Discrimination in the workplace should be one of the easiest employment issues for managers to control.  It can often take the form of so called "banter" which the perpetrators claim is said in jest but with strict transparent guidelines as to unacceptable behaviour and zero tolerance to any employees who breach them should offer managers a straightforward and uncomplicated process when dealing with suspected discrimination.

The difficulty is that often it is the manager's abuse that causes the problem.  Inadequate training and slack monitoring of senior staff can create a situation that can impact badly on the business, but when the owner is the problem the business may be doomed.  In the case of two hotel workers, Andrew Roberts-Evans and Martin Owen, a manager and chef respectively, at the Grapes Hotel Maentwrog in Snowdonia were obliged to share a twin bedded room due to lack of separate staff quarters.  Hotel owner Simon Buckley regularly taunted the two straight men quipping that they were a gay couple which both men found offensive and humiliating.  Mr. Owen was made redundant and a replacement appointed almost immediately and Mr. Roberts-Evans resigned when he saw his job advertised in a trade magazine.  The tribunal found that the two men had been wrongly dismissed addition to being subjected to sexual discrimination and awarded £33,165 to Mr. Roberts-Evans and £23,384 to Mr. Owen; however there is little chance of receiving their compensation as the company has gone into voluntary liquidation.

TMA Legal Comments:

Employers must invest in comprehensive training both themselves and their managers in order to prevent a completely avoidable financial and reputational body blow.  Simon Buckley appeared to have no understanding of the current employment law or the risk he placed his business under.  The cost of an HR retainer package including the safety net of a training programme is more than off-set by keeping the business protected from the bombshell of a tribunal case born of staff ignorance.

The Italian procedure differs substantially from other European procedures and the explanation of the grounds for opposition is far from clear but it is a step in the right direction.

Employees must have a clear understanding of their role and duties and know what rewards and penalties will result from good or bad performance.  Therefore goals must not move without warning or explanation otherwise it is possible in extreme circumstances to provide the basis for a tribunal claim.  For example an underperforming employee faced with a sudden change or increased work load may argue that this was done to pressure them into resigning thus paving the way for a constructive dismissal claim.  This is why it is absolutely essential to ensure that an employee is aware of and accepts the goals set for them.  This also means that the goals have to be achievable.  If a good employee is tasked with an "impossible dream" target not only will you not get buy-in but they will think whoever set the target is an idiot.

However if you really think that a target is achievable and the employee is being too defeatist you should take them step by step through your reasoning.  If they still do not share your view you may have to revise your approach as employee agreement provides you with something to point to if their performance falls short, without it the employee will simply say "I told you so" if things go wrong.

With the exception of the extremely clever, who prefer to be criticised, the vast majority of us prefer to be praised and clearly people work much harder for an employer that makes them feel valued and acknowledges their successes.  If you have to deliver criticism it should never come as a surprise, an employee should be fully aware of his or her duties and the standard of conduct expected by the business. Whilst you must of course discuss target failures etc. this should be tempered with some applause for what went right or at the very least a few words to indicate confidence in the future.

An insensitive or hectoring manner, whilst in itself would not necessarily justify bringing a case, risks being viewed as part of an orchestrated attempt to put pressure on an individual, as in the case of MacFarlane -v- Bates Wells and Braithwaite.  Due to a change in her personal circumstances Ms. MacFarlane's performance began to suffer.  She was then subject to a number of disparaging incidents and resigned following which she brought a case to the employment tribunal. The tribunal took the view that the incidents, while they were not necessarily breaches in themselves saying "...cumulatively they amounted to a breach of the implied term of mutual trust and confidence, building up to the last straw...".  The employment tribunal concluded that Ms. MacFarlane had been constructively unfairly dismissed.  Bates Wells and Braithwaite appealed and lost as the EAT held  "...that the employment tribunal had identified sufficient facts, without necessarily taking themselves through the individual component parts form them to draw the conclusion that the conduct of the employer, viewed objectively, entitled them to conclude that Ms. MacFarlane was being put under undue pressure to resign..."

Never lose sight of the fact that employees have the right of access to appraisal and performance review notes.  Whilst comments such as "...this young lady has delusions of adequacy..." and "...the employee is depriving a village somewhere of an idiot..." may make amusing and sometimes accurate reading such comments will only pose a massive threat to the business if they ever come to light.

Even with a failing employee it may be possible to praise them into performing; few people do not respond well to a vote of confidence and most people will try hard to meet expectations.  If the role is truly beyond them and they have always felt they have been treated well they may decide a career change is called for and move on with no hard feelings.

Liberal encouragement and praise are likely to produce better long term results and line managers' optimistic expectations can be surprisingly self fulfilling.

During a series of court hearings where Mrs. Norman sought to increase and lengthen the maintenance package it became apparent that, as the judge remarked she  "...appeared to think that her husband indefinitely owed her and her children a meal ticket..."  The Judge decided to award £12,000 per year instead of the £48,000 sought by Mrs. Norman with the payments ending in April next year.  The case has been ordered to go before a full Appeal Court.

A victory for Mr. Norman would doubtless see a flood of cases, mainly brought by ex-husbands, attempting to disentangle themselves from their work-shy ex-wives.  Current thinking leans towards a "clean break" for divorcing husbands and wives enabling everyone to move forwards and make a new life free from encumbrance.  The date for the full Appeal has yet to be set.

