Leading local law firm Tinsdills Solicitors have once again demonstrated their support to the local community by donating hundreds of superfluous IT equipment to local charity, Community Recycling Consortium – Community Interest Company (CRCCIC). Not only preventing waste heading to landfill, but giving opportunity for employment, training and proceeds to people with mental health issues or physical disabilities in Staffordshire.
Earlier this year, much of the company’s IT equipment was upgraded to accommodate new technology driven working practises, making 94 Windows base unit terminals, keyboards, 18 computer screens plus peripherals and associated cables, surplus to requirement. Keen that their ‘waste’ didn’t go to waste, Tinsdills’ IT Services Officer, Nik Lawton put his mind to finding a value-added recycling solution.
All the redundant IT equipment was donated to local charity CRCCIC, who recycles and refurbishes IT equipment to fund training and employment for people with mental health issues or physical disabilities. Based in Fenton, Stoke-on-Trent the charity collected the equipment, took it apart to recycle and sold components such as motherboards, memory, power units, ram and metals. They also provided fully GDPR compliant certification of the proper destruction of the Hard Drives.
All revenue is reinvested to the Community Interest Company which provides opportunities, confidence, training and employment for those most vulnerable in society.
IT Services Officer, Nik Lawton comments, “Knowing that we needed to be conscious of minimising our impact on the planet when parting with our spare equipment, we started to evaluate IT recycling options. CRCCIC stood out and we were very impressed with their community ethos. The equipment was recycled free of charge, in a secure, legal, environmentally friendly and ethical way. Not only did CRCCIC provide a great IT recycling service, they provided us with added feel-good factor, knowing we were supporting such a great initiative in our local community. We would strongly urge others to donate their redundant IT equipment and put it to good use, we know the CRCCIC will certainly value the contribution.”
CRCCIC coordinator, Steve added, “We have supported 91 local people with various mental health issues with work experience and apprenticeships, over the last 7 years. 81 of these have moved to adult education or sustainable employment. To provide sufficient materials for our staff to work, we require around 1500 computers monthly, so we are grateful to Tinsdills and companies like them, for their ongoing donations and support.”
So, football didn’t quite make it home on Sunday night after stalling on the home straight, much to the disappointment of any England fan. As is often said of England, it is the hope that gets you in the end, but it was a commendable, history-making effort by a young, talented and thoroughly likeable group of footballers, and a group that may very well go one better in tournaments to come.
Sadly though, it was soon reported that following the penalty shoot-out defeat at the hands (or more precisely, feet) of Italy, some so called ‘fans’ took to social media to racially abuse the England players who had missed their penalties in the shoot-out.
If you are an employer and one of the offending individuals was one of your employees you would no doubt be appalled and, if you are identifiable as that individual’s employer, the potential damage to your reputation as a result of that connection is considerable. This raises the question – can an employer take disciplinary action against an employee for comments made outside of working hours and on a personal social media account?
In one particular case the offending individual’s employer was identifiable from social media accounts linked to the social media account that had posted the racist comments, and that employer has suspended the employee pending a disciplinary investigation. The same happened when the abhorrent harassment of the government’s chief medical adviser, Chris Whitty, was shared on social media a couple of weeks ago, with that employee ultimately being dismissed by his employer.
Whether disciplinary action is appropriate will always depend on the particular facts and circumstances of each incident but, in short, yes – it may be appropriate to take disciplinary action against an employee who has made offensive comments on social media, even if it was done outside of work hours and from a personal account.
