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A review commissioned by the Government has decided that employers who prioritise job applicants with top degrees from top universities are potentially discriminating against those with degrees from other universities. It has been suggested that three quarters of employers require good grades as a minimum but that this requirement goes against an employer’s duty to hire a diverse workforce.

This is all very well but given competition for jobs is at an all time high one has to ask whether it is unreasonable for employers to want to recruit the best person for the role available. It seems logical that the best person should be recruited for a role. However it is not always the case that the best person is necessarily the one with the best grades. It has long been standard practice to require a certain level of grades to apply for certain jobs but due to the current economic condition such a level has had to be raised to try and help limit the number of applications.

Of course a person may excel academically but have no social skills and so not be able to work well in the workplace. Thus going against the idea that those with the best grades are the ones best for the job Employers would do well to recognise this and look beyond academic grades.

It must also not be overlooked that there are able candidates from universities which are not able to compete with the elite. They may have achieved a top mark from a lower tier university but the stigma employers attach to their university goes against them. It is perhaps this which employers should be warned against – do not make assumptions based on someone’s university as you may miss out on the person best for the job. Not only this but it leaves employers open to a real risk of discrimination.

A person could bring a claim of indirect race discrimination if employers are only recruiting those from elite universities. If an employer has a policy not to interview applicants from certain universities then they may be indirectly discriminating on the basis of their race. Those who do not have the opportunity to attend elitist universities because of their race are clearly disadvantaged by a policy only to consider applicants from such universities. However, it would be open to the employer to seek to objectively justify such a policy. The decision on whether to employ someone should not be influenced by irrelevant factors.

An individual may have a good reason for not attending a top university or given the amount now being charged to attend university, the cost each university charges may have made the decision for them. The elite universities will be charging the maximum amount possible and so it is quite possible the normal Joe Blogs will not be able to afford this or wish to incur the debt. Likewise there will be individuals who failed to achieve top grades for various reasons but are still just as able to do the job very well. Employers should recognise this and be willing to make concessions and take this into consideration.

For further information please contact Pitmans’ Employment Team.

Mark Symons
Partner, Head of Employment
T: 0118 957 0340
E: msymons@pitmans.com

Richard Devall
Partner
T: 0118 957 0602
E: rdevall@pitmans.com

According to a recent study carried out at a University in America employers’ may look favourably on an individual based on their social network page. The study showed that an employer is able to tell how good an individual will be just from looking at their Facebook page. Pictures showing drunken nights out, travels etc suggests that the individual is personable and social, an attractive quality for employers. However as positive as the results suggests, this is clearly only one side of the story.

A Facebook page may actually discourage some employers from recruiting an individual and there has in fact been evidence which supports this argument and understandably so. If an individual has made comments about their previous employer then this is a cause for concern. Likewise if they have been making derogatory comments, voicing extreme opinions or there are compromising pictures employers may not want to be associated with such an individual. Social media carries risk for an employer as comments and pictures can go viral. An employer will not want to risk hiring someone who freely shares all information and pictures no matter how damning or personal they may be as their actions could end up damaging the employer’s reputation.

Some employers do vet potential employee’s Facebook pages so individuals would be wise to keep their profiles clean and professional, thus maintaining their credibility. Although you can restrict who views your profile privacy only extends so far.  An employer does not have to seek an individual’s permission before checking profiles.

Likewise an employer also needs to be careful, if they choose to reject an individual for a job on the basis of what they have seen on a Facebook page and the individual in question discovers this then the employer is potentially at risk of a discrimination claim. You should make it clear from the outset what the job process involves and what you do. Any vetting of people’s pages should be proportionate and only carried out when necessary. An employer must be fair to all applicants; some people won’t have a Facebook page and those that do, if you view their page, view them with an open mind. Broadly speaking an employer should not make a judgement based on what they see, remember this is an individual’s right to express themselves. It is not necessarily an indication of how they will be in their professional life.

Viewing social media pages may be a useful tool but one should take care not to rely on what these pages contain. Yes a profile may make someone more attractive to employers but there will be cases when this is not so. Remember there are two sides to every story.

For further information on this article, please contact Pitmans’ Employment Team.