Whilst the wife didn't mind her husband leaving the London office of a Scandinavian bank she did object to him seeking work outside the banking profession and believed he deliberately shunned sizeable earning capacity.  She instigated divorce proceedings in November 2009 and when rejecting the settlement offer extended by her husband she said that he should share his pre-marriage assets as the potential £4.8 million half share of their joint assets was "...barely enough to meet her reasonable needs..." as she had become accustomed to a certain standard of living.

The judge decided that no criticism could be levelled at the husband for seeking a more satisfying and happier career and that the husband had conducted the litigation fairly, he concluded that the husband could keep £1 million of his pre-marital wealth, minus £250,000 for school fees, and the balance was to be split 50/50 leaving the wife with a small uplift of £67,000.

A dose of "real world" vision should be introduced before a spouse seeks to increase an already large settlement or it will end in tears. 

It is increasingly necessary for businesses to include within the firm's internet policy a public web participation policy otherwise there is a danger that detrimental comments may go across the universe.

Another potential risk is that employees may not consider the information posted on sites such as LinkedIn to be part of their employer's confidential client information.  If and when employees move on they may still have access to such information.  In the case of Hays -v- Ions Mr. Ions, an employee of Hays recruitment agency of over six years standing, set up a rival agency three weeks before handing in his notice during which time he accessed Hays' client contacts through his LinkedIn account.  When legally challenged he claimed that Hays had actively encouraged him to link with clients and that such information was in the public domain once the client had accepted his invitation to link.  This argument was rejected by the court saying that Mr. Ions' action in uploading client information whilst he was still employed by Hays "may have done so, not for the benefit of Hays but for the benefit of his post-termination business".  However, this may have been harder to demonstrate if Mr. Ions had uploaded the client information over a long period of time and waited a little bit longer to start targeting his employers' clients. 

The Ministry of Justice, the Metropolitan police, Marks & Spencer and Virgin Atlantic have all had problems with staff and social networking sites and some of them have been obliged to dismiss and discipline members of staff.

The lessons are, in the first place keep control of all communications issuing from your organisation and secondly be extremely careful in allowing your employees to access client information.  If you put in place strict guidelines with regard to the nature of the information permitted to be posted on public forums and also limiting the access to client contact details and then make crystal clear the disciplinary sanctions should any member of staff attempt to breach the guidelines this should go some considerable way to protect your position.

Under the new proposals all claims will have to be submitted to ACAS and will also include a compulsory month of pre-claim conciliation with the aim of reducing the number of cases reaching the Tribunal.  Whilst this adds another step and may lengthen the procedure it is hoped that it will be effective in spotting the spurious claim at an early stage.  However the fear of large penalties on top of any awards made to the claimant will almost certainly force the majority of employers to offer settlements, however unjustified, unless the issues are crystal clear.

In another effort to cut costs one judge is to sit rather than a panel of three in the less complex cases.  As so many employment law cases are extremely complex it is quite likely that all parties will press for the full panel.  The best way to deal with employment law issues is to have solid copper bottomed contracts, policies and protocols in the first place and to follow them to the letter.  Additionally to make sure your staff is thoroughly trained in every aspect of correct behaviour in the workplace and they are fully aware of the consequences, both to themselves and to their employers, of contravening current employment law.

If everyone knows what they should and shouldn't be doing there can be no defence or excuses if someone fails to do so.

The new regulations cover a wide spectrum and we have set out below the new regulations and the implications in chronological order to help you keep compliant.

1 January 2011 - National Minimum Wage (Amendment) (No.2) Regulations 2010

The year starts with a change to the Regulations relating to the National Minimum Wage.  Expenses in respect of travel and related subsistence costs incurred by employees when travelling to a temporary workplace can no longer form part of the employee's pay for the purposes of the national minimum wage.  The draft Regulations can be seen on the OPSI website.

1 February 2011 - New Tribunal Awards Limits

• The Employment Rights (increase of Limits) Order 2010 (SI 2010/2926).  The maximum compensatory award for unfair dismissal will rise from £65,300 to £68,400.
• The cap on a weeks' pay for the purposes of calculating statutory redundancy pay will go up from £380 to £400 (gross) per week.
• The minimum basic awards for dismissal related to health and safety, employee representative, trade union, or occupational pension trustee reasons will increase from £4,700 to £5,000.

3 April 2011 - Statutory Maternity, Paternity and Adoption Pay Increase

Pay increases from £124.88 to £128.73.  Information related to the new rates can be seen on the Department for Work and Pensions website.

3 April 2011 - Additional Paternity Pay and Leave

This provision allows employees who are fathers of children due to matched for adoption who are also spouses or partners of mothers entitled to take maternity or adoption leave, to take up to 26 weeks paternity leave in the first year of the child's life or the first year after placement.  Leave taken during the mother or partner's statutory maternity pay period, maternity allowance or statutory adoption pay period may be paid: leave taken after this period will be unpaid.

6 April 2011 - Increase in Employee National Insurance Contributions and allowances

The threshold for National Insurance Contributions rises to £570 and the personal allowance for basic rate tax payers under the age of 65 years is increased by £1,000.

6 April 2011 - Increase in Employer National Insurance Contributions

Thresholds increase by £21 above indexation and employers National Insurance Contributions increase by 1%.

6 April 2011 - The Apprenticeships, Children and Learning Act 2009

This conveys the right to make a request for training or study leave whilst working in an organisation with fewer than 250 employees.  Such requests must be considered by the employer and will only be able to be refused if there is a good business reason for doing so.