Factors to take into consideration when deciding if disciplinary action is appropriate in such circumstances, and ultimately whether a dismissal might be a fair outcome under employment law, are:
whether the employer has a social-media policy, and what that says about an employee’s use of social media
the nature and seriousness of the alleged misuse
actual or potential damage done to customer relationships or the reputation of the employer, and the impact of the employee’s conduct on the employer’s business
any previous warnings for similar misconduct in the past
the reasonableness of the employer’s disapproval of the employee’s behaviour
the employee’s position and role
whether the name of the employer or names of customers or colleagues are mentioned in the post, the public account details, or linked identifiable accounts
If an employer becomes aware of social media posts by an employee that it considers could warrant disciplinary action, then it is just as important that a full, fair and proper disciplinary investigation and procedure is undertaken as it would be for any other incident of misconduct that may occur in the workplace, in order to protect the employer as far as possible from claims for unfair dismissal in the event that an employee is dismissed at the conclusion of those proceedings.
If you would like to speak to one of our expert employment law solicitors in relation to the matters raised in this article, please get in touch on 01782 262031
A recent High Court case, concerning, amongst other things, whether or not the supplier’s standard terms and conditions were properly incorporated into the contract between the parties, has demonstrated the need for careful drafting of standard terms and conditions.
Phoenix Interior Design Ltd v Henley Homes plc [2021] EWHC 1573 (QB) was a lengthy court case involving a number of complex legal issues, including in respect of the reasonableness of an exclusion from the warranty for goods and services supplied.
The claimant – an interior designer – sought to bring a claim against unpaid invoices from the defendant for monies owed in connection with goods supplied and services rendered in relation to the refurbishment of (what the defendant claimed was) a five-star hotel in the Scottish Highlands.
The claimant asserted that the balance outstanding from the defendant comprised one half of the agreed price under the contract between them. However, the defendant counterclaimed that the goods supplied were defective. The defendant further argued that, as the last half of the price was payable on completion and (in their opinion) performance was defective, completion had never occurred and the remaining half of the price had never fallen due for payment.
In relation to the standard terms and conditions, the initial question arising was whether the claimant’s standard terms and conditions had been incorporated into the contract between the parties. Here the court referred to an earlier (2006) case for the test for incorporation with the question as to whether terms and conditions had been properly incorporated into the contract between the parties depending “on whether that which each party says and does is such as to lead a reasonable person in their position to believe that those terms were to govern their legal relations’. The court also considered whether the claimant, in issuing its standard terms and conditions, had done all that was reasonably sufficient to give the customer (the defendant) notice of those conditions.
Having been handed to, and later emailed to, the defendant, the court concluded that the claimant’s terms and conditions had been incorporated into the contract. The High Court further held that the claimant was able to recover almost all of the remaining amount of the contract price due to it, due to the successful arguments in respect of the reasonableness of its terms and conditions and the factual circumstances around the claim itself. However, this case serves as a cautionary tale to suppliers of goods and services to ensure that they provide a copy of their terms and conditions before the contract is formed and not merely after the fact – for example, on the back of the invoice.
If you require advice on your business’ standard terms and conditions and the proper incorporation of the same, or you wish to have your terms and conditions reviewed by one of our specialist corporate and commercial law solicitors, contact us by telephone on 01782 652392 or fill out our contact form here https://tinsdills.co.uk/business/company-commercial/
Following a consultation conducted by the Department of Health and Social Care, the government has announced that vaccinations to protect against coronavirus (COVID-19) are to be made compulsory for anyone working in a CQC-registered care home in England providing nursing or personal care. Further consultation is taking place with regards to making vaccination mandatory for NHS workers too.
This announcement has sparked a debate as to the autonomy and personal freedom of workers and the duty of employers to ensure the safety of their staff. The British Medical Association, which represents doctors and medical students in the UK, has warned that making vaccination for care workers mandatory would be “a blunt instrument that carries its own risks” but this does not detract from the responsibility employers have to ensure their staff’s health and safety.
This is not the first time that mandatory vaccination has been introduced in the healthcare sector though. Certain medical professionals are required to be vaccinated against Hepatitis B in order to carry out their roles.
It may be that similar procedures are put in place in respect of the coronavirus vaccination programme and workers who refuse to be vaccinated may need to be prepared to be redeployed or they could be dismissed from their employment.
