10 minute read
Legal Update
All Things Legal ……….April 2022 - Gordon Kerr
Looking back at the legal questions which I’ve received in recent months provides evidence that business is getting back on its feet again. There is a pleasing familiarity about being asked for opinions on issues around personal data, contract clauses, antimoney laundering rules and VAT. And, in most parts of the world, Covid-related travel restrictions are easing. But all our business challenges of the past two years are surely put into perspective by the suffering and the bravery of the people of Ukraine at this time. It is a reminder that, even in 21st century Europe, freedom and democracy can never be taken for granted. On that necessarily solemn note, I would like to share a variety of legal updates which I hope will be helpful to your business:
• The Djokovic Affair: can you dismiss an unvaccinated employee? • Practical jokes in the workplace – can your business be liable? • The cost of losing employee data • More UK SMEs are opening offices in the
EU • Copyright law – be careful about using photos of cute animals! • Trademarks – be careful about upsetting
UEFA! If there is a particular legal topic that you would like me to cover in a future edition of The EuRApean, please feel free to contact me anytime.
Gordon Kerr EuRA Strategic Consultant Legal gordonkerr@gklegal.co.uk
I have just been watching an interview with Novak Djokovic. He refuses to be vaccinated against Covid-19. As a selfemployed sportsman, he is free to make that choice, but it meant that he was unable to defend his Australian Open title and he
may face similar bans from the French and US Opens.
So what happens if one of your employees holds similar views to Djokovic and refuses, on principle, to be vaccinated?
A UK employment tribunal has considered the case of a care worker who declined vaccination in early 2021. In Allette v Scarsdale Grange Nursing Home Limited an employee was dismissed from her role as a care assistant at a home providing residential care to dementia sufferers. The home had been hit by a Covid-19 outbreak in December 2020 with 22 residents and 33 staff (including this employee) being infected and a number of deaths had occurred.
Following the outbreak, the employer made vaccination a condition of continued employment. The employee was concerned about vaccine safety, believing it had been rushed through testing and she had read stories on the internet about a Government conspiracy. At a disciplinary hearing she also indicated, as a practising Rastafarian, an objection on religious grounds. The claimant was dismissed for “failing to follow a reasonable management instruction”.
The court considered whether the dismissal was an unjustified interference with the employee's right to private and family life under Article 8 of the European Convention on Human Rights. It found that the employer's aims of protecting staff, residents and visitors and not breaching the terms of their insurance were legitimate. The imposition of the mandatory vaccination policy met a pressing social need to reduce risk. Although the employee had genuine fears, they were unreasonable given the lack of any medical authority for her position. Given the nature of the employer's business and the vulnerability of its residents, the interference with the employee's private life was proportionate. The employee's scepticism of the official Government advice on the vaccine was not a reasonable excuse for failing to follow the instruction to get vaccinated.
Cases such as this are always decided on their specific facts and circumstances, but it is helpful to know that if an employer has reasonable grounds for enforcing a vaccination requirement in the workplace, this will not be treated as a breach of an employee’s human rights. Employment rights do of course vary
from country to country and any decision to dismiss an employee on grounds such as this should only be taken after consultation with a local employment lawyer.
The legal doctrine of “vicarious liability” means that a business can be held liable for the crazy actions of a single, mischiefmaking employee. If this stupid or deliberate action results in a claim for damages being made by another employee or a member of the public, then it’s a sure thing that the legal claim will be laid at the door of the employer. For this reason, businesses should ensure that they have adequate insurance to cover such claims.
A recent case in the English Court of Appeal considered the issue of how far the vicarious liability of an employer should extend. Should a business be liable for the actions of a practical joker in the workforce?
In the case of Chell v Tarmac Cement and Lime Limited ("TCLL"), a fitter employed by TCLL thought it would be amusing to hammer pellet gun targets he had placed beside the ear of a contractor who was working on the same site. The explosion that followed caused the contractor to suffer noise induced hearing loss and tinnitus.
The contractor brought a claim that TCLL were vicariously liable for their employee's negligence. In rejecting the claim, the Court of Appeal held that the actions of the employee had not been reasonably foreseeable. The Court held that:
This judgment has come as a relief to employers and their insurers. If employers were to be liable for pranks that simply happen to occur in the workplace it would make them responsible for actions that they could not reasonably foresee and therefore risk assess.
