Social media seminar – building business but protecting brand
The Pharos Legal team is delighted to be delivering a seminar on social media on 1 March – the theme being “Social media - how to build but protect your business”.We are teaming up with Linked2Success to deliver a worthwhile and interactive session in which we:
- cover key aspects of LinkedIn as an important B-2-B marketing tool and explain how Twitter & Facebook can also be included in the marketing mix to build business relationships and drive traffic to your website; and
- explore the legal issues around confidentiality and the protection of reputation, relationships and productivity in the context of the use (by businesses and staff for business purposes and by staff for personal purposes) of social media.
We'd be delighted if you could join us at 8.30am on 1 March at Airedale House on Kirkstall Road (where there is free on-site parking). The session will last until 11am. Please contact us for more details or take a look at: http://linkd.in/wgguXm
Springboard injunctions: protecting your business against former employees
Continuing on the theme of protecting your business, we are doing a lot of work currently with clients that are putting in place post-termination restrictions or enforcing restrictive covenants against errant former employees.A recent case should be of interest to any business considering taking similar steps – in QBE Management Services (UK) Ltd v Dymoke and others [2012] EWHC 80 (QB) the High Court granted springboard relief to an employer which initially applied for an interim injunction believing that three key employees had been headhunted by a competitor. Disclosure revealed that these employees had, during their employment and garden leave, covertly planned the resignation of several more employees and to move them and the employer's clients to the competitor company, which had been set up and financed for this purpose.
The court noted that the employees had gained classic springboard advantages through their unlawful conduct while still employed: they had used their seniority to influence staff they wished to poach, enjoyed constant access to their employer's confidential information (and been able to use this to help them secure financial backing for the new venture), and started to solicit customers. The employer was granted springboard relief for 12 months from the date of the employees' resignations to offset the effect of the head start which the employees had unlawfully gained.
Vicarious liability: could your business be liable for your employee’s violent response to a lawful instructions?
In two cases heard together, the Court of Appeal has ruled on whether employers were vicariously liable for violent acts committed by their employees against managers in response to lawful requests or instructions.
In the first case, the court held that an employer was not vicariously liable where an employee, whose manager telephoned him at home asking him to work a night shift because of a colleague's absence, cycled to work and attacked the manager while drunk. Although the assault happened at the workplace, it was otherwise unconnected with employment. The Court considered that this was an independent venture of the employee's own, separate and distinct from his employment.
By way of contrast, in the second case the court held that an employer was vicariously liable where a factory employee, in response to a reasonable instruction, violently attacked his manager. The possibility of friction was inherent in the factory environment. Further, the employee's attack was instantaneous and had a close relationship with the employment in both time and space. (Weddall v Barchester Healthcare Ltd; Wallbank v Wallbank Fox Designs Ltd [2012] EWCA Civ 25.)
Employment status (again)
In the case of Weight Watchers (UK) Ltd v HMRC (appeal number: FTC/57-59/2010) the Upper Tribunal (Tax and Chancery Chamber) has decided that 'Leaders' engaged to conduct Weight Watchers meetings were employees of Weight Watchers Ltd for the purposes of PAYE and NI contributions?In this case, the Leaders signed contracts describing themselves as independent contractors and not the servant of Weight Watchers (WWUK) They were required to pay their own tax and national insurance. The Leaders were only paid if they personally conducted their own meetings and they were required to obtain WWUK's specific approval in relation to time, date and place of any meetings. Although the contract contained an express substitution clause, the Leaders were obliged to find a suitably qualified replacement if they did not want to lead a meeting.
The Upper Tribunal concluded that the Leaders were employees of WWUK because they were required to provide their services personally and WWUK imposed a high degree of control over them.
Whilst WWUK had written a 'substitution clause' into the contracts, the Upper Tribunal adopted a purposive interpretation of the contracts in accordance with the decision of the Supreme Court in the case of Autoclenz v Belcher and concluded that in reality, the right to substitute was "fettered" because the Leaders were required to find a suitably qualified replacement and show good reason for proposing not to take a meeting.