While it is to become compulsory for healthcare workers to be vaccinated, mandatory vaccination is not expected to be introduced under law in other sectors. However, many employers are considering introducing a mandatory vaccination policy of their own. Employers have a duty to ensure the health, safety and welfare (in so far as is reasonably practicable) of the people working for them, and this duty of care extends to those who physically interact with the business too.
Introducing any such policy should be done with great care, as employers need to be mindful that a blanket approach could indirectly discriminate against certain groups with one or more ‘protected characteristics’ (which include disability, religion or belief and age). Assessments will need to be carried out to determine whether a mandatory vaccination programme is a proportionate method of addressing the risk posed to staff and those who physically interact with them, or whether other less intrusive options are available. Reasons why mandatory vaccination may be considered a reasonable management instruction might include a difficulty to employ other safety measures (such as social distancing) or a particularly high level of risk to individuals interacting with the business (as is the case with healthcare).
Employers having a ‘one size fits all’ approach to coronavirus vaccination for their workers, which results in any worker being treated less favourably as a result of not being vaccinated, potentially puts the employer at risk of discrimination claims unless the organisation can justify the approach taken as being a proportionate means of achieving a legitimate aim.
Whether mandatory vaccination is proportionate will depend on factors such as:
how the policy operates in practice;
the impact on individual workers; and
whether the risk to health and safety can be reduced in less intrusive ways.
If implementation of a mandatory coronavirus vaccination policy is not handled with care by an employer there is a real risk that employees could ‘vote with their feet’ when an employer seeks to enforce that policy, and when employees leave due to the actions of their employers, the employer could face claims for constructive dismissal and/or discrimination.
If you would like to know more about implementing a mandatory vaccination policy while protecting your business (as far as possible) from claims of discrimination or constructive dismissal, speak to one of our specialist employment solicitors today on 01782 262031 or fill out an online enquiry form here.
Changes have today come into force to extend the limited suspension of provisions and other temporary provisions which were introduced last year under the Corporate Insolvency and Governance Act 2020 (CIGA 2020). Under the new regulations, provisions have been made to:
extend the temporary suspension in the wrongful trading provisions in section 214 Insolvency Act 1986 (wrongful trading), and section 246ZB (wrongful trading: administration), by extending the relevant period until 30 June 2021;
extend the relevant period of various temporary provisions under CIGA 2020
the exclusion for small suppliers from the prohibition on clauses triggering termination of contracts due to insolvency of the customer, to 30 June 2021;
the relaxation of entry requirements for companies into the Part A1 moratorium procedure and prescribed rules contained in CIGA 2020; and
the restriction on statutory demands and winding-up petitions.
For more information on the changes under CIGA 2020 and how these affect your business, contact one of our specialist commercial law solicitors on 01782 262031.
Want to know more about CIGA 2020 and the changes to insolvency provisions?
Is my personal guarantee still enforceable if my directorship was terminated due to the company’s liquidation?
A recent High Court decision in Nirro Holdings SA v Patrick O’Brien [2021] EWHC 279 (Ch) considered whether the term of a personal guarantee, given by a director over the debts of a company, were enforceable in circumstances where the director’s office had been terminated as a result of the liquidation of the company.
In Nirro, Mr O’Brien and his wife were directors and (originally) 100% shareholders in a company specialising in audio visual and conferencing facilities. In 2014, the company secured an agreement to supply video conferencing facilities to Google’s offices in Russia. It was required to have a joint venture partner for the deal and so entered into an agreement with a subsidiary of Nirro.
Nirro made a series of loans to the company, for which Mr O’Brien provided personal guarantees (as if often required to provide security to lenders). The company then failed to repay the loans and was placed into administration in 2016 and, in 2017, was dissolved and removed from the companies’ register.
