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OCT
31

Sexual Harassment allegations - Post Fox News and Weinstein - Some advice..

houses parliament nw080609 2Without a doubt the recent allegations against both Fox News/their employees, and Mr Weinstein, represent a complete watershed in this area of law.

Victims of sexual harassment have become quickly emboldened, supported by campaigns in both social media and the press (see the FTs campaign within the City and finance sector), and are speaking up.

Accusations are coming through quickly and affect every profession, industry, sector, class, gender and community, even Parliament.

 

The Legal definition

The Equality Act 2010 defines sexual harassment (which is considered to be a form of discrimination) as ‘all unwarranted conduct of a sexual nature or related to sex, which has the purpose or the effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment‘.

It is a very wide statutory definition, it covers demands for sexual favours (for promotion or increased salary) touching, sexual assault or bawdy jokes/banter. It applies to a ‘one off’ incident as well as to a course of conduct. It does not have to be aimed at one specific individual, but can cover somebody who overhears the conversation or sees the text/email/physical contact.

Some professions, and the Law is amongst them, favour the ‘lads only‘ approach to client entertainment, or suggest to an employee that they dress ‘particularly attractively‘ or 'flirt', to secure an important client. Certainly, this type of behaviour is rife within the commerce, finance and entertainment business and falls squarely within the definition of sexual harassment.

We are regularly consulted by employers, their HR teams, victims of sexual harassment and those facing such allegations, seeking legal advice.

Let’s take each group separately:

 

 The Employer/HR personnel

Please understand that Employment Tribunals regard these allegations very seriously and can award large sums as compensation.

Not only may the company end up in an employment tribunal, but perhaps Court.

All employers have an implied duty under the contract of employment to provide a safe, appropriate working environment and to ‘provide redress of grievance‘, failure to do this could result in litigation citing breach of contract, with large damages at stake.

Accept that company cultural change starts at board level, and that change has to be assertively enforced.

Remember also, that the reputation of the company is at stake, so act quickly when the complaint is received.
So, no silly jokes from Management/staff, about how they cannot get away with saying that sort of thing nowadays - the public reaction to thoughtless comments made by certain politicians and entertainers should make it clear that such thinking is now socially unacceptable.

Get your bullying and harassment policies and procedures up to date and have a separate written policy on sexual harassment.

Ensure that every employee and Manager has regular training in this field (it’s a particularly fast moving area of law, and not one to underestimate).

Personnel who are either making the allegations or who are the subject of them, need to know who to turn to, that both sides will receive a fair hearing and the investigation of the allegations will be thorough and fair.

Document every meeting and conversation (remember they may end up being scrutinised in a legal tribunal of one type or another).

The investigations themselves can be quite complex and delicate- the harassment can often be conducted quite subtlety and discreetly. It can also just boil down to one person’s word against another’s.

Both sides have to feel that they are being handled sensitively and impartially, and they have the right to see the allegations, evidence and to respond.

Analyse the allegation and evidence carefully- were they made during working hours on working premises? In the course of the employees duties? Were the emails/texts/tweets made on the firm’s equipment? Are there Data Protection Act consequences to be considered? Does the allegation involve a third party/supplier /sub- contractor (again this area is very fast moving) as Barclays discovered earlier this year, to their cost (they were held liable in the High Court, for the actions of a GP instructed by them, as a third party, to assess the potential employees).

Be very wary of Non Disclosure Agreements - lawyers love them, the public and press do not.

In any event and despite the possibility of draconian consequences if the NDA is breached, as we have recently seen, some victims/complainants have breached them, confident that a company or employer would seriously assess the consequences and the possible, further reputational damage of suing for such a breach.

Employers can no longer just decide to separate the personnel involved, for example move them to a different office, and hope that will suffice. A sensitive, fair, balanced and pro active approach is now required from employers and their HR teams. If in any doubt, contact an experienced lawyer.

 

The Victim/Complainant

Research undertaken by both the BBC and trade union organisations recently, shows that sexual harassment is pandemic, and that the vast majority of those who have been subject to such harassment, do not complain about it. Most just grit their teeth, smile or even join in, terrified for their jobs and promotion.

The tribunals and courts understand this reaction, particularly when it involves (young) women and men or where English is not the first language.

Firstly, tell somebody - a friend/another colleague/Manager/your union/professional association/Citizens Advice Bureau.