6 April 2011 - Abolition of the Default Retirement Age

Notifications of retirement using the default retirement age will no longer be permitted.  However should an employer issue a notification of retirement before 6 April 2011 they will be able to retire any employees whose retirement date is before 1 October 2011.  Employers are prohibited from dictating a compulsory retirement age unless it is justified as an appropriate means of achieving a legitimate aim.

6 April 2011 - Increase to Statutory Sick Pay

Statutory Sick Pay is to be increased from £79.15 to £81.60 per week.

April 2011 - The Bribery Act 2010 Bribery Offences Introduced

The Act introduces a new corporate offence, that of failure to prevent bribery by persons working on behalf of the business.  The only defence that a company can use in mitigation, if bribery is found to have taken place, is that it has adequate procedures in place.  The penalty for an organisation found guilty of the offence is an unlimited fine; the penalty for an individual working within the company or as its agent is ten years imprisonment.

April 2011 - Right to Request Flexible Working Extended to Parents of Children Under 18

The right to request flexible working now extended to all parents of children under the age of 18, also to employees who have responsibility for the care of adults aged 18 or over.

April 2011 - The Equality Act 2010 Section 159 comes into Force

Positive Action Provisions of the Equality Act come into force which allows employers to treat individuals with a protected characteristic more favourably in respect of recruitment or promotion, providing the candidate is of equal merit and the favourable treatment enables them to overcome or minimise their disadvantage or otherwise participate in an aspect of work in which he or she is under-represented.

Obviously some of the new Regulations have more impact on businesses than others.  Whilst they are all important and must be addressed, the ones to watch are: The Bribery Act 2010 new offences; The Equality Act positive action provisions and the whole question of how to deal with retirement.  These Regulations are brand new and any litigation arising from them will be breaking new ground making it difficult to predict whether the courts will rigorously enforce, applying the maximum penalties, or allow businesses any leeway and a little bedding in time before taking robust action when the first cases arise.  The wisest course of action is to have your policies and protocols ready before any problems present themselves.

In light of the authorities constant public warnings on the dangers of travelling in the snow and ice employers may be extremely unwise to use heavy handed pressure to induce employees to make dangerous journeys which may put them at risk of an accident, especially if they are put under the impression that they will be subject to a disciplinary procedure or deduction of pay unless they appear at work.  Such a stance is highly likely to have an adverse effect on the morale of the staff; particularly those who have struggled for many hours in freezing conditions only to find their efforts are in vain or worse still find themselves stranded.

A better approach perhaps is to agree with employees that any days spent at home due to the bad weather will be regarded as part of their holiday allowance.  Better still, remote working from home by way of current technology is an extremely acceptable way of dealing with on-going travel problems and also minimises the impact on the business.  However, this must be planned in advance, it is not ideal to be trying to remember what the password is and how you log-on remotely and divert calls when half the password and user name information required is sitting in the unmanned office and the employee is sitting at home.  Obviously this solution is only possible for certain kinds of work.

Another facet of this thorny question is how to deal with employees whose children's school has closed due to the bad weather leaving their parents with no choice but to stay at home.  This eventuality is covered by the Employment Rights Act 1996 (s57A) which provides for time off for domestic emergencies which impact on the care of a dependant and not to be dismissed or victimised for doing so.  In the case of an unexpected school closure the statutory right amounts to only enough time to put alternative arrangements in place for the care of the child or children and not to be an excuse for taking a week or so off.  The statutory entitlement is to unpaid leave only, however some employers will agree to staff using part of the holiday entitlement for the time taken, others will exercise their discretion to pay it in any event.

Disruption to travel for whatever reason is a contingency that employers should consider well in advance as it is likely to be an on-going feature of life.  The best way to deal with this situation is to have an adverse weather policy.  Set out what you expect from your employees and what they can expect from you in such circumstances.  This eliminates the opportunity for confusion and disagreement.  If you plan to make discretionary payments to staff unable to get to work you must be absolutely clear and make sure your policy is consistent and fair.

Adverse weather conditions are the fault of neither the employer nor the employee; a reasonable commonsense approach is the only way to deal with the problem

Savills asserted over a year ago that the property market would suffer a "second slip".  However they contend that there will not be a deep "double dip" and the best properties may not even be touched.  The report also indicates that not only is there a widening divide between the best stock and the rest but also that a geographic divide between London and the South East and the North of England is opening up.

Lucian Cook, the director of Savills research, points out that the London market operates on entirely different criterion from the rest of the UK.  Factors such as being a global financial centre and the draw that the prestigious central and west London properties have on wealthy international investors drive the London market.

If the conclusions in the Savills report prove to be accurate and the levels seen in 2007 do actually return, it will be to a wholly different market with wholly different purchasers.  The days of easy lending and cheap credit will be long gone.  First time buyers and aspirant second movers with little or no cash deposits and scant chances of obtaining a large enough mortgage to bridge the gap are driving the change in the shape of the housing market.  The lower levels of owner occupation, the rising levels of renting and shared ownership will demand a new raft of equity-rich investors to meet the demand.  The situation may afford an opportunity to foreign investors keen to take advantage of the structural change in the UK housing market.

This case is seen as a measure as to whether pre-nuptial agreements can apply to the law.  Lord Phillips, president of the Supreme Court, indicated that the courts will still retain the discretion to put aside such agreements if they are deemed to be unfair to any children of the marriage.