One clause in the guarantee given by Mr O’Brien, required that he irrevocably and unconditionally guarantee the proper and punctual performance of the guaranteed obligations of his company. He further guaranteed that he would also remain a member of the board and a shareholder of the company. A later clause in the guarantee provided that, on or after a “Significant Event”, the guarantor (Mr O’Brien) would fully perform the guaranteed obligations and be liable to Nirro for losses, costs and expenses resulting from the breach. A “Significant Event” was defined to include “the guarantor resigning or otherwise ceasing to be a member of the board of directors of the Company for any reason other than ill-health, death or by mutual agreement”.
Nirro claimed that the company owed it in excess of £1.9m under the terms of the loans and that Mr O’Brien was obliged to pay that amount under the terms of the guarantee, arguing that as Mr O’Brien had ceased to be a member of the board of directors (because the company had been wound up).
Mr O’Brien, meanwhile, denied that his ceasing to be a member gave rise to a ‘Significant Event’. The case came down to a matter of contractual interpretation, as he argued that the events anticipated by the agreement giving rise to his liability included his resigning (because he would the no longer be contributing to the success of the company), rather than his being removed upon the company’s liquidation. References to the “company” implied an existing entity and so, as dissolution was not specifically referred to as a “Significant Event”, O’Brien argues it was not a triggering event.
So what did the courts decide and does it mean a guarantee is still enforceable if you cease to be a director because your company is in liquidation?
Deciding the matter in Nirro’s favour, the judge concluded that a “Significant Event” was defined to include Mr O’Brien’s ceasing to be a director in any circumstances, including the liquidation of his company. It therefore followed that he was liable to Nirro in respect of the debts owed to it.
Whilst every guarantee will be limited to its circumstances and the specific wording used it both the guarantee and any loan agreement to which it relates (as well as any earlier agreements between the parties which have been superseded, as was the case in Nirro), this recent case highlights the importance of seeking independent advice before entering into a personal guarantee.
Personal guarantees are becoming increasingly commonplace in the current commercial market and so, if you require advice on a personal guarantee (whether new or existing), why not speak to one of our specialist corporate and commercial law solicitors on 01782 262031.
As employers, domestic abuse is not our business, or is it?
“There is a part for everyone to play, together we can signal to survivors and victims, that they are not alone” (Victoria Atkins Minister for Safeguarding)
In the light of the recent lockdowns due to the coronavirus pandemic, calls to domestic abuse services increased by up to 80%. A new government report published in January 2021 entitled Workplace support for victims of domestic abusehttps://www.gov.uk/government/publications/workplace-support-for-victims-of-domestic-abuse found that very few employers were aware of the signs of domestic abuse let alone have a policy in place to support survivors.
So, when it comes to domestic abuse, where do employers come in? It could be that in many circumstances the only other people outside the home that survivors have contact with and talk to are their work colleagues. These colleagues can be invaluable in helping to provide a link to support for the survivors of domestic abuse and it is likely to be beneficial to the work environment if survivors are made to feel they can talk to colleagues openly.
In January 2021 Business Minister, Paul Scully wrote an open letter to all UK employers in which, when referring to the assistance employers can give, he indicated that it doesn’t mean making employers into counsellors or healthcare workers but the actions [he] outlined can be as simple as providing a safe space to talk which in turn can have a life-changing impact on survivors.
There are over two million victims of domestic abuse a year in the UK most, but certainly not all, of whom are women. The impacts on victims and their children can be significant and wide ranging. Victims may suffer long-lasting health problems but also crippling financial difficulties.
There is also a considerable cost to the economy due to lost output as a result of time off work and reduced productivity as a consequence of domestic abuse.
Lost productivity and absence linked to domestic abuse can mean significant losses for both individuals and employers. Research puts the losses to businesses at around £316m each year as a result of work absences related to domestic abuse.
The coronavirus (COVID-19) pandemic has brought domestic abuse to the forefront, seeing increased coverage in the media largely due to the fact that many people are forced to work from home. It is notable that the Government has launched the hashtag #YouAreNotAlone which gives guidance to employers as to how they can best reassure employees suffering domestic abuse and confirming the household isolation instructions do not apply to them if they need to leave the home to escape domestic abuse.