In a relocation company context, you probably feel that this level of office “horseplay” is unlikely. But consider the situation where a disgruntled employee, with access to HR records, decides to post online some sensitive information
on other employees. Your business may have to defend a compensation claim from these employees …. and you will be grateful that you arranged that insurance!
The cost of losing employee data
What is the cost to your business if you cannot find personal data requested by an employee?
According to a recent case against Tesco, which was settled out of court, the answer is £3,000!
A Tesco employee had requested the information, which included sensitive medical information comprising notes from counselling sessions and details of her post-natal depression, as part of an unrelated employment tribunal claim. Despite an extensive search, Tesco were unable to find the records which covered a period of 15 years.
The important legal point here is that protection of personal data (particularly sensitive data) is not only about GDPR compliance, but is also necessary to protect your business from compensation claims. During 2021 there was anecdotal evidence that, faced with increasing paperwork and customs problems, more and more UK SMEs were shifting parts of their business facilities away from the UK and opening for the first time in EU countries such as Germany and The Netherlands. This has been confirmed by an Institute of Directors survey of 635 business leaders which found that a quarter were considering moving some of their European operations outside of the UK and 16 per cent were already doing so. Three-fifths said that their costs of trading with the EU had risen and nearly half said that they were doing less EU business or had stopped trading entirely.
The food and drink sector is an example of this. Exporting from the UK now requires an understanding of the different VAT rates and food standards regulations in multiple EU countries. These postBrexit levels of complexity are just too difficult for many smaller businesses. However, by setting up a new distribution
hub, in a location such as Rotterdam, much of the pain can be avoided. There is also the advantage of lower corporation tax in The Netherlands for companies with relatively low profits.
It will be interesting to monitor this trend in the year ahead. If the trend accelerates, it could turn into a major headache for the UK government.
Copyright law – be careful about using photos of cute animals!
For many relocation businesses, their first encounter with copyright law is when a letter arrives from a copyright enforcement agency, such as PicRights, claiming that an obscure photo on your website is subject to their client’s copyright. The letter will demand that you remove the offending photo from your website …. and pay compensation of something like €500!
Now this may sound like a scam. Unfortunately, it’s a perfectly legal scam – and most businesses will pay something just to get rid of the problem. The only real solution is to review your website carefully and ensure that there are no “rogue” photos or other illustrations which could be subject to copyright.
Even national governments can accidentally find themselves in breach of copyright. Next year, Croatia will join the Euro. To celebrate the event, a competition was held to design the country’s first Euro coin. The winning entry featured a very cute pine marten resting on a tree branch. The Croatian National Bank was delighted with the outcome and paid out the prize of €10,000 to the winning designer. A happy outcome. Except …
It turns out that the designer had copied a photo, taken in 2005, by a Scottish photographer called Ian Leach. Mr Leach was not happy. Neither was the “designer”, who has been forced to return his prize. As for the Bank, it has gone back to the drawing board and now has to create a new Euro coin - again!
As for Mr Leach, he confirmed that he has no plans to sue Croatia and wishes them well in choosing a new design. A true Scottish gentleman!
Animal lovers among you may have spotted that this story is illustrated with a photo of a koala bear. My defence is that the koala photo is copyright-free and, unable to find a free pine martin photo, I opted to sacrifice accuracy against the risk of EuRA receiving a breach of copyright claim!
Staying with the bizarre world of intellectual property (IP) claims, I feel that I have to draw your attention to a recent claim involving UEFA, the governing body for European football.
It has now been agreed that a restaurant in Germany can carry on offering a “Champignons League” mushroom pizza after UEFA backed away from legal proceedings over infringement of IP rights in its Champions League.
The owners of Pizza Wolke, in Giessen, near Frankfurt, had posted on their Instagram account an image of a letter from UEFA which threatened legal action – which UEFA now claims was instigated by an “overzealous local trademark agent”.
On reflection, UEFA concluded that the witty name is not likely after all to devalue a competition which last season offered prize money alone of up to €85 million. They concluded their statement with the observation that “some people are making a meal of this story”. Groan!
For further information on either of these new legal services, please contact me at gordonkerr@gklegal.co.uk or call +44 (0)7850 080170.
The Legal & Tax Report is produced for The EuRApean by Gordon Kerr, EuRA’s Strategic Consultant - Legal Services. Gordon can be contacted at gordonkerr@gklegal.co.uk.
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