JOIN THE NEWS OF THE WORLD EMPLOYEE ACTION GROUP!

We have recently been contacted by a number of very concerned News of the World employees …or should we say ex-NoTW employees.

Rocked by yesterday’s shocking developments, News of the World employees are now not only acutely concerned for their immediate future, but are also distressed about the potential long term career damage that may suffer by being, as they see it, unjustly tainted by the acts of others.

News of the World employees are angered that they are effectively being scape-goated and punished when they have done no wrong.

Since they do not consider themselves to be at all responsible for the circumstances giving rise to the closure of the title, they are concerned to investigate the potential to claim Stigma Damages equivalent to those awarded in the BCCI litigation.

In response we have set up the News Of The World Employee Action Group, to provide co-ordinated and affordable support, advice and guidance for all News of the World employees through what will certainly be a troubling and distressing time for all concerned.  The initiative has been featured in The Lawyer and in The Financial Times.

If you are a News of the World employee, please register your interest now.

For an initial confidential conversation, without charge, please contact either:

Martin Donoghue       mdd@silvermansherliker.co.uk
Nicholas Lakeland     ncjl@silvernamsherliker.co.uk
Victoria Russell           vjr@silvermansherliker.co.uk

Tel: 020 7749 2700
www.silvermansherliker.co.uk

I have had a run in with PC World.

They will not replace a faulty computer.

PC World, I note from my internet research today, has been described by others as ‘Like Hell, but with worse customer service.’

I cannot say whether this is true as I have not yet had the pleasure  of visiting Hell, but my experience of PC World in Charlton has reduced me to an infernal despair.

It appears from my web research today that I am not alone in my despair. In the hope that it may assist others, here is the text of my letter before action I have crafted to the MD of DSG Retail who own PC World, and, I believe, Currys.

Take due note that under the Sale and Supply of Goods to Consumers Regulations 2002 consumers have a RIGHT to require EITHER repair or replacement…so do not be fobbed off with a compulsory repair policy.

PC World is not so PC, after all, in my experience.

So here goes….

——————————————————————————————————————————

Mr Stephen Campbell
Managing Director
DSG Retail – PC World
Maylands Avenue
Hemel Hempstead,
Herefordshire HP2 7TG

Dear Mr Campbell

PC WORLD – CHARLTON STORE- FAULTY TOSHIBA LAP-TOP
SATELLITE C660-130 | PART No: PSC0QE -00500CEN  |  SERIAL No: XA295426K

We represent Mr C J Sherliker, who purchased the above Toshiba lap-top from your store, PC World Charlton, South London in December 2010 as a Christmas present for his son who needed, and still needs, the lap-top in connection with his studies.

It has never worked properly.  It will not turn on. It never reaches the end of it boot up cycle. The machine turns itself off after 30 seconds. The screen remains black.

Our Client has twice requested an in-store credit and twice been refused.  We regret having to trouble you in this matter. You, no doubt, and we, have better things to do, but if you could do what you can to bring some reason to bear in this matter and ensure that PC World complies with its plain statutory obligations, it would be appreciated.

The legal position is simple. Under the Sale of Goods Act 1979, as amended, our client has a right to be compensated if the goods do not conform to description, or are not fit for purpose or are not of satisfactory quality. PC World, as seller, has an obligation to replace or repair the goods within a reasonable time. You have twice failed, on request, to replace the goods and, further, you have failed to repair the goods within a reasonable period time. Further, under section 48A(1) of the Sale and Supply of Goods to Consumers Regulations 2002 our client, dealing as a consumer, has a right to require PC World to repair or replace the goods. Our client now exercises that right. Unless the goods are replaced or a full refund offered within 14 days from the date of this letter our client will have no alternative but to commence proceedings. Sadly, this appears to be the policy of your company. We would observe that it  is not a winning policy.

The facts of the case, should you be interested, are as set out below.