This ruling does not only apply to the extremely wealthy, it will allow people to ring fence their personal wealth when embarking on a second marriage thereby protecting their assets for the benefit of their children.  Wealthy individuals entering marriage with expectations of inheriting family wealth built up over generations or assets and wealth accumulated in a family business will be able to protect the "family silver" for the future.

This extremely significant decision has been hailed as a judgment fitting for a modern society.  The Law Commission is due to report in 2012 as to whether the law should be changed to fully embrace pre-nuptial agreements.

Jonathan Djanogly, the new Minister for Legal Aid, told the BBC that in his view it was unfair for parents to head straight to court simply because they weren't speaking to each other leaving the tax payer to pick up the legal aid bill of tens of millions of pounds a year.

Anthony Douglas, the Chief Executive of Cafcass, the body that advises the English courts in child related cases, commented in the Telegraph, "It really is not justifiable for warring parents to be using courts if they haven't tried everything to settle and communicate".

There are two separate reviews being carried out at the moment that may have a direct impact on this situation, one will look at the legal aid system and the other at the family justice system.  There is a distinct possibility that parents will be refused legal aid for their cases unless they have been seen to have tried to resolve their issues by other methods.

Whilst the Ministry of Justice says that no decision has been made regarding legal aid pending the outcome of the reviews it is fair to say that the coalition government is unlikely to allow squabbling parents to use the resources of legal aid until they have demonstrated that all other avenues to resolution have been tried. 

In a dispute stretching back to February 2003 when officials raided the Manchester offices of Akzo Nobel confiscating documents which Akzo Nobel contended were legal privileged communications between employees and its in-house counsel.

There was significant support across the European Union for Akzo Nobel in the shape of such organisations as the European Company Lawyers Association, American Corporate Counsel Association (ACCA) and the International Bar Association.

The CBI director for Competitive Markets, Matthew Fell said " We are very disappointed that the Court has not taken the opportunity to bring the 30 year old case law up to date and recognise the fundamental role that in-house lawyers play in competition law compliance".

The Law Society reaction voiced by Chief Executive Desmond Hudson "In-house lawyers are the front-line guarantor of compliance. It is sad that while the EU strives to legislate for higher standards of corporate governance and risk management, the decision of the Court in effect rejects this key tool in achieving this aim"

Sharon was in the enviable position of being able to choose which Dragon to support her business as they were all prepared to back her.  She chose James Caan and Duncan Bannatyne, being the two Dragons for whom she had the highest regard.  Sharon saw Caan as a kindly man with compassion and empathy.  The deal was that they would provide £80,000 and their business expertise in exchange for a 22.5% stake in her business.

A few weeks passed, no money or guidance had been forthcoming but two pre-contracts had landed on the mat which revealed that the £80,000 was a loan rather than a sum to be invested for a share of the company.  She considered pulling out but decided to go ahead.  By July she was close to the financial edge as her booming business had received such a boost by the television exposure that she had to take on extra staff despite being insufficiently funded.  Sharon was invited to a photo shoot in London after which the Dragons told her that the contract had to be signed.  Feeling that she was obliged to agree, regardless of her lack of legal representation, and as she was now desperate for the money Sharon signed the contract without legal advice.  Duncan Bannatyne had asked if she wanted to have her lawyer present but she simply thought that as they were considerably richer than her that they would not rip her off.

The first money finally arrived in late August but not before she had received a whopping great bill from a web design company recommended by James Caan for a re-design of her web page which Sharon had assumed was part of Caan's investment commitment.  Sharon received only £4,000 initially followed by a further £22,500 over the next few months.

It was only then that Sharon instructed her solicitor to look over the contract.  The size of her blunder was then revealed; to obtain their 22.5% stake in the business the Dragons had bought shares at a nominal fee of £1 per share effectively enabling them to buy nearly a quarter of the business for £29 together with the promise of a loan of up £80,000 interest free.  There was no money by way of investment and there was limited access to the loan which could be reduced by the Dragons at any point to a sum of their choosing.  The contract also stipulated that the loan was re-payable "as soon as the cash flow of the company permits".

Sharon was horrified to learn that she had also agreed to the Dragons charging her a fee for their expertise and the use of a PR company amounting to £3,000 per month.  She was then asked to take a salary drop from £50,000 to £12,000.  However the final straw was learning that one of the Dragons was to appointed chairman of the company and would have the casting vote on all decisions; she had lost control of her company.

Sharon's solicitor said it was the worst contract he had ever seen.  She managed to wrest her business from the Dragon's hands and regained full control the following January but not without a cost to both the business and her health.  Sharon has found another investor who has provided £100,000 in exchange for 10% of the business and allows her a free hand.

The golden rules in business are sacrosanct -ALWAYS READ THE SMALL PRINT and DON'T SIGN ANYTHING WITHOUT YOUR LAWYER PRESENT.

Pilkington, of the UK; Asahi, of Japan; Guardian, of the US; Saint-Gobain, of France conspired to fix the price of flat glass to car manufacturers and carve up the market between them.  The Competition Commissioner said the cartel "cheated the car industry and car buyers for five years in a market worth two billion euros in the last year of the cartel"

Volvo has instructed its lawyers to recover what has been described as "significant losses" suffered during the five years of inflated glass prices.

Similarly two flower importers who claim to have suffered losses due to the BA; Air France; KLM; Cathay Pacific; Cargolux; Quantas and Emirates, price-fixing cartel for air-freight services have instructed their lawyers to recover their losses from BA.