Write all that happened down - preferably as soon as possible after the incident.

Collate as much evidence as you possibly can; every note/email/text/tweet/record of telephone calls/telephone messages. Keep this evidence as safely as you can and in clear, strict chronological order.

See if there are any witnesses to the events/comments- note who was around when the incident happened.

Think about building a strong case to submit with your complaint to your employers. Do not be afraid to speak up to your employer, you may find that you are not the only employee to make such an allegation against a certain employee(s) and co-workers.

Remember, that ordinarily you will have to originate proceedings with the employment tribunal within three months of the allegation. Not every employee is going to be able to afford a lawyer, however some lawyers will assist on a fixed fee basis.

 

The Accused co-worker/employer/employee

We have been consulted by a number of individuals/companies from the professions, commerce and entertainment worlds, in particular about the possible legal consequences of sexual harassment allegations in the wake of the afore mentioned American scandals.

These include concerns about the possibility of criminal proceedings, reputational management, professional disciplinary proceedings, civil actions and financial penalties.

Additionally, a number have found themselves falsely accused of sexual harassment and are simply terrified of the consequences upon their careers, finances and relationships.

We advise and represent these people and assist them to defend themselves.

 

How we, at Lewis Nedas Law, can help you

Unusually amongst law firms in England and Wales, we have not only expert specialist employment and discrimination lawyers, but can also call upon our team of highly regarded expert criminal lawyers who can advise not only upon potential criminal proceedings, but also reputational management.

Years of successfully defending sexual allegations, gives us unique insight into the assessment of the evidential value of these allegations of sexual harassment.

We know how to prepare cases and to defend these types of allegations. We can advise upon employment policies and compliance in this field.

We understand the consequences for employees, employers and professionals, in particular those from HR, commerce, the City, finance, sporting and entertainment worlds, having advised and represented these types of individuals and companies for decades.

We do so efficiently and discreetly, instructing the best specialist barristers and experts at reasonable realistic fee levels.

 

If you require advice, assistance or representation about any of the issues discussed in this article, contact us on 02073872032 or use our enquiry facility at www.lewisnedas.co.uk.

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SEP
07

More planned changes for POCA (Proceeds of Crime Act), asset restraint and confiscation proceedings

confiscationThe Home Affairs Parliamentary Committee concluded in July 2017, that Government and prosecution authorities are simply not doing enough to secure the proceeds of crime, from those convicted of crimes, and those who have managed to evade prosecution.

Focusing upon those convicted of criminal offences, over £1.61 billion remains outstanding from Confiscation orders made by the Courts, albeit 1/3 of that sum represents penalties and interest for non payment of those orders. As a result, The Law Commission has turned his attention to the issue and will report in October 2017.

In truth, the SFO and FCA have a much better record as far as recouping the proceeds of crime are concerned, certainly better than police forces, CPS and the NCA, that is probably because they have relatively well resourced specialist teams of lawyers and financial investigators.

Another possible explanation is that those convicted of financial crime and fraud often have easily identifiable assets, when compared with those convicted of drugs or people trafficking offences.

There have been substantial changes to the POCA regime, as embodied within this years Criminal Finances Act 2017 re Sar reports and Unexplained Wealth Orders (please see our blog: Unexplained Wealth Orders : a new tool for seizing proceeds of crime 12/4 2017 – newsroom section on our website).

The CFA 2017 brings in new disclosure orders including the requirement of a third party to disclose information as required and amendments to SAR regime.

All POCA regulated firms can now share information with other such regulated firms where there is a suspicion of money laundering.

The NCA will now be able to extend the moratorium period to six months and the Magnitsky Clause within the CFA allows non–conviction recovery powers to include assets obtained by a gross abuse of human rights.

Additionally, The Home Office and The Attorney Generals Office have just closed a consultation on 25/09/2017 which will focus upon the following discreet areas:

  1. Powers to search, seize, and detain property
  2. Exercising investigation powers under POCA 2002
  3. Using search powers to recover criminal cash
  4. Powers to seize identifiable listed assets
  5. Prosecutors guidance on the operation of POCA investigation powers
  6. Exercise of various new seizure, detention and forfeiture powers under the CFA 2017 (Criminal Finances Act)

The FCA is also considering criminally prosecuting firms/individuals for anti money laundering failings – see their business plan for 2017/2018.

