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: 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.

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 Chris Cook

When I think of the world cup I think of 3 things: Gazza’s tears, penalty shoot out disappointments and…unexplained work place absence!

There is simply no getting away from the fact that some fans are so passionate about the team they support that they might be tempted to ‘pull a sickie’ to watch critical matches.

Here are my tip tips for managing “World Cup Fever”

1. Flexible hours  - allow employees to take the time off to watch the games provided that they make up the hours at a different time
2. Shift swaps - allow employees to swap shifts in order for them to be able to watch the games as long as an appropriate level of cover is organised
3. Unpaid leave - allow employees to take unpaid leave provided that this does not interfere with business operations
4. Annual leave - remind employees that they will need to book annual leave in advance if they wish to watch the games, with approval of such request based on maintaining adequate staffing levels.
5. TV/radio in the background - allow employees to have the TV or radio on in the background so that they can keep track of the games as they work or having special screenings of the games on the premises.  Remember if you are planning to show the matches at work make sure you have a TV licence and you have paid your PRS licence
6. Not everyone is a football fan - employees should be treated fairly and equally at all times. You could therefore consider offering an incentive to anyone who agrees to work through the matches when they are being screened in the office

In summary when managing your employees’ during the world cup ……..

“You’ve got to hold and give , But do it at the right time , You can be slow or fast , But you must get to the line , They’ll always hit you and hurt you , Defend and attack , There’s only one way to beat them
Get round the back”  New order  “World in Motion”  1990

Come on England!!!!

Author: Terence Ritchie 

In line with their pre-election manifestos, the new  coalition  government has announced that the definition of ‘previously developed land’  otherwise known as ‘brownfield land’ is no longer to include garden land.  The intention being that it will be easier for councils to stop unwanted developments and reject planning applications for developments that local people oppose, or which are considered to ruin the character of the area, preventing the practice of ‘garden grabbing’ by developers.

Under the old rules, residential garden land was considered suitable for development and the previous government encouraged high density development on such sites. Local authorities have found it difficult to prevent the trend of houses being built in gardens as developers and home owners alike have taken advantage of these rules . Indeed, in 2008 a quarter of new homes were built on garden land. This is a figure the new government is keen to reduce by favouring development of existing empty properties or the development of what they consider to be genuine brownfield sites such as derelict industrial areas and wasteland. Whether it has the desired effect, only time will tell. In practice, many small to medium sized developers  nationwide  will be looking at this with a degree of concern with planning restrictions likely to become more strict as a consequence.

Author: Guy Thomas

The BBC has recently reported the latest twist in the Pompey’s tale.

The surprise proposal from Griffins comes just a few days before the next creditors meeting of Portsmouth City FC creditors at Fratton Park, called for 17th June 2010, which will consider and vote on the original CVA proposal.

This has provoked an interesting exchange between the respective firms. No doubt this will be further played out in the media in the run up to what promises to be a feisty meeting.

Also, in no particular order; HMRC rejected the original CVA proposal then UHY Hacker Young came out with the Administrators response to Griffins. In response to that (as well as other commentary), Griffins have come out with a follow up statement.

A scan of the media coverage and Pompey related forums has also been quite revealing.

Many seem unaware that Pompey’s creditors can propose a modification to the original CVA proposal; it’s a right that isn’t just restricted to Insolvency Practitioners who are acting on behalf of other creditors. Once again this illustrates the power to determine the outcome of the Administration of Pompey lies not with the insolvency practitioners but the creditors who are entitled to vote at the CVA meeting.

There are a few other points about the above exchange as well as the Forum posts that I would like to draw out:

Few seem to understand that Griffins are acting on behalf of some of Pompey’s creditors, and even fewer still wonder which creditors Griffins act for. 

Griffins put forward three modifications, the focus on the former owners/directors potential personal liability has not done justice to their sensible analysis concerning  the other options for cash flow and income which could increase the proposed dividend (even without any withdrawal of creditors claims) from 20/25p to 65p in the £.

A significant increase that seems to have been largely passed by.

It seems that with the Griffins approach, it is not necessary that the players are sold for £30m. If they were given away creditors would still get at least 37p in the £.  There is also another 8p on top of the club stays in the championship or gets promoted back to the premier league.

Griffins have specifically denied that they want any role as Administrator or CVA supervisor for Pompey – given their track record as investigative liquidators (often acting for HMRC) it’s surprising that this denial appears to extend to the role of “old” Pompey’s liquidator if the CVA and subsequent transfer of the clubs “football share” to a “new” Pompey goes ahead- I would have thought that role would have fitted them like a glove. Perhaps they are making sure that the modifications are the focus of all the attention rather than a competition for fees.

The Griffins proposal is clearly designed to put pressure on the CVA nominee and the original CVA’s informal “backers” to “up the ante” and agree to more of a dividend for unsecured creditors.

Until the creditors vote at the meeting on the 17th, none of the options for the dividend (20p or 25p or 65p or even 99p) are set in stone. As always it’s the creditors’ choice.

The more they squeeze out for creditors the less of any future earnings/cash-flow will be available for the “new” club. That’s a tricky balance and one that Griffins and UHY Hacker Young disagree on.

It will be interesting to see if future coverage identifies that balancing act as being between the creditors needs and “their club” (as fans, etc) having less cash for players, facilities etc next season, or more realistically in my view, whether they see the balance as being between the unsecured creditors and the future owner of the “new” club, who will have less short to medium term “value” in the company that he is buying out of the CVA - if the Griffins analysis is accepted.

UHY Hacker Young have hinted that the level of unsecured creditors will fall but have not set out by how much this will be.  This could further increase the return to the remaining creditors and might be a major factor in any modifications.

There is more to be written on this (hopefully) before the creditors meeting; not least of which will be the issue of any potential personal liability of the former directors /owners of the club and whether they might effectively assert a right of “set off” against the club if any claim were made against them. This complex area is difficult to describe with “broad brushes” but case law indicates that a person who is liable to an insolvent company (known as a “contributory”) cannot “set –off” money owed by the company to him.

Hopefully, the argument between Griffins and UYH Hacker Young will benefit and not baffle the creditors at the forthcoming meeting and their declaration of “non” interest in an appointment will help clarify Griffins role.

More hopefully still, yet another modification will be forthcoming….I wonder if another creditor has another proposal lined up to follow on from Griffins? Say 45-50p in the £…..

Now that would make for a very interesting creditors meeting on the 17th.