LEVY & MCRAE
is ranked in Chambers UK 2009:

Once again Levy and McRae top the ranking tables in Chambers UK: A Client’s Guide to the UK Legal Profession 2009. Top in Crime. Top in Defamation. Top in Media. And very near the top in all other categories.

CORPORATE FINANCE

Other Notable Practitioners

Andrew Sleigh is another standard-bearer of the department whose vast experience is matched by his exceptional knowledge.

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A CLYDEBANK cop accused of punching a handcuffed man three times has been found not guilty after a two-day trial.

At the beginning of the hearing, Dumbarton Sheriff Court heard that Constable Alan Fletcher had a “reputation” and is known as Kojak by the youths on his beat.

Pivotal witnesses, married couple Greg and Dawn Reid, who did not know the alleged victim, claimed to have seen the cop hit the 23-year-old man, who was on the ground.

Both took to the stand to give evidence against Constable Fletcher and described an “aggressive” arrest. (more…)

More than 400 workers at high street music retailer Zavvi are to lose their jobs after administrators announced the closure of 18 stores.

The announcement came as administrators Ernst & Young said the sale of five outlets to rival HMV and a further five to Head Entertainment would preserve 271 jobs.

Zavvi will now disappear from the high street as the last 18 stores are earmarked for closure before Friday, with the loss of 446 jobs.

E&Y said another three stores were expected to be sold to Head on February 20 and the deal also included the sale of all remaining Zavvi stock.

Zavvi – the former Virgin Megastore chain – went into administration on Christmas Eve after it was crippled by the collapse of Woolworths’ Entertainment UK wholesaling division.

It was the country’s largest independent entertainment retailer, with 114 stores in the UK and 11 in Ireland and more than 2,300 full-time staff.

The stores set to close include its London Oxford Street branch, which employs 140 people. Zavvi’s flagship Piccadilly store, where 110 people worked, was closed last month.

Bristol’s Cabot Circus outlet, which employs 30 staff, Milton Keynes, where 35 people work, and the Manchester Trafford Centre, employing 24 people, are also among the closures.

Tom Jack, joint administrator of Zavvi UK, said the sale of up to 13 stores was a “fantastic result for the employees and customers of the stores concerned”.

He said the deal with Head – a business jointly led by former Zavvi chief executive Simon Douglas – would ensure the transfer of a total of 249 jobs, assuming the final three stores were also sold.

http://uk.news.yahoo.com, February 18, 2009

As more companies fall into insolvency we are seeing the rise of the pre-pack administration sale.

Pre-pack arrangements involve agreeing the sale of a business before entering it into administration. This allows the insolvency practitioner to effect a quick sale and give the best deal to creditors, and enables the buyer to wipe off certain debts and ditch unprofitable parts while the rest of the business continues to trade.

But where does this leave TUPE? The Transfer of Undertakings (Protection of Employment) Regulations 2006 protect employees when a business changes hands by automatically transferring their contracts, and any associated liabilities, to the new company.

However, where insolvency proceedings are ‘non-terminable’ – the business continues as a going concern – employees’ contracts do transfer, but there is greater scope for the employer to vary contracts than in a non-insolvency transfer.

Where the insolvency proceedings are ‘terminable’, and the business effectively ceases trading, the employees’ contracts are automatically terminated. The employer can then set up new contracts with those it wants to keep. This means buyers of failing businesses can dictate the terms of the new contracts without risking automatic unfair dismissals.

Until recently, guidance from the Department for Business, Enterprise and Regulatory Reform (DBERR) suggested that administration proceedings were non-terminable, because they are usually started to rescue a business as a going concern, rather than liquidate it.

However, the recent EAT decision in Oakland v Wellswood (Yorkshire) Ltd offers more scope for buyers to cut wage bills and avoid unfair dismissal claims.

Intention matters

The Tribunal held that a former director of an insolvent company had not transferred to a new business as part of a pre-pack arrangement because the administration of the original company was instituted ‘with a view to liquidation’. This meant that under TUPE, his contract did not automatically transfer.

The Tribunal relied heavily on the insolvency practitioner’s report, which said that in its opinion the company could not be rescued and the deal that had been arranged offered the best result for creditors. It did not matter that the company had not, in the end, been liquidated. What mattered was that the insolvency practitioner instituted the administration with the intention of entering the company into liquidation.

Pre-pack administrations of the Oakland type are now likely to be even more attractive to buyers, who could insist on such arrangements to force a deal through even where previously it may have been done without instigating liquidation proceedings.

Buyers would then have the flexibility to dictate their own terms to employees and the insolvency practitioners could argue that, because the buyer would not have bought the company without the pre-pack arrangement, and no other buyer could be found, the insolvency proceedings were ‘instituted with a view to liquidation’.

But remember, whether the insolvency proceedings are terminable or not, employers still have a duty to consult and inform employee representatives.