They are keen to also establish 0PBAS (Office for Professional Body AML Supervisors), which will oversee (and enforce) obligations under new AML Regulations.

 

How can we help you?

We have one of the leading specialist POCA defence teams in the Country; we advise those facing POCA proceedings and those immediately affected by such orders e.g. third parties, business partners and co Directors.

Our team includes specialist White Collar/Corporate Crime defence teams, highly ranked by the leading Legal ranking directories and are  highly experienced when dealing with these proceedings, including AML, taxation, bribery and corruption, market offences, and have a genuinely in depth knowledge of Prosecution agencies policies and behaviour.

A number of other firms of lawyers have Dispute Resolution Departments comprising of corporate litigators and young barristers that deal with this field and are relative newcomers to this area of law. Not us, we have been dealing with these issues since the enactment of POCA 2002 and believe in early pro active defence, an approach which has proved to be very successful.

Please contact our asset confiscation team on 02073872032 or use our online enquiry facility at www.lewisnedas.co.uk

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SEP
05

Abolition of Employment Tribunal fees: what is it likely to mean for employers and employees alike?

The Supreme Court decision in R (on application of Unison) v Lord Chancellor (2017) UK SC 51 (26/07/2017) ruled unanimously that the Employment Tribunal fees brought in by government in 2013 are unlawful, deny the fundamental right of access to justice and contrary to both common and EU law. Additionally, the Supreme Court also ruled that these fees discriminate against women.

Unison persisted with their claim despite numerous rejections and set backs from the lower courts.

This has to be one of the most momentous recent decisions in Employment law and the ramifications of this ruling are going to be enormous and complex.

The number of claims in the Employment Tribunal dropped from 7,000 to 1,000 (a reduction of nearly 70%) after the imposition of those fees, and it's highly unlikely that future numbers of claims will reach 7,000 again. This is largely because of the mandatory ACAC early conciliation process.

Apparently, government are considering whether or not to reintroduce fees at lower levels and in a lawful manner, but even if they decide to do this it will take a great deal of time.

In the first instance, the most likely effect is to cause further strain and delays within the severely underfunded Employment Tribunal system.

Fees paid by claimants since 2013 will fave to be refunded, and those employers who settled or paid compensation (including the tribunal fee element) will also have to be refunded.

It may be possible for employees now to bring claims out if time, but this very much depends upon the type of claim (i.e. unfair dismissal or discrimination). Each of these claims have individual tests that must be satisfied, e.g. Whether it was 'not reasonably practicable' or if it is 'just and equitable' to bring a claim, respectively.

This could lead to huge difficulties for those seeking to bring or defend older claims, particularly if documentation and records have been destroyed or lost.

The Employment Tribunal has made a recent case management order dealing with the consequences of this Supreme Court ruling:

1) The stay on those claims relying upon this judegement is to be lifted immediately;

2) Reimbursement of fees are to be made, following administrative arrangements made by both the MOJ and HMCTS;

3) Reinstatement of claims rejected on the basis of non payment of fees shall be made pursuant to administrative arrangements produced by the MOJ and HMCTS;

4) Remainder of claims brought upon reliance of the Unison judgement should be brought in the usual way to the regional Employment Judge for each ET region.

 

If as an employer, GC, HR professional or employee, you require advice on any of this information or any aspect of employment law, contact our highly skilled and experienced specialist lawyers.

Call us on 0207 387 2032 or use our enquiry facility on www.lewisnedas.co.uk.

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MAY
30

POST-BREXIT BRITAIN GOVERNED BY ENGLISH LAW

eu post brexit lawSeveral EU initiatives have harmonised the cross-border litigation rules applicable across the European Union. But what will happen to these rules post-Brexit? And how will the UK adapt its own rules to meet a post-Brexit Britain?

CHOOSING THE ENGLISH COURTS

Currently, enacted EU law provides that the choice between parties to litigate in the English courts is valid and effective (Article 25 recast Judgments Regulations). The ability to extend this choice to non-contractual relationships between parties also helps to promote a ‘one stop shop’ for all parties’ litigation needs to be heard by the English courts.

However, this freedom for parties’ to litigation to choose the English courts is currently heavily restricted in relation to consumer, insurance and employment contracts. In respect of such contracts, any judgment obtained in the court of another member state must be upheld even if this is in direct breach of an English jurisdiction clause, specifying that the English courts were to be used. Therefore, initially it appears beneficial post-Brexit for no arrangement to be made of these restrictions, as these restrictions would not necessarily apply if the UK reverted entirely to its pre-EU common law position.