Mark Symons
Partner, Head of Employment
T: 0118 957 0340
E: msymons@pitmans.com

Pitmans were delighted to enter Reading’s Annual Charity Pancake Race 2012 organised by Reading UK CIC in the hope of bettering last year’s position of fourth place. The race took part on a chilly Tuesday 21st February on Broad Street in aid of the Dame Kelly Holmes Legacy Trust.

The Pitmans Pancake team comprised of solicitors Jamie Lynch and Matt Heyworth, and trainee solicitors, Andrew Souter and Alex Morgan.

Mayor of Reading Councillor Deborah Edwards led the procession of 24 Reading based businesses down Broad Street to the ‘race track’ surrounded by a large crowd of Pitmans supporters. Teams included Sainsbury’s, Rush Hairdressers, Greyfriars Church, Castle Vets, the Royal Berkshire Fire & Rescue Service, Reading Borough Council, Specsavers, Malmaison and The Oracle.

After a long and tense wait, Pitmans stepped up to the race line hoping to toss their way to victory against John Lewis. Unfortunately it seemed John Lewis, who supplied the pancakes, had been practising their pancake flipping skills and just beat the Pitmans team, ‘battering’ them out of the competition.

Solicitors Jamie Lynch and Matt Heyworth, said “We had high hopes of success this year in the Annual Charity Pancake Race following the team making the semi-finals last year. However victory was not to be as we showed a total disregard for the combination of high winds and over zealous pancake tossing. Despite the loss we are looking forward to return next year, following the appointment of a new coach, as the event always proves to be a fantastic charity fundraiser enjoyed by all.”

The eventual winners, Specsavers, were presented with medals and bouquets by Reading’s Mayor and Toby Gabbett, a former Olympic rower and representative of the Dame Kelly Holmes Legacy Trust.

Click here to view more photos from the Pancake Race.

From left to right: Matt Heyworth, Jamie Lynch, Andrew Souter, Alex Morgan

Congratulations to Pitmans trainee solicitor, Sarah Lake, who has had her Masters Dissertation published.

An Empirical Study of the UNIDROIT Principles – International and British Responses

By Sarah Lake

The UNIDROIT Principles of International Commercial Contracts (hereinafter: PICC) is intriguing. It aims to overcome the difficulties that national boundaries pose to international commercial contracts, but also, as a non-binding instrument, it challenges traditional methods of harmonisation that are frequently fragmentary and inadequate. Now that the third version of the PICC has been published, the academic attention that the PICC has received is as relevant as ever.

As is the case for many modern legal instruments, this attention has focused on the PICC’s impact. The key to successfully influencing the international arena is recognition: “[I]f nobody knows that it is there, the law has little capacity to shape behaviour.” The ICC Uniform Customs and Practice for Documentary Credits (UCP) is a particularly noteworthy illustration of a persuasive instrument at its best, which by catching the attention of the banks, is now involved in most documentary credits globally. The PICC’s Preamble elects a similar tactic, attempting to seize the interest of key groups, namely legislators, judiciary, academics and the commercial world.

Click here to view Sarah’s dissertation.

From 19th March 2012, all money claims issued in the County Court under the Civil Procedure Rules (Part 7) will be issued in the Northampton County Court. 

The National Civil Business Centre based in Northampton will act as an administrative office and will manage the preliminary stages of actions commenced in the County Court including issuing Claim Forms, applying for Judgment and filing of acknowledgement of service and defences.

This change is being accompanied by increased automation and whilst this might ultimately speed up court process and turnaround volumes and times, we would like to warn all our clients in advance about potential delays in the first weeks of the new scheme.

Please note that there will be an opportunity to have an action transferred out of the Northampton County Court to a more local/convenient County Court at the allocation stage where the Defendant is not an individual.  As is standard practice now, where the Defendant is an individual, the action will be automatically transferred to the Defendant’s home Court. 

For more information, please contact Pitmans’ Debt Recovery team.

Donna Goddard
Director, Debt Recovery
T: 0118 957 0507
E: dgoddard@pitamns.com

Thanks to the recent revelation that five directors at Lloyds Banking Group, including the former Chief Executive, will be asked to return a combined total of more than £1 million in bonuses, the topic of bankers’ remuneration is well and truly back on the media agenda.

