out such practices, which threaten the sponsorship revenues from their official partners. It already has trademark protection over a number of words, like ‘2010 FIFA World Cup’ and images, such as its official emblem for the tournament. The host country has gone so far to keep FIFA and its sponsors happy, it has created a new list of prohibited marks under special legislation, even including the use of ‘2010’ on its own, which is not a trademark. 

For businesses operating in the UK, the situation is rather less draconian.  However,  there are reports that FIFA has obtained a ruling against a sports bar near the Loftus stadium using phrases such as ‘World Cup 2010’.

Things to Remember…

 The most important guidance is to always avoid the using of any FIFA artwork or branding – such as its logo or the ‘man kicking ball’ official 2010 world cup emblem. For more information and guidance about when you can cannot use World Cup related terms, FIFA has provided a Public Information Sheet which states what is acceptable and the terms of use.
Use of the term ‘World Cup’ or similar phrases is less likely to be an issue, although each situation is different, so it is important to take legal advice in order to avoid prosecution.

Author: Guy Thomas 

In the run up to today’s creditor’s meeting at Pompey’s Fratton Park, Guy Thomas has been commenting in www.sportingintelligence.com on the background to today’s meeting and the options available to the creditors of Portsmouth City Football Club (In Administration) when they vote. Click here to read more.

Authors: Steve Kenneford & Caroline Beale

There still appears to be confusion over the obligation to provide Home Information Packs since the announcement to suspend the same on the 21st May 2010.

The situation is as follows:-

Any/all properties marketed prior to the 21st May 2010 will require a fully compliant HIP.   Any properties marketed after the 21st May 2010 will no longer require a HIP but will require an Energy Performance Certificate to be provided at the cost of the seller.   The cost of the local authority and drainage searches will once again fall upon the Purchaser. 

So, effectively, with the exception of the EPC which is being retained, the last 4 years and probably the 3 before that (whilst we were all preparing ourselves for the new HIPS revolution) were a complete waste of time, effort, money and a further erosion of our already depleted rainforests in terms of the monumental waste of paper involved. Thanks for everything Yvette (Cooper)!

It remains to be seen whether any further changes will be made and we will keep you advised.

Author: Guy Thomas 

An interesting piece from Business Advisory and Insolvency specialists BDO that reminds directors of football clubs that as the fans enjoy the thrill of the competition in South Africa, it shouldn’t distract them from their own issues closer to home.

www.bdoadvisorybites.co.uk/index.php?id=298&uid=6270