Failure to do so can result in an award to each affected employee of up to 13 weeks uncapped pay, which as a joint and several liability to the buyer and the seller, can mean large payouts.

www.personneltoday.com, February 18, 2009

Only 8% of UK businesses trust their employees to work out of the office – despite 42% of workers believing they could do a better job remotely.

Research from BT Business and Nortel shows employers are reluctant to move staff away from their desks.

BT has 70,000 flexible workers and claims this has saved the firm £500 million in building costs and 100,000 tonnes of CO2.

John Wright, national chairman of the Federation of Small Businesses, said: “This boils down to a matter of trust. In the current climate, small firms need to be operating at full stretch. [The recent] bad weather demonstrated the need for British businesses to enable their employees to be productive wherever they are.”

www.hrmagazine.co.uk, February 18, 2009

The unusual volumes of snow have disrupted commuters, shut hundreds of businesses and caused traffic chaos in many parts of the UK.

So what are your rights if you couldn’t get into work or if you are an employer and your staff couldn’t make it in?

Richard Nicolle, partner in Denton Wilde Sapte’s employment practice looks at some of the issues.

Q. I couldn’t get to work because of the snow. Can my boss dock my pay?

Very few jobs – except perhaps some of those in industries such as construction – have a clause written into their contract saying that if employees cannot get in to work because of weather they lose a day’s pay.

Employees have statutory protection against an unauthorised deduction being made from their wages, so if the employer has no contractual right to deduct pay and if the employee does not consent, deducting pay would be potentially subject to legal challenge.

In any event, given the widespread disruption in many parts of the country and travel warnings not to make non-essential journeys, it is unlikely that many managers would take this step.

Q. My child’s school has closed because of the weather and there is nobody to look after them at such short notice. What are the implications at work?

This is an issue which is really going to come to the fore in the coming days.

Employees have the right to unpaid time off to deal with emergency situations regarding their dependents but this would not normally apply to a situation where the employee was required to look after their children as a result of not having any childcare arrangements.

However, it is arguable that a situation where school closures were announced in the morning would be seen as constituting an emergency situation and employees would be entitled to statutory protection for taking the day off.

Strictly, the day would be unpaid but not all employers would take this approach.

Many employers are likely to take the view that a day off in these circumstances should constitute holiday. It is important that employers adopt a consistent approach and as far as possible provide advanced warning to employees of the approach which will apply.

Q. I am a manager and am concerned that staff might be taking advantage of the weather to have a day or two away from work instead of trying to get in. Any advice?

be clear, consistent and transparent. Tell your staff what your policy is.

While the initial blizzard conditions may have made travel to work almost impossible, you may judge that the weather and transport links have improved sufficiently so that staff could get in to work.

Theoretically, an employer might contemplate disciplinary action if they felt somebody was able to work but had chosen not to.

But given this would involve complying with the minimum statutory disciplinary procedure and ensuring consistency between employees it is doubtful that many employers would want to devote time and resources to investigating the circumstances of individual workers.

Another option would be to deduct pay but this is likely to be seen as unduly draconian.

The most likely option is to require employees to take a day’s leave as part of their holiday entitlement. If you decide that any further days off will be deducted from an employees annual leave, you should communicate this to staff.

You may well find that once this has been sent out (including by phone or text message if people are away from the office) that people start finding ways and means to get in.

Alternatively, you could look at making arrangements for people to work from home but clearly in many jobs this just isn’t practical.

Q. Anything else for bosses to bear in mind?

Bear in mind there is a potential health and safety implication. If authorities are telling people to stay at home unless their journey is essential then, potentially, you may not want to put too much pressure on people to return to work.

Employers have a duty of care to their employees and a potential liability may exist if employees were pressurised into travelling by car or foot when conditions were dangerous.

Employers should therefore take a balanced approach between encouraging employees to make all reasonable efforts to get to work and forcing them into a situation where they feel they have no alternative but to travel to work or risk facing possible disciplinary action.

Q. I battled in to work – even though it was difficult. Many of my colleagues didn’t bother and I feel a bit aggrieved. Should I be entitled to get a day’s leave in lieu?

I’m afraid not. These sorts of situations can lead to resentment among workers – especially as those who are able to make it (or in some cases, those who choose to make it) may have to work especially hard to cover those who are absent.

But while there may not be any financial reward, the chances are your efforts won’t go unnoticed.

Clearly your colleagues are likely to have different circumstances than your own – so perhaps try to give them the benefit of the doubt rather than assume they have been skiving.

BBC News, February 3, 2009

BMW is cutting back production at its Mini factory in Oxford and 850 contract workers have been sacked with immediate effect.

What employment rights do they have, if any? And where can they, and workers in a similar position, go for help?

Richard Nicolle, a partner in the employment law practice of London law firm Denton Wilde Sapte, looks at the issue.

What rights do they have to complain, or to receive redundancy money?

The right to claim unfair dismissal and to receive a redundancy payment is limited to employees – and unfortunately for them, agency workers are probably not employees of BMW.

Prior to an Appeal Court decision last year, there was considerable uncertainty about when agency workers might turn into employees of the company where they were actually working.