So-called “payments for failure” made at the various financial institutions which have received enormous amounts of support from public funds have been the subject of much tabloid ire throughout the economic downturn.

The arguments in favour of facilitating “clawback” or reversal of bonus and share awards have had added weight since the FSA’s determination that remuneration structures in banks may have encouraged some employees to ignore long-term risks in favour of returning short-term gains which ensured that they earned their incentives.

Any company considering clawback will have to be very sure of their legal footing before attempting to force its employees to return shares acquired under employee share options (or other share incentive awards), or to pay over the proceeds of the sale of such shares, or to pay back cash bonuses. Notwithstanding the fact that such action could jeopardise the future incentive effect of share options and bonus schemes and, more seriously, might undermine the entire employment relationship, effective clawback may be difficult for three key reasons:

Firstly, unless the terms of a share award or bonus clearly specify that shares or cash can be clawed back in certain circumstances, there will be almost no chance of an employer being able to recover shares, the proceeds of shares or bonus payments from employees.

Second, clawback might be prohibited as an unlawful penalty; a contractual term which obliges A to make a specified payment to B if A is in breach may not be upheld by the courts if the payment for breach is found to be a “penalty” clause.

Finally, a clawback provision in a share incentive or bonus scheme may be triggered on a breach by an employee (or former employee) of a restrictive covenant. If so, the clawback provision might be deemed to be an unenforceable restraint of trade.

Despite these difficulties, we consider that properly constructed clawback provisions can be successfully deployed in the right circumstances. For more information please contact:

Mark Symons
Partner, Employment
T: 0118 957 0340
E: msymons@pitmans.com

Richard Devall
Partner, Employment
T: 0118 957 0602
E: rdevall@pitmans.com

Award-winning law firm Pitmans LLP has acted on behalf of Class Telecommunications Limited on the acquisition of R.C.G. Global Networks Limited for an undisclosed consideration. The transaction was led by Pitmans’ Corporate Partner, Adam Dowdney, and assisted by Corporate Solicitor Carolyn Butler, Employment Solicitor Amanda Dorling and Commercial Property Director Bhaminee Sharma.

Class Telecommunications have been operating since 1989, offering a range of managed telephony solutions including fixed line, broadband & data services, mobile phones and telephone systems and support.

R.C.G. Global Networks provides business customers with telecommunication services, including the provision and rental of exchange lines, carrier pre-selection, broadband connections and associated services, and the supply and sale or rental of telecommunications equipment and materials.

Commenting on the transaction, Julian Miller, Managing Director of Class Telecommunications said “This is the first acquisition we have undertaken and I am very grateful to Adam and his team for leading us through the legal process which enabled us to complete on time and within budget. Their tenacity, professionalism and commitment gave me the reassurance that our interests were in safe hands and secured the result we wanted”.

Adam Dowdney, Pitmans’ Corporate Partner said “We were delighted to act for new client Class Telecommunications on this acquisition which is of considerable strategic importance to their development. As always, the deal required input from various departments which exemplifies our ability to provide a quick and commercial full-service offering. We are sure that this acquisition will prove to be of great importance to Class and look forward to working with Julian and his team again soon.”

Thanks to the media and public figures speaking out the awareness of cyberbullying is ever increasing. Due to the rise of the internet, the use of smart phones and the increasing popularity of social media sites such as Twitter and Facebook cyberbullying is widespread. It doesn’t just occur during work time or school time it can occur 24 hours a day, 7 days a week. Cyberbullying may be virtual but this does not mean it is not happening or that it should be ignored. 

Cyberbullying can take on many forms, through text messaging, phone calls, pictures and emails through to posts on social network sites and account hacking. This bullying is now becoming a form of serious harassment. The main problem with cyber bullying is that it is incredibly hard to monitor and prevent. Social media sites provide people with anonymity and so tracking down the culprits can be an impossible challenge. People can assume a fake profile or assume many identities.