Alternative positions may be considered, below.

ALTERNATIVE ARRANGEMENTS POST-BREXIT

CHOICE OF JURISDICTION CLAUSE

Given the certainty of Article 25 (above), an agreement could be reached with EU Member States to continue to apply these recast Judgments Regulations to relations between the UK and member states.

However, in the alternative an agreement between the UK and EU Member States could also be sought to extend the Lugano Convention (which is applicable to Norway, Switzerland and Iceland as well as EU Member States). The Convention is similar to the Judgments Regulation, save for the court having discretion and first refusal as to whether to accept jurisdiction where neither party is domiciled in the contracting state (i.e. in the UK). Further, if parties opt not to issue litigation in the English courts, the English court cannot intervene or retrain these proceedings and cannot question any jurisdictional clause, deeming it to be ‘null and void’. This would provide parties to litigation with wider autonomy in the event of a dispute, especially when not located in close proximity of the UK.

Further still, in anticipation of Brexit, the UK could ratify the Hague Choice of Court Convention 2005 whereby the English courts must accept jurisdiction in cases where there is an English ‘exclusive jurisdiction clause’ (unless under Article 5 of the 2005 Convention, that clause is in fact null and void under its law). Under the 2005 Convention, courts of other contracting Members States must also give effect to an English exclusive jurisdiction clause and decline their own jurisdiction under Article 6. Beneficially therefore, English court judgments will be enforceable in all Members States.

Again the above alternatives do not apply to consumer or employment contracts and further consideration may be required in respect of these contracts as well as non-exclusive jurisdiction clauses.

NON-EXCLUSIVE JURISDICTION CLAUSES AND ASYMMETRIC CLAUSES

Although the legal basis may be different, there are strong grounds to anticipate that the English courts will also robustly uphold non-exclusive and asymmetric jurisdiction clauses. However, there is more doubt as to whether the courts of Members States will uphold English jurisdiction clauses in the absence of an applicable international instrument post-Brexit. This remains to be seen. 

CONTRACTUAL OBLIGATIONS

The Rome I Regulation currently upholds the parties’ choice of English law to govern their contractual relationship throughout the European Union. However (as above) it also restricts consumer, employment and insurance contracts involvement.

Even if no Brexit agreement is reached to continue to apply Rome I Regulation, arguably the UK could continue to apply it by enacting it into domestic law. This is because the Rome I Regulation is not reciprocal by EU Member States. Thereafter other Member States will continue to apply the Regulation and give effect to an English choice of law clause, regardless of where parties are domiciled. In this event, the pre-Brexit position will effectively remain unchanged. 

BACK TO COMMON LAW

If however the above named Rome I Regulations, the recast Judgments Regulations and/or any other EU instrument currently in place will not apply post-Brexit, English common law rules will revive to determine contractual governing laws and choice of jurisdiction clauses. Common law too permit the parties to choose their governing law (Vita Food Products Inc v Unus Shipping Co), and in fact is far less restrictive as there are no specific restrictions in respect of consumer, employment and insurance contracts at common law.

However, there is real doubt that a clause in respect of non-contractual obligations between parties will be effective in the English courts. For example, in respect of torts, common law (s.11 Private International Law (Misc Provisions) Act 1995, Pt III) would revive and does not allow parties to choose their governing law. Very occasionally a choice of governing law may be displaced if it is substantially more appropriate for determining the issues arising in the litigation, but a direct choice of English law is not generally permissible under the 1995 Act - which may pose a problem post-Brexit.

CONCLUSION

Whilst it is impossible to know exactly what might happen to this area of law after Brexit, there is strong optimism that that exclusive jurisdiction clauses and contractual agreements in favour of the English courts are likely to continue to be effective in England.

The position in respect of non-exclusive and asymmetric jurisdiction clauses is a little less clear however, and together with the position on non-contractual relationships, is yet to be seen!

 

By Annabelle Pantling

Solicior in the Litigation & Commercial Department

 

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MAY
25

Commercial and Litigation Department; May 2017

london solicitorsTo all our commercial clients and prospective commercial clients,

April is always a busy month in the legal world, as Bills receive Royal Assent to become Acts of Parliament, and this year was no different as twenty new Acts came into force, making a total of thirty in 2017 so far. In addition, what would appear to be the last Spring budget for the foreseeable future has meant that both companies and individuals alike will no doubt be feeling the effects of these new socio-political/socio-economic changes fairly soon, and with an election just around the corner and Brexit negotiations becoming a “brutal reality” (according to The Economist), who knows what the future holds!