However, that decision has significantly restricted such circumstances.

It will now be relatively rare for an employment tribunal to agree that the agency worker has acquired employee status with the end user of their services – in this case BMW.

This may apply even if the agency worker has spent several years working on behalf of a given client.

An agency worker would need strong evidence about the facts of his or her case to show that an employment contract with the end user had been created.

Can they complain to their employment agency?

It would be necessary to look at what their contract with the agency actually said, and in particular whether they are stated to be employees of the agency.

In the current economic climate, it is unlikely that their agency would be able to find alternative work.

If they are employees, they would have the right to a redundancy payment - subject to having two or more years’ continuous employment – and to claim unfair dismissal if the agency had not followed a fair redundancy procedure.

In view of the numbers of agency personnel being dismissed, this may mean the agency is obliged to consult formally with employee representatives.

However, it is possible that the workers may in fact be described as being self-employed.

Whilst this may not reflect the reality of their working relationship, it would still be a big hurdle to showing they were really employees of the agency.

And they would have to show that they were its employees, before being able to pursue any claims for unfair dismissal and a redundancy payment.

Why do employers use agency or contractual staff for a long time?

Sometimes agency personnel are used to cover a short-term need for additional staff.

However, frequently agency personnel are retained for relatively long periods and the principal reasons for this are to reduce head count and costs and to increase flexibility.

Sometimes the agency company may also take on responsibility for PAYE and compliance with immigration legislation etc which would reduce the administrative burden on the end user.

Some contract workers have been there for several years – are they not really employees of BMW?

As indicated above, the recent Appeal Court decision means that it is unlikely that the agency workers will be deemed to be employees of BMW.

That may seem unfair when the agency personnel have worked for BMW for relatively long periods.

For example, one individual is quoted as saying that he had worked for BMW continuously for four years.

Because of this unfairness trade unions have been pressing the government for additional protection for agency workers.

However, this has been a significant area of dispute between business and trade unions.

Would they be wasting their time going to an employment tribunal?

Not necessarily. Depending on the contracts between agency workers and their agency, and between their agency and BMW, there may be scope for individuals to argue they had become employees of the car firm.

Nevertheless, this would be very much the exception rather than the norm.

It would involve the worker identifying specific circumstances of the working arrangements to justify such a conclusion.

And simply having worked for BMW for long time would not be a sufficiently strong reason on its own.

Where can they go for help and advice?

The agency workers will almost certainly be non-unionised.

Therefore, if they wish to seek advice, they should either go to a local solicitor specialising in employment law or the Citizens Advice Bureau.

Their starting point should be to seek clarification from their agency as to what their status is and what compensatory payments they will receive.

BBC News, February 16, 2009

More than six out of 10 employees (62%) think their employer is placing less emphasis on health and safety as a result of the recession.

The National Accident Helpline reports only 38% think their employer remains as committed to health and safety as ever.

These findings come just days after the Health and Safety Executive (HSE) found 34 million days every year are lost due to injuries or illnesses caused by work.

John Campbell, legal director at the National Accident Helpline, said: “Investing time and money to make your workplace as safe as possible may seem less important due to a recession, but these figures show there is a financial incentive to do so.

“Cutting corners on health and safety is a false economy as there will be costs to the business through lost man hours and sick pay. This could cost the business more in the long run.”

www.hrmagazine.co.uk, February 18, 2009

Britain has taken in about four times as many workers from Europe as there are Britons working in the EU, a report has revealed.

Figures likely to reignite the row over PM’s claim of ‘British jobs for British workers’.

Analysis of official figures by the Migrationwatch think tank found there were 1,172,000 people born in Europe working in the UK in the last three months of last year.

At the same time, around 286,000 British-born workers had left the UK to take jobs on the continent.
The figures are likely to reignite the debate over Prime Minister Gordon Brown’s claim of “British jobs for British workers”.

During the dispute at Lindsey Oil Refinery in North Lincolnshire over migrant workers coming to Britain, ministers said there were 47,000 UK workers posted in Europe – and only 15,000 workers from Europe posted in this country.

But Migrationwatch said the figure only covered workers included in the EU Posted Workers Directive.

Chairman Sir Andrew Green said: “The Government have been emphasising that the number of British workers operating under the “Posted Workers Directive” is three times the number of European workers in Britain under the same regulation.

“However, if all workers are considered the result is reversed. Our paper sets the record straight.”

The figures, taken from the Labour Force Survey, showed there were 482,000 workers born in Eastern Europe employed in Britain from September to December last year – a fall of 6%.

In total there were 3,819,000 foreign born workers in Britain, meaning 70% of foreigners working in the UK are from outside the EU, the report said.

Sir Andrew added: “The really big issue remains the very large numbers coming to the UK from outside the EU… at a time when the pressure on jobs here is as intense as it has been for many years.”

The breakdown of British-born workers employed in Europe showed 65,300 worked in Germany and 36,100 in France. There were 41,800 in Spain and 28,200 in Holland.

Sky News, February 18, 2009