Often a will is considered when a person discovers that they are seriously ill and in no position to shop around or even do proper "homework" on the company they choose.  Even if this is not the case the deficiencies in the drafting of a will are often not revealed until some time afterwards.

Neil Hollingsworth of the Economic Crimes Unit of Lincolnshire police when commenting on the case of two fraudsters recently imprisoned for stealing hundreds of pounds from beneficiaries said: "A lot of the times, probably 90% of those cases, the beneficiaries didn't know they were beneficiaries and so they weren't asking questions"

With a ten percent share of the will drafting market in the hands of unregulated will-writing companies there is significant scope for exploitation by the unscrupulous.  The attempts at regulation by self-appointed organisations may be well intentioned and in some quarters there are examples of good practice but they are not supported by the law. 

The inescapable fact remains that solicitors have years of professional training; robust regulation by the Solicitors' Regulation Authority; are obliged to protect their clients with professional indemnity insurance and have an additional safety net in the shape of the solicitors' compensation fund if all else fails.  As opposed to will writers who can only assure their clients that they are competent.  Furthermore, solicitors bring, not only their expertise and meticulous attention to detail but can advise on other aspects that may have an impact on your estate such as the creation of trusts to protect your assets and powers of attorney where deemed to be necessary. 

The vast majority of people only ever make one or possibly two wills in their lifetime and therefore have no real way of judging the advice given in this emotive and complex area of law.  Individuals really are in the hands of their advisors making it vital that the advice is absolutely correct and their advisors are accountable.

The global crack-down on anti-competitive behaviour by Competition Authorities world-wide sees the imposition of colossal "deterrent" fines on organisations that flagrantly engage in anti-competition practices.

A recent High Court judgment seems to offer businesses a way to spread the load when they incur such fines.  The case relates to Safeway (now owned by Morrison) who participated in a dairy products price-fixing cartel and collected a fine of £16.7 million, later reduced to £10.7 million for co-operation with the OFT.  Safeway/Morrison has brought claims against former directors and employees for damages arguing that the directors and employees breached their employment contracts by participating in anti-competitive practises and not informing their superiors.

The high court ruled that directors and employers can be pursued for compensation by their employers if they were found to have been involved in anti-competitive behaviour.  This did not pass without challenge; the former employees argued that such a judgment was contrary to public policy and inconsistent with the competition regime.  Nevertheless the claim was allowed to stand and the court said that the public policy defence (where a person must not benefit from his or her wrong doing) would only stand if the organisation had directly endorsed the ant-competitive acts.

Furthermore, the court felt that employees and directors are duty bound to ensure that their employers are not in breach of competition law, concluding therefore that any penalty visited upon the employers could be reasonably passed on, by way of a claim for damages, to the individuals who perpetrated the breach.

Should Safeway/Morrison win the day it could make employees reluctant to divulge their knowledge of any anti-competitive acts during an OFT investigation for fear of being implicated personally and being landed with a damaged reputation and bank account.  This could lead to companies missing out on the leniency usually extended to the whistle-blowing company during an investigation.

Employers cannot afford to lose control of their staff at any level and a continuous and comprehensive training programme outlining legal obligations which apply to businesses should be part of their risk management programme.  With fines running into millions it is imperative to ensure that all staff fully understand, not only the law relating to anti-competitive practises, but the consequences and penalties that can arise from breaching the law.

Ms. Scott won an out of court settlement against Channel 5, acceptance of which has sealed her lips on her own case, but has not prevented her venting her rage and frustration on the malign situation she sees continuing at the heart of this esteemed and very British organisation.  Her own situation aside Ms. Scott contends that sex and age discrimination is meted out against women in a sly and at times almost unspoken and Machiavellian way (her words).  Rarely are the targets of this treatment told outright that they are not wanted but in an insidious campaign is mounted to undermine and diminish their confidence.

Sir Michael Lyons, chairman of the BBC Trust, the autonomous body set up to represent the licence payer, is the recipient of this particular hot potato.  It can be taken as read that Ms. Scott will have meticulously compiled a damning dossier and with 12 out of court settlements in the past and a string of similar claims to look forward to the BBC will ignore it at its peril.

All businesses must be on their metal since the beefing up of the discrimination laws.  There has been a surprising amount of successful age discrimination cases, despite the rather slow start of this type of case.  Also it is not acceptable, for example, to simply say that a 60 year old builder is no longer required in the work force merely because the work is hard physical work and the employer no longer wants him; a detailed explanation and justification as to why a particular employee is unsuitable is now called for.

This case has been trundling through the courts for the past six years with L'Oreal asserting that Bellure infringed their trademark by employing very similar packaging to that of L'Oreal and by telling customers that their product was the same as L'Oreal's.  L'Oreal relied on s 10 (1) (3) of the Trade Marks Act 1994 which states:

10. Infringement of registered trade mark

(1) a person infringes a registered trade mark if he uses in the course of trade a sign which is identical with the trade mark in relation to good or services which are identical with those for which is registered.

(3) A person infringes a registered trade mark if he uses in the course of trade a sign which -

(a) is identical with or similar to the trade mark, where the trade mark has a reputation in the United Kingdom and the use of the sign, being without due cause, takes unfair advantage of, or is detrimental to, the distinctive character of the repute of the trade mark.

The European Court of Justice found that Bellure's use of L'Oreal trademarks had amounted to a deliberate attempt to present their products as direct imitations of L'Oreal products.