Although it is recognised that there is no ‘one-size fits all’ approach to responding to the need for support for victims and survivors, there are some main characteristics a supportive workplace has
recognition of the problem, belief in the victim’s story and ensuring they consent to any further steps;
employers signposting to specialist services and suggesting alternative options for the individual to decide between; and
a clear and visible policy which sets out the support offer and approach for dealing with disclosures and issues related to domestic abuse
Best practice for employers
working closely with trade unions (if applicable) and/or organisations specialising in supporting victims of domestic abuse in shaping a policy and approach;
having a comprehensive domestic abuse policy which sets out signs of domestic abuse, roles and responsibilities as well as what the employer can practically offer in terms of financial assistance, flexibility and paid leave;
offering practical support to employees for example paying salaries into separate accounts, additional financial assistance, access to counselling or other health related services, access to time and space within work to make calls and other arrangements as well as flexibility and time out of work;
taking steps to ensure safety in and around the place of work, providing a safe car park space or accompanying the employees to/from public transport, ensuring the details of employee’s whereabouts are not accessible to others (particularly the perpetrator); and
having an appropriate approach to perpetrators or other employees showing abusive behaviours
The company’s policy on domestic abuse should be embedded in the wider organisation:
a specific domestic abuse policy is more effective when it is embedded into the wider organisational frameworks and cultures so that it is cross referenced in HR policies and linked to approaches to diversity and inclusion and health and wellbeing
the policy should be followed through with appropriate signposting – e.g. putting up posters and leaflets/guidance around the workplace and on the internal intranet showing a list of local service providers or specialist apps
employers should consider becoming or appointing Domestic Abuse champions who raise visibility of the issue and are trained to spot the signs of abuse and how to respond and refer individuals on
senior management and leadership raising the issue of domestic abuse can also play a key role in changing workplace culture and breaking down barriers
There are numerous areas of assistance available to support the employer in developing their response to domestic abuse and a few are mentioned below:
Business in the Community COVID-19 Domestic Abuse Toolkit for Employers
If you require any help or advice on a Domestic Abuse policy or any other areas of employment law please contact us on 01782 262031or email lawyers@tinsdills.co.uk
A recent High Court case has shed some light on the ‘fair value’ of shares held by a minority shareholder, which some would say may not have been that fair.
It is common practice for companies with more than one shareholder (particularly those with employee or minority shareholders) to include provisions requiring those shareholders to transfer their shares back to the company or to other (usually, majority) shareholders on the occurrence of certain events. Whenever a transfer takes place, the price of the shares being transferred should be considered and the articles of association (and shareholders’ agreement, if there is one) will usually determine whether that price is: nil, par value, fair value or something else. Nil or par value are easy to determine but the company’s articles of association will usually include specific wording as to when fair value is applied and how it is calculated. This is where things can get tricky.
In Re Euro Accessories Ltd Monaghan v Gilsenan and another [2021] EWHC 47 (Ch), fair value was discussed and, in particular, whether a minority shareholder was entitled to have his shares valued at an amount calculated pro rata to the value of the entire issued share capital of the company or whether the value should be diminished due to the ‘minority’ nature of his shareholding.
In 2003, the petitioner had joined the company as a sales representative. In February 2008, another shareholder voluntarily transferred 24.99% of the then issued share capital of the company to the petitioner. Some time around January 2010, the relationship between the parties broke down and, on 31 January, the petitioner resigned from the company, triggering a compulsory transfer of his shares in accordance with the company’s articles of association.
The minority shareholder argued that the meaning of the expression ‘fair value’ was akin to the definition found in the 2013 edition of the International Valuation Standards: “the estimated price for the transfer of an asset or liability between identified knowledgeable and willing parties that reflects the respective interests of those parties”. The majority shareholder, however, contended that ‘fair value’ meant the value of the shares on a sale between a willing buyer and a willing seller and that, as the shares represented a minority holding, the price should be discounted to reflect that fact.