At Lewis Nedas Law we always strive to stay on top of our game, and now that some of these changes have started to come into effect, we thought that now would be the time to give a little snapshot of just some of the areas that we know about that might interest you. We’ve also thrown in some recent cases for good measure.

 

Employment

1) Statutory payments

From April 2017:

  1. Family; the weekly rate for statutory maternity, paternity and shared parental pay has increased to £140.98 from 2 April 2017 onwards.
  2. Statutory Sick Pay (SSP); has increased to £89.35.
  3. Statutory Redundancy Pay (SRP); For the purposes of calculating a redundancy payment (age, weekly pay, length of service), 'weekly pay' has increased to £489.00.

 

2) Employment Tribunal Cases

The Employment Appeal Tribunal has held that a second ACAS “early conciliation certificate” (EC) issued for the same matter as the first will not extend a claimant's time limit for instituting tribunal proceedings (Commissioners for HM Revenue and Customs v Serra Garau UKEAT/0348/16).

 

3) Employer requirements:

All organisations with a headcount of 250 or more must publish annual figures about its “gender pay gap”, which means the difference between the average earnings (including bonuses) of men and women.

In addition, The Pensions Regulator (TPR) has just issued a penalty of £40,000 against an employer for failing to comply with automatic enrolment. It is also threatening criminal prosecutions against employers and has started a “name and shame” campaign. Employers are therefore strongly advised to check their compliance in relation to pension schemes.

 

Corporate and Commercial

Commercial contracts

1) In Wood v Capita Insurance Services Limited, the Supreme Court has clarified the correct approach to be taken when interpreting commercial contracts and finding a balance between “textual analysis” and “commercial good sense” (as per the tests in Arnold v Britton and Sky v Kookmin Bank respectively).

The correct interpretation will depend on a range of factors, such as:

  1. words used in the contract;
  2. the context in which the words are used;
  3. business commercial sense.

The Supreme Court also added in its judgement that it is “not for the court to remedy a bad bargain” and that the tools for interpretation listed at a) - c) will be used depending on the facts of the case.

 

Corporate considerations

2.We posted an article last year about the PSC (Persons with Significant Control) regime affecting companies in the UK.  In light of the crackdown on organised financial crime, the Government has posted new information on the changes to be made in respect of UK money-laundering measures to help prevent money-laundering and terrorist financing.  The legislation, effective 26 June 2017, will change the current requirements concerning PSC information to be registered at Companies House and can be found here: https://www.gov.uk/government/news/changes-to-uk-anti-money-laundering-measures.

 

Judgements

3. In the High Court, only 35 judgments have been registered against consumers 2017, which is the lowest total number for a single quarter since records began. The average value of a High Court Judgment against a consumer also fell 44 percent year on year to £446,308. 

Comparatively, County Court judgments (CCJs) are on the rise, with 298,901 debt judgments registered against consumers in England and Wales in 2017 (an increase of 35%). This is the highest figure for a single quarter in over a decade. This means that, for every 1,000 consumers in the UK, 5.16 now have a CCJ against their name, as opposed to 3.85 in 2016.

Does this mean that consumers and businesses are not being deterred by rising court fees, or is there another reason for the dramatic change in these figures? Watch this space…

Source: The Registry Trust Limited

 

Professional Negligence and Litigation

Professionals: breathe a (small) sigh of relief when dealing with impulsive clients

1. In a classic example of the UK Legal System Hierarchy at work, the Supreme Court has upheld the Court of Appeal’s decision to overturn a lower court judge in BPE Solicitors and another (Respondents) v Hughes-Holland (in substitution for Gabriel) (Appellant) [2017] UKSC 21 on appeal from [2013] EWCA Civ 1513.  A link to the judgment can be found at the following address: https://www.supremecourt.uk/cases/docs/uksc-2014-0026a-press-summary.pdf.

In summary, the highest court in the land found that a professional advisor cannot be liable for a person’s poor commercial decisions.  We hope that this gives some reassurance to our professional clients!

 

 

Blog by Adam Creasey, Associate Solicitor.

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