Lord Justice Jacob, speaking with the concurrence of Lord Justices Wall and Rimer, stated that had he been free to make his own decision without influence of the European Court of Justice he would not have found in favour of L'Oreal, he pointed out that he is in favour of free speech, particularly when someone wishes to tell the truth regardless of whether that truth delivers commercial gain to the speaker.

His Lordship seemed to be saying that a truth itself should be protected and recognised and doesn't have to carry any high minded moral purpose or strong emotion.  Furthermore he suggested that the European Court of Justice ruling could be interpreted as being anti-competitive saying: "If a trader cannot (when it's truly the case) say: "my goods are the same as Brand X (a famous registered mark) but half the price", I think there's real danger that important areas of trader will not be open to proper competition."

Lord Justice Jacob also suggested that the decision placed this area of European law in conflict with that of other countries, the US for example, where trademark law would not be used to suppress truthful advertising and keep a product off the shelves in contravention of the basic right to freedom of speech.

The Court of Appeal judges were forced to comply with the ruling of the European Court of Justice when delivering a judgment in the case.  The judge's comments may very well open up further debate or possibly legal challenges as the matter seems far from clear.

It has been revealed that since its inception that almost 4,000 complaints have been received regarding its decisions.  However, when considered against the 23,000 cases it deals with every year it is a comparatively small number.

The first case to be reported is that of Derek Paravicini, a severely disabled virtuoso, whose talent on the piano had led him to be considered the most advanced autistic musical savant in the country.  Prior to the Court's decision yesterday the Official Solicitor from the Ministry of Justice looked after his affairs.  The Royal National Institute for Blind People contended that an independent guardian should be appointed for Mr. Paravicini opposing his family's request to make all his decisions for him, including controlling the number of times he should be allowed to perform.

Mr. Justice Hedley was "profoundly impressed" by the commitment demonstrated by Mr. Paravicini's family and decided that his parents and sister Elizabeth should be entrusted with his guardianship, believing that they were totally committed to the welfare of Mr. Paravicini and would protect him from commercial pressures.

Parents are advised to think long and hard about the question of guardianship and remember to update any decision if the chosen guardians' circumstances alter, for example due to the passage of time their age makes them less suitable.  Whilst there are few families with the complexities of Michael Jackson's family, it is clear that his mother aged 79 and even Diana Ross aged 65 may not have been the best choice of guardians simply because they may not have sufficient years of good health to be effective as guardians to such young children.  The question mark that hangs over the Jackson children's true parentage could mean that, should their appointed guardians not survive until the children themselves reach the age of majority, there could be a monumental legal battle for their guardianship and control of their finances.

One of the best ways of appointing your children's guardian is in a will as the financial arrangements are usually also included.  Equally important is informing your chosen guardians of your expectations with regard to your children.  Unless they are aware of your views they cannot really decide whether they wish to take up the responsibility; they must be given the opportunity to renounce their appointment whilst you can still choose an alternative.  Enshrining your wishes within your will and clearly setting out exactly how your children are to be looked after is essential for peace of mind.  These arrangements should always be reviewed from time to time to establish the continued suitability of all the provisions set out for the care of your children.

There are a host of things to consider when appointing a guardian and it cannot be emphasised strongly enough that sound legal advice should be sought in this most delicate area.

One thing is definitely sure, if you don't appoint a guardian and your children are orphaned someone else will and their decisions may not be the same as your decisions.

The Office of Fair Trading (OFT) handed out fines amounting to £225 million to Asda, the Co-operative Group, Morrison's, One-Stop Stores, Safeway, Shell, Somerfield and TM Retail.  Apparently the OFT felt there was insufficient evidence to pursue Tesco.

A senior OFT director stated "this enforcement action will send out a strong message that such practices, which could, in principle, be applied to the sale of many different products, can result in substantial penalties for those who engage in them".

The investigation has been going on since 2003 when Sainsbury's blew the whistle in exchange for leniency.  A tactic that worked as Sainsbury's has not been fined.  Asda, One Stop Stores, Gallaher, First Quench, Somerfield and TM Retail all received reduced fines for volunteering information early on in the investigation.

The lesson here seems to be that those involved in anti-competition activity, even something as blatant as price fixing, when caught out should own up immediately to reduce the eye-watering fines.

David Vaughan set the ball rolling when he applied to the court to terminate the payments to his first wife when he contemplated retirement, recommended following his heart problems and a stroke.  The first Mrs. Vaughan countered with her demand for £560,000 for the avoidance of hardship.  The deputy high court judge terminated the payments and rejected Mrs. Vaughan's demand ruling that the sale of some of her assets, which apparently include an antique desk valued at £300,000, together with her inheritance would provide an adequate income of around £48,000.  However, not only was this ruling was reversed by the high court, apparently it was also felt that Mr. Vaughan's pension pot that had been entirely built up with his second wife during his second marriage was fair game saying it was illogical to attribute half the pension pot to the current Mrs. Vaughan, although surely any other wife would be entitled to half such a pension pot?

The issue is clearly far wider than just the sums of money involved.  Decades ago the law sought to break the pattern of first wives' financial dependence on their former husbands, women who were capable of working were not automatically granted maintenance.  How many times and for how long can the first wife come again to the human cash machine ex-husband for financial support and  how long will second wives put up with having the family wealth which they help to build diminished by the first wife.

This case may have opened the doors to a flood of women who previously thought that too much time had passed to ever be able to tap their former husbands for money.