The High Court rejected the minority shareholder’s argument that ‘fair value’ (within the context of the company’s articles of association) meant that he was entitled to be paid an amount for his 24.99% minority shareholding which was calculated pro rata to the value of the entire issued share capital of the company. Instead, the Court held that it was a clear statement of general principle that, unless there were indications to the contrary (for example, in the company’s articles of association or shareholders’ agreement) then the general principle was that a ‘fair value’ had to be given to what was actually being compulsorily transferred (in this case, a minority shareholding with less control over the company than a majority or equal shareholding, inherently making those shares less valuable).
If you would like us to review your company’s articles of association or to review or put in place a shareholders’ agreement with considered fair value provisions, contact us on 01782 262031.
The transitional arrangements under the UK-EU Withdrawal Agreement deferred many of Brexit’s legal effects on UK law by requiring the UK to continue adhering to EU law from exit day until 11pm on 31 December 2020 (known as IP completion day).
With the prospects of a no-deal Brexit looking increasingly likely and the Government telling us to prepare for the same, every business should be considering how the market will look for them on 1 January 2021.
deciding whether a standard is appropriate for designation; and
referencing designated standards.
It is likely that new and updated guidance will be issued as the transition period progresses, so businesses are advised to monitor the Government’s designated transition website: www.gov.uk/transition
If you would like to discuss how Brexit will affect your commercial contracts after IP completion day, call us on 01782 262031 to speak to one of our specialist corporate and commercial solicitors.
Tinsdills Solicitors’ Managing Director, Tim Cogan triples fundraising target for charity after completing a staggering 192 mile Coast to Coast venture, and raising £1525 for Donna Louise Hospice.
Over 14 consecutive days, Tim battled across hills, mountains and precarious terrains in a bid to raise funds for the popular local children’s support facility.
The Donna Louise Hospice provides a lifeline to hundreds of families across the area and as Staffordshire’s only dedicated hospice for children and young people, are able provide specialist care and support services for children with life-shortening conditions, due to illness or injury.
After setting off from the Irish Sea at St Bees Head, Tim navigated through the Lake District and onto the Yorkshire Dales, before reaching the North York Moors and finally completing at the North Sea Shoreline at Robin Hood’s Bay.
Commenting on this feat, Tim said: “It was a fantastic experience, but not without challenges. Some of the climbs were very difficult and required a good amount of skill to traverse, especially during some of the more testing weather conditions. The support everyone showed through donations and well wishes really helped to spur me on through the tougher days.
“I am both proud and overwhelmed by this achievement; the Coast to Coast Challenge has always been an aspiration of mine to complete, and being able to support a local charity simultaneously makes it even more meaningful.”
Unfortunately, during the peak of the pandemic, local charities struggled to continue to provide the exceptional care that they strive for. After being forced to cancel all major fundraising events due to lockdown restrictions charities needed to rely solely on individual donations and government support.
Tim added, “I made the decision to take on the Coast to Coast Walk in aid of the Donna Louise Hospice, simply hoping to raise money and awareness through people sharing my challenge with friends and across social media; knowing that any money raised would contribute to the Donna Louise and help them to continue to deliver their services to local families.
“I started with a fundraising target of £500, but I never imagined I would hit that target before even setting off! The fundraising continued to spiral from there, now we have more than tripled my original target which is unbelievable and donations are still coming in.”
The Donna Louise commented, following Tim’s walk, “We are very thankful to Tim for taking on the Coast to Coast Challenge in support of the Donna Louise, it’s an absolutely amazing amount of money raised and we are so grateful for his support, and to everyone who supported Tim throughout this accomplishment.” If you would like to support the Donna Louise, donations can still be made via Tim Cogan’s Just Giving page: https://www.justgiving.com/fundraising/tinsdills-solicitors2020
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