Currently the law in place is reactive rather than proactive. Instead of providing people with steps they can take to protect themselves from cyberbullying the law instead only provides for compensation once the cyberbullying has taken place. Often people are unaware of their legal rights and what steps they can take.  People who are subject to cyberbullying should speak out and record everything, keep texts, take screenshots etc.

Cyberbullying can have a significant impact on a person’s mental and physical health, it can affect self esteem, confidence and mental health. It may be possible for someone to bring a personal injury claim against their bullies as a result of this.

The Workplace

Employers should take a clear stance on all types of bullying and make it clear it is not acceptable. It is standard practice to have anti-harassment and bullying policy in force.

If an employer fails to take action to stop bullying then there could be a breach of their implied duty of trust and confidence which could result in an employee bringing a claim. At present an employee cannot bring a claim for cyberbullying alone in the Employment Tribunal. It has to be brought along with discrimination or harassment, yet this is likely to go hand in hand with cyberbullying.

An employer may be vicariously liable for the actions of their employees. If an employee is cyberbullying their colleague then an employer may find themselves included as party to a legal claim. An employer is unlikely to be able to argue successfully they were not responsible because the bullying took place outside of work time especially if they were made aware and failed to take steps to reprimand the bully in question.

The Law

Cyberbullies are potentially breaching many laws with their actions, a summary of which is set out below:

Protection from Harassment Act 1997
A person is not allow to behave in such a way which will amount to harassment of another and which he knows or ought to know amounts to harassment. The individual can obtain an injunction against the person causing the harassment. It is also a criminal offence so a person can be guilty of harassment if they have harassed the person causing distress and harm on more than one separate occasion. By making it criminal the police can be involved and they can investigate the harassment and use their powers to identify the harasser if they are not known. It is also a separate offence if the person’s actions cause another to fear violence will be used against him on at least two different occasions.

Communications Act 2003
A person will be guilty if they send an offensive or grossly offensive message or an obscene indecent image through a public electronic communications network or cause such communications to be sent. Likewise someone will also be liable if they send a message which they know to be false and it is sent for the purpose of causing annoyance, inconvenience or anxiety. It is also an offence to improperly use a public electronic communications network.

Defamation Act 1996
If comments are damaging someone reputation, then they are potentially defaming them. Internet hosts should be notified about this to put them on notice and they should remove the allegedly defamatory material quickly. By putting them on notice they will lose the benefit of the innocent dissemination defence afforded to them if they fail to act.

Malicious Communications Act 1988
It is an offence to for one person to send to another any communication or article which coveys a threat, false information or an indecent or grossly offensive message and the result of such communications causes the recipient distress or anxiety. Communication covers hard form communication and also electronic communications.

The penalty for falling foul of the Communications Act and the Malicious Communications Act is imprisonment for up to six months, a fine or both.

What can you do?

If you are experiencing cyberbullying through social media sites such as Facebook and Twitter then such sites will have policies in place which mean you can report such incidents. Facebook and Twitter, for example, allow you to report abusive content along with fake profiles. As well as reporting such incidents you can block people from being able to contact you. The sites will often offer advice on what you should do if you are experiencing bullying, for example Facebook gives tips on what to do.

An individual should also review the privacy settings on their Facebook account to ensure it can only be viewed by certain people, for example your friends. Individuals should also be wary of how much information they detail about themselves. If personal information is revealed it could lead to someone being able to impersonate you. Be wary of accepting a stranger’s friend request as this could have undesirable consequences, as highlighted by Cher Lloyd.

If an individual is receiving abusive texts, pictures or phone calls then they can contact their mobile network operator to get a number barred. This means the person will no longer be able to communicate with the individual.  This may not stop the bullying entirely but by taking positive steps the bully will be stopped in their tracks to an extent.

People do not need to stand back and tolerate such behaviour; there are steps an individual can take against their bullies.

Schools

Despite the age restrictions imposed on social media sites, more and more children are having profiles online. Children are often the most vulnerable to cyberbullying and as highlighted in recent media stories, they are often reluctant to speak out and seek help which can have serious consequences. Children should be educated in schools about cyberbullying and what actions can amount to cyberbullying and the implications cyberbullying can have. By raising awareness children will know what to look out for and should be more willing to speak out.