When Tesco acquired the One Stop chain it re-branded roughly half the outlets as Tesco Express and kept the branding for the remaining stores as One Stop.  Approximately 38% of One Stop stores happen to be situated in poorer areas and are subject to far less competition.  Hilary Shaw, an expert in food is economics, commented that the strategy Tesco employs with the One Stop brand is creating a vicious circle of under provision of healthy affordable food in poorer areas.

Tesco airily told the Competition Commission that... "We sell all our products on the basis of a national price list available for all to see on our website.  It is not our policy to vary prices by reference to location.  Our Express stores are on a separate national price list under which they sell products at an average of 2%-3% higher than our other stores because of higher costs"

All this would be fine if Tesco hadn't more or less air-brushed One Stop out of most of its communications only briefly mentioning its "Cinderella" company in its company report, as it legally has to.  It is not mentioned on the Tesco website and it has not been mentioned in any communication aimed at the stock market since 2005.  One Stop also appeared to slip Tesco's mind when compiling a submission for the Competition Commission inquiry; a separate submission for One Stop was provided despite a requirement by the Competition Commission framework to consider all brands owned by the same holding company as one.

This is precisely the type of situation that TMA Legal's Competition Law Lab has been set up to address.  Big powerful companies seem to think that they can flout the rules as they do not apply to them, relying on the belief that small companies do not have deep enough pockets to take them on.  However with the changes to the way class actions can be tackled may mean the big boys may be forced to think again.

Business rates are to be cut for a year from October, a small but welcome measure. 

The Government will place 15% more of the contracts that are their within gift with SMEs and will agree to pay 80% of invoices from small businesses within five days!  If only everyone paid within the week!

The Time to Pay scheme for SMEs with outstanding tax bills is to be extended for the entire term of the next parliament.

These are amongst the measures rolled out for businesses in the Budget

The Burberry revival some years ago, orchestrated by Rose Marie Bravo with the aid of Kate Moss, Christopher Bailey and Mario Testino, sometimes seems to have made an equal amount for the counterfeiters as for Burberry, once the brand was embraced by the soap stars and the footballer's wives.

It is important for luxury brands to protect their position in the market and not let cheap copies diminish their reputation and brand.

The young Louella Bartley's business has not so much fallen over as been pulled over by the demise of the Italian manufacturer Carla Carini on whom she relied to make her products.  Unable to fulfil the orders for her new range her main investor Club 21 withdrew its support.

Another fashion deity sunk, this time by debt, is Christian Lacroix.  The company has finally been forced to reduce the whole operation to little more than an administrative office with 11 staff retained to supervise the perfume and accessories licensing contracts.  The frantic search for a business saviour whilst the company was in administration proved fruitless, not really a surprise considering the losses running at £9.1 million, rumoured debts of 44 million Euros and the breathtaking announcement that the fashion house had not made a profit in 22 years.  A wealthy Middle Eastern investor was interested but was unable to provide the guarantee to support the project and another offer hit the buffers leaving Lacroix with little choice but to accept the ruinous restructuring plan.  The devastated seamstresses, Lacroix's "golden hands" have little chance of finding work at the same level in today's climate.

The Italian fashion house of Versace has been obliged to shed 350 jobs following a review conducted by the newly appointed CEO Giacomo Ferraris.  A more "root and branch" re-organisation will follow to sharpen efficiency and steady the company for future growth when the tide turns.  The Times reports Mr. Ferraris saying "trading conditions in the wake of the global financial crisis have been severe and the company expects to make a loss in 2009.  No organisation can allow a situation like this to continue".  The highly experienced Mr. Ferraris (former MD of Gucci and former boss of the Jil Sander Group) is wisely taking rigorous action before it is too late.

Clearly some brands have relied on their past glories and the assumption that their market would be impervious to the current economic climate has proved to be way off the mark.  The wake-up call is ringing round and the whipping into shape is starting, in some cases not a minute too soon.  The luxury goods and fashion world would do well to heed the words of Henry Ford "failure is simply the opportunity to begin again, this time more intelligently".

The Times reports that the Human Rights Watch based in New York is investigating the possibility that Marc Garlasco, a senior military analyst with the organisation, has brought the organisation into disrepute by his internet activity relating to his hobby of collecting war memorabilia, including that relating to Nazis.  Mr. Garlasco, whilst regretting some of the more immature postings, asserts that because the Nazi cause was so obviously evil it did not occur to him that his colleagues and friends may wonder about his interest in these things.

Employers have to be very careful when investigating and subsequently placing sanctions on an employee for their private activities; in doing so they may expose themselves to accusations of interference in the right to a private life.  It can be a tricky judgment between what is merely silly or embarrassing behaviour and what is truly damaging.  Clearly if an employee indulges in his or her interest in erotic materials during a lunch break this behaviour may upset or make their colleagues uncomfortable and may, in some circumstances, be observed by clients.

In order to be deemed unacceptable or damaging the hobby or behaviour should directly impact on the ability of colleagues or clients working with the employee or cause damage to the reputation of the business.  Max Mosley survived when his private activities entered the public domain as, despite the huge media attention and the questionable nature of his "hobby" it did not impact on his ability to do his job or taint the reputation of his employer.  The lawyer at a magic circle firm who published a highly erotic novel was deemed to have damaged the firm's reputation and was sacked.

Both employers and employees have to be careful in this area and should use a commonsense approach with clear guidelines to avoid possible misunderstandings.

