Now that the transfer window has closed, the list of free agents published by the Professional Footballers Association makes for illuminating reading.

Whilst (in theory) many of these could be signed up by clubs tomorrow, the BBC (and others) have already reported on how quiet the transfer market has been this season.

When players like DeMerit, who performed well for the United States at the recent World Cup, are still looking for a position at this stage of the season, then it seems like financial restraint has at last dampened the market.

Hang on…..whilst its tempting to point to this as a sign of the financial strain that clubs are still under, statistics published by the German based website www.transfermarkt.co.uk seem to point to yet another enormous mismatch between the monies received in by Premiership clubs from player sales and how much they have (reportedly) had to fork out for their new purchases.

No one should be surprised that Manchester City tops the table for net transfer spending but with an apparent mismatch of £247.490.000 for the Premiership’s season so far (i.e. the reported transfer revenue received in by Premiership clubs is £168.160.500 & the reported transfer expenditure spent by Premiership clubs is £390.901.500), it’s surprising that more alarm bells haven’t rung out about this.

Put another way; it’s an odd sort of belt tightening that leads Premiership clubs that are paying for new players to spend close to quarter of a billion pounds more then they have received in on the sale of other players.

Since my last blog The Stig Issue: BBC battles to keep driver veiled, the BBC has lost its application against HarperCollins to keep the Stig’s identity secret. We will not know the reasons immediately, since the judgment will be given in private. However, since Formula 3 driver Ben Collins was in court for part of the case, the BBC’s refusal to confirm whether or not he is the Stig now seems a little coy. By relying on confidentiality, they have more or less confirmed the truth of Collins’ planned disclosures.

Despite this set back, it may still be the BBC proceed with their case. Failing to obtain an interim injunction to stop something being published is not the same as losing at trial. Generally, the court decides whether to grant such injunctions on the basis of the balance of convenience, and not based on who it thinks will win. The BBC might still go on to win damages.

Meanwhile, public speculation will shift to another issue. What will happen to the Stig now?

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

For years, the identity of Top Gear’s the Stig has been the subject of speculation and amateur detective work. Now, with publisher HarperCollins set to reveal all in a new book, the matter has been passed to the lawyers. The BBC has applied for an injunction to halt publication, and both parties were in the High Court on Monday over the issue.

At present, further details of the case are hard to come by. It seems the BBC is alleging that the publication breaches confidentiality agreements entered into in connection with the show, and that HarperCollins is standing by its right to publish the mysterious driver’s story. No doubt more will emerge in due course, although how much depends on the outcome of the litigation.

To the public, the interesting question may be the face behind the trademark black visor, but there are likely to be serious legal issues in a case of this sort. Secrets are not usually kept for long under the constant glare of media publicity; they have to be carefully guarded. There can be little doubt the BBC has given serious thought to the issue from Stig’s first appearance in 2003, or there would now be nothing confidential to protect.

In English law, secrets of this sort will be protected by the law of confidence. To stop disclosure, someone will generally have to show the information is confidential in nature, that it was disclosed in confidential circumstances and that there is a threat to use it to their detriment. The best way to satisfy this test is by having a carefully drafted confidentiality agreement.

In this case, HarperCollins is not likely to have received their information from the BBC, so there is unlikely to be a signed agreement. It may be the BBC will instead allege the publisher is obliged not to use information they received from the unknown driver, since they knew or ought to have known that was confidential.

There is precedent for this; since when Michael Douglas and Catherine Zeta-Jones sued Hello! magazine for using unauthorised images of their wedding, there was again no confidentiality agreement between the magazine and the couple. In that case the source of the photographs must have been a guest or member of staff with a hidden camera. However, it was held that Hello! were liable for using the images obtained in breach of confidence.

Cases of this sort may seem far from the world of business. However, all businesses will have confidential information about their processes, customers, suppliers and systems. Sometimes, this information can be the single most valuable thing the business owns. It makes sense to control and protect it, and this means carefully worded confidentiality clauses are a must.

After all, some things are best kept under your hat – or helmet.

Southend United Football Club, Sheffield Wednesday Football Club , and Cardiff City Football Club Limited. All three clubs are in the Royal Courts of Justice today facing hearings to decide whether they should be wound up.

Its been well reported that payments for historic debt have already been made with Her Majesty’s Revenue & Customs (HMRC) to avoid any immediate doom.

However, just because they lost the last two rounds with Pompey, HMRC are not going anywhere.

In fact the defeats, especially whilst the issue of the Football Creditors Rule remains undecided, will have likely increased the desire of HMRC to hammer down on recalcitrant Clubs who are late with their tax. Further, a winding up petition puts HMRC in the right position to set up and agree payments for future tax liability.

Barring a late intervention by other creditors, such as “Charterhouse Commercial Finance Plc” against Southend, It looks like these three clubs “deals” with HMRC will help them avoid disaster today.

But they (and other Clubs) had better keep up the payments on the agreed terms, or else HMRC will be back to Court for more attempts at winding them up.

The golden rule with all debt repayments, football clubs and ordinary companies alike is to keep the creditors informed. Above all, no surprises. Having said that, I can’t see HMRC being too sympathetic to any Clubs that need to change payment terms later in the season, can you?

I am pleased to report that SA Law recorded its third consecutive victory on Wednesday evening against a strong Hillier Hopkins side.