As you will see there are many steps an individual can take against cyberbullies and we are here to help assist.

If you would like to discuss any of the legal issues raised in this article further please contact:

Mark Symons
Partner, Employment, Cyber Risk Management
T: 0118 957 0340
E: msymons@pitmans.com

Pitmans hosted an evening seminar on 1 February, sponsored by Prolinx, a specialist IT security solutions provider, at which delegates were stimulated by a panel of experts who highlighted some of the current threats and challenges posed by cyber risk.

The key note presentation was made by Professor Sadie Creese of Cybersecurity at the University of Oxford. Professor Creese kicked off with the scale which faced today’s society, highlighting that by 2020, there will be 31 billion connected devices and 50 trillion gigabytes of data created. This, in turn, will result in an increasingly vast ‘attack surface’ which presents those seeking to protect cyber assets with an enormous challenge. Professor Creese, amongst other things, pointed out the scarcity of meaningful metrics in relation to data security as well as the importance of preparing to ‘respond and recover’. As part of current research, it was clear that much needed to be done to develop invaluable analytics to measure security. And that, above all, the ability to attribute an identity to hackers or intruders remained a perennial vulnerability.

Philip James, a Partner who leads Pitmans’ Data Privacy & Information Law team, explained that the World Economic Forum’s recent Risk Report now lists cyber threats as one of the top 5 most risks threatening society in terms of likelihood. Philip highlighted the risks this poses to the current intellectual property enforcement regime: in the absence of identifying culprits, it remains difficult to take criminal action against those responsible and that all that will be left will be a dispute between the victim and its suppliers as to who is to blame. In addition, investors and companies will be increasingly reluctant to invest in R&D if valuable intangible assets cannot be protected from extraction. Philip also summarised the EU’s recent draft Data Protection Regulation which seeks to introduce a much stricter regime for serious breaches of data security (calculated as a percentage of global turnover) and a concept of accountability so that data controllers are encouraged to take responsibility for the protection of personal data.

Simon Milner, Head of Cyber Risk at JLT Speciality Limited, then provided a realistic explanation of the insurance landscape and what solutions are available to customers on today’s insurance market. Simon picked up on some of the themes touched on by previous speakers including the need to develop better analytics to assist risk grading and assessment. In particular, it was clear that many in industry were not necessarily aware of the variety of products currently available in this space, e.g. to cover reputation management, legal costs and re-constitution of lost data.

Finally, Nick Baskett, Chairman of Matta Consulting, a penetration and vulnerability consultancy, provided an invaluable insight into the gaps and strengths in existing data security systems, including:

• an amusing, if scary, expose on how effective intrusion detection systems can be when they are not correctly implemented; and
• how a software house subsequently discovered (after passing on the opportunity to carry out a security audit on a number of previous occasions) that a trojan was residing in its primary code repository.

Nick then stressed the distinction between carrying out a forensic investigation following an incident dependent on whether it was necessary to collect evidence or not (and the related costs involved). 

A copy of the WEF Global Risks Report is available here.

Following the session, McAfee have also released their 2012 Threats Predictions – click here for further details.

For further discussion of this seminar or other issues, please contact:

Pitmans’ Data Privacy & Information Law team

Pitmans’ Cyber Risk Management team

Philip James
Partner, Head of Data Privacy & Cyber Risk Management
T: +44 (0) 207 634 4655
E: pjames@pitmans.com

The Court of Appeal recently considered a case where a husband and wife each mistakenly signed the others will instead of signing their own. Despite the obvious a mix up, the Court with some regret declared that neither were valid, which resulted in a declaration that the couple had died intestate. There are times when the courts will read additional words into contracts or grant an order to rectify a contract so as to give the agreement its intended meaning, but the court did not feel they had the flexibility to correct this mistake. Whilst we would like common sense to prevail, decisions like this make it clear that the devil really is in the detail.

For further information on this article please contact the Pitmans Private Client Team.

Helen Clarke
Partner
T: +44 (0) 207 634 4630
E: hclarke@pitmans.com

Daniel Jacob
Partner
T: +44 (0) 207 634 4653
E: djacob@pitmans.com