The fine for trade mark infringement has been raised from 2,065 euros to a maximum of 25,000 euros, for design and patent rights infringement it has been raised to 35,000 euros whilst the maximum term of imprisonment for the same offence is now four years, an increase of one year with a three year maximum prison term for offences involving trade marks.  There has also been a significant uplift in the penalties for trading under a false trade mark or sign which is now punishable by a maximum of four years imprisonment and a fine of up to 35,000 euros.  Two additional offences have been introduced which relate only to food.

With £8 billion globally vanishing into the counterfeiters' pockets each year the scale of the problem cannot be underestimated.  It is truly a worldwide battle complicated by the fact that the economies of some third world countries are being shored up by such "black market" activities which, in turn, drastically erodes the economies of the more advanced countries. 

The voracious consumption of luxury brands in the western world is fuelled by a media that delivers the constant message that self esteem depends on the prestige of your possessions, thus creating a circle of desire that is often beyond the consumers financial capacity to fulfil which then fuels the counterfeit trade keeping the counterfeiters busier than the genuine brand manufacturers.

Some commentators are beginning to question whether certain words, concepts or scientific principles should be permitted to be copyrighted and "belong" to a person or organisation.  Ali Hewson's (Bono's wife) recent tussle with Stella McCartney over the word "NUDE" has raised the question of how anyone was allowed to lay claim to the word "NUDE" in the first place.  Ali's company Nude Brands Limited (NBL) holds a European Community Trademark over the word in capital letters and she sought an emergency injunction to prevent the launch of the perfume "STELLANUDE" of which £4.1 million worth of perfume had already been manufactured.  The injunction was not granted as the judge was not convinced that there would be sufficient brand confusion to justify the hold up to the launch as to do so would cause considerable financial damage to Stella McCartney Ltd.  A full trial is expected.

A similar situation appears to be playing out in the Porsche versus Crocs battle.  It would seem, to put it mildly, even less likely to be brand confusion between these two brands!  Porsche objects to the "Cayman" aspect of the branding of Crocs believing there to be an infringement as they have "Cayman" branding on one of their range of cars.

Sometimes people change their minds.  The mathematician Sir Roger Penrose, an Oxford professor, had created an aperiodic tiling pattern for fun (aperiodically is an area of mathematics that is beyond the calculation powers of computers, all the calculations have to be done the hard way) and the resulting unrepeating pattern, previously thought to be a scientific impossibility, is known as the Penrose Tilings.  Fortunately once he had demonstrated that is was possible to create such a pattern he had it copyrighted.

The professor was more than miffed when sharp eyed Lady Penrose returned from the supermarket brandishing Kleenex toilet rolls embossed with his unrepeating pattern.  He promptly sued Kleenex winning a satisfactory out of court settlement.  This, however, was the same Sir Roger Penrose who, when prominent scientists copyrighted two large prime numbers, commented somewhat resentfully that science was for all.

It is difficult to see at this stage how there can be change as it may be seen as unfair to restrict branding.  No-one would like to see an individual or a business lose out on an opportunity to exploit an original concept that they have invented or developed especially if the brand has been hi-jacked by another company.  Judges are increasingly asked to make decisions on the likelihood of the public confusing brands that have no relation to each other, after all most people can tell a car from a pair of plastic shoes.

On the collapse of her marriage to Peter Sellers Lynne Frederick, the fourth wife of the brilliant but troubled comic genius, was prepared to accept a one-off payment of £375,000 and a property in Los Angeles, presumably recognising that she was fortunate to receive such a sum following a turbulent three year childless marriage.  The settlement document was signed by both parties but the decree absolute had not been granted before he died thereby nullifying the settlement document.

It would appear that the marriage had not got off to a good start as the besotted Sellers, 30 years older than Ms Frederick, had apparently been coerced by his manipulative young wife into severing ties with his children.  It is widely believed by his remaining friends and family that the price to keep Ms. Frederick by his side when she threatened to leave him was to leave his fortune to her in his will.

The short marriage broke down relatively quickly and the couple separated.  When the ill-fated marriage finally ground to a halt and the divorce negotiations were going forward Sellers had a new will drafted cutting Ms. Frederick out of his will completely.  He was due to sign the will the day he collapsed and died.  His untimely death placed Ms Frederick in the position of inheriting widow.  She claimed his £4.5 million estate together with his worldwide properties and the royalties to his films.  His children, however, inherited a mere £750 each.  Lynne Frederick denied any knowledge of a clean break settlement adopting the role of the grieving widow.  Both Spike Milligan and Anne Sellers, Peter Sellers first wife, appealed to Ms. Frederick to share the inheritance with the children but she refused saying Peter had intended her to inherit, something that the terms of the divorce settlement document proves to be highly unlikely.

Peter Sellers' children were unable to challenge the will as they had not been left out.  Following Ms. Frederick's own early death due to alcoholism her daughter, who never met the man who created the wealth, inherited the entire fortune.

This is a sobering example of how important it is, should your circumstances change, to act swiftly to address any legal issues as a matter of priority particularly in the area of inheritance.  It is highly recommended to review your will with your lawyer every couple of years to make any adjustments that may be necessary, for example children who were minors when the will was drafted may no longer be so or there may be beneficiaries who have pre-deceased you.  It may very well be that Peter Sellers' children were ill-advised or unable to bear the cost of a lengthy legal challenge, nonetheless for whatever reason it seems that a just settlement eluded them.