Having elected to bat on a damp evening, SA Law made a stuttering start with Satinder and Rob Griffiths both falling early on and ringer Nav and Chris Alexander departing without scoring.  The skipper was joined by Gary Dunger at the crease, the latter of whom batted impressively to reach 25 and retire before ringer Josh Rose arrived and gave us the usual display of powerful hitting to score him 25 and retire in express fashion.  Simon Walsh then came to the crease and the rain started to fall and gave us a humorous display of his skating skills as he spent most of his innings on his backside.  The heavens opened 11 overs into the scheduled 15 and the SA Law innings finished on 90 for 4, giving Hillier Hopkins a decent target of just over a run a ball.

There were calls to call off the match during a 30 minute downpour but after discussion the match carried on.  Ringers Josh and Pahrag produced tidy bowling spells in slippery conditions.  In the circumstances SA Law’s fielding was solid although there were understandably a few errors, most notably including Pahrag’s son copping a fearsome blow to the shin and Chris A bottling a routine stop in the field, clearly mindful of the same outcome.  Chris A atoned with some solid bowling against some decent batsmen, as he (one wicket) and Satinder (two wickets) both kept the run rate down.  Hillier Hopkins finished on 77 for 7, which was 319 runs short of their Duckworth-Lewis adjusted score.

Many thanks to the players and spectators.  It is likely that this was our last game of the season, and if so the players are to be commended on finishing undefeated against some good opponents, particularly in the absence of Rob “we’ve never lost a game when I’ve played” Ryall.

And on the Third Day the Word came down… Not Guilty!*

After yesterday (the second day of the hearing) in which the HMRC finished off putting their case to Mr Justice Mann, Pompey’s lawyer, Richard Sheldon QC, took about three hours to explain the club’s position and plead for the Clubs survival (amazingly) it worked.

The Judge gave his executive summary this afternoon and, as reported by Portsmouth News and others, HMRC have decided not to Appeal. No doubt the judge will publish his fulsome and no doubt carefully worded explanation, very soon.

The judge’s decision was hoped for by many and expected by only a few.

Mr Sheldon had told the judge yesterday the club would receive a total of £48m over the next four seasons. The judge said that with £22.5m owed to football creditors this would leave £25.5m.

HMRC position was that they were determined to get the best deal for the taxpayer. High stakes poker, winner takes all, with a dealer called Mr Justice Mann.

This appeared to be largely technical case focused on case law, the interesting Football and Tax aspects were merely the setting, but in the end though the Judge seems to have taken the view that the alternative was too poor an outcome for all concerned (including the HMRC).

Yesterday, Pompey’s lawyer painted a Doomsday scenario for the judge if he failed to back the club in his verdict, stating that if the Revenue won the club it would prevent Mr Chainrai becoming the new owner and ‘in all likelihood [the Club] would go into liquidation’.

There is so much at stake for the HMRC that an appeal seemed inevitable (and I still would have rated their chances). You’ll notice who I missed off from that …the fans, they’ll not want to appeal this.

Where were Andronikou and Lampitt for the result?

Were they too embarrassed to show their face to the media and fans whose attention they had previously courted? No, that’s unfair.

They were more likely already preparing the Club’s Appeal had they lost.

Well that’s that, except for the lawyer’s fees of course. £230,000?

You’ll have heard the expression: “Play Up Pompey”, well now it’s “Pay Up, Pay Up Taxman”.

*Well not exactly, not guilty but you get the gist.

The hearing of Her Majesty’s Revenue & Customs’ (HMRC) appeal against the approval of Portsmouth’s Company Voluntary Agreement (CVA) kicked off this morning in Court 52 of the Royal Courts of Justice in front of Mr Justice Mann.

Portsmouth Today reported on the day’s proceedings by Twitter and with on line reports. BBC’s Dan Roan also attended and blogged before the hearing.

For all of you that can’t wait for the more considered analysis, the first days highlights are as follows:

The hearing started briefly but was immediately adjourned so the judge, Mr Justice Mann, to read extra papers submitted by HMRC.

Having read the additional evidence, the Judge began proceedings by listening to the submissions of Gregory Mitchell QC (for HMRC). Mr Mitchell said the taxpayer was always the victim when a football club went into administration. ‘It’s always the Treasury which loses out when a football club becomes insolvent. 

Mr Mitchell QC went on to say that HMRC had worked out Pompey owed them over £30m. ‘This assessment goes back some way - to the tax year of 2006/07 - and has been a very complex investigation. ‘PAYE should have been paid and has not been paid. He went on to describe the arrangements as. ‘a sham. It was a way in which the club could pay the money into a tax haven.’

Mr Mitchell went on to criticise another ’sham’ he alleged Pompey used to avoid paying tax.

This concerned money paid into players’ employment benefit trusts in what he described as ‘tax havens’.  He said: ‘The Revenue says these are disguised payments of salaries on which PAYE should have been paid.’

The arguments then went on to “whether HMRC might have suffered prejudicial treatment by Pompey” and, “whether that prejudicial treatment was unfair”.

Mr Justice Mann also queried exactly which grounds the Revenue has brought the case against the club and the differences between the rules of association for the premier league and football league (and what happens when a club goes bust in either league) and finally what happened when Wimbledon FC went bust.

There will be more tomorrow and the judgement will be handed down on Thursday.

As he went in to Court this morning Pompey’s chief executive David Lampitt was reported to be  “nervous” about these proceedings….It’s too early to tell but that sounds about right!

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.

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