The machine will not turn on. In January 2011, the machine was returned to store and a replacement machine, or a refund, was requested.  In contravention of our client’s rights under  the Sale and Supply of Goods to Consumers Regulations 2002, the Service Desk at PC World, Charlton, declined to do either, and insisted that the machine was picked up by TechGuys to be checked and for the ‘fault’ to be ‘repaired’.

Our client asked to discuss the matter with the manager but was told that it would make no difference because the machine fault would still have to be investigated before the store would consider a refund. Reluctantly, our client agreed to this procedure. In retrospect, our client should not have agreed to this procedure. In doing so, he was acting reasonably and not insisting on his clear statutory right. Our client does now insist on his statutory right.

The machine was picked up from these offices on 25^th January and returned some days later. The machine booted up twice but then reverted to the previous fault. It has not worked since.

On Sunday 12^th June, the machine was again taken back to store. A replacement machine or a store credit was again requested. Again, contrary to our client’s right to an immediate replacement under the Sale and Supply of Goods to Consumers Regulations 2002, the Service Desk at PC World, Charlton, informed our client that, due to the fact that the recurring fault had not been reported within 7 days after the return of the machine from its previous services that it would have to be picked up by TechGuys yet again for investigation and repair. Such conduct on the part of PC World is, quite simply, illegal. Our client is no longer prepared to tolerate such treatment.

Given that the lap-top was manifestly faulty on sale and, further, that TechGuys had been given ample opportunity to remedy the fault but had signally failed to do so, our client understandably sought to insist on a replacement or  at least a full store credit. Contrary to our client’s plain statutory rights under the Sale and Supply of Goods to Consumers Regulations 2002, our client was informed by the instore Service Desk at PC World, Charlton, that ‘only TechGuys could authorise a store credit’ and invited our client to call them from the Service Desk phone. Our client did so and discussed the matter with TechGuys and with PC World Customer Service for over  45 minutes.

PC World Customer Service requested to speak with the Store Manager,  advising that a request for a store credit or replacement based on the fact that the machine was not of reasonably satisfactory quality within the meaning of the Sale of Goods Act 1979 was a matter for the ‘discretion of the Store Manager’. We regret to inform you that the discretion of the Store Manager at PC World does not prevail over the will of Parliament. The Assistant Store Manager came to the phone and discussed the matter with PC World Customer Service. He then went to fetch the Store Manager who introduced himself as Vincent but refused, as a matter of company policy, to provide our client with his surname.

Notwithstanding that the machine was faulty on sale and, further, that TechGuys had failed to remedy the fault, the Store Manager, Vincent, refused either to give a store credit or a refund, contrary to our client’s statutory rights under the Sale and Supply of Goods to Consumers Regulations 2002. Given the delay in reporting the failed repair, he said, he must insist that the machine should again be returned to TechGuys for  further investigation and repair.

We would draw your attention to the fact that this machine was faulty when sold and, very soon after prompt investigation and repair by TechGuys, as agent for PC World, it developed exactly the same fault again. It is quite obviously not of satisfactory quality and unfit for purpose and, at the date of writing, remains so. PC World has been given a reasonable opportunity to repair it and has failed in this endeavour.  In these circumstances, we find it difficult to comprehend why the Store Manager, Vincent, did not immediately agree to replace the machine or provide a store credit but he did not. Instead, he invited our client to pursue his statutory rights by means of court proceedings. The customer service policy of PC World amounts to ‘See you in court’.

We would like to place these facts on record and also the fact that, again, our client has arranged for the lap-top to be picked up on Tuesday 14^th June for ‘repair’ by TechGuys. Our client does so without prejudice to his statutory rights in this matter.

To summarise. Our client bought a Toshiba lap-top that did not work from PC World, Charlton.  Without prejudice to our client’s right to have the machine replaced under the Sale and Supply of Goods to Consumers Regulations 2002, our client provided PC World with an opportunity to ‘repair’ the machine. They failed. Our client has on two previous occasions requested a refund or an in-store credit but has been refused on each occasion.

Our client now seeks a full cash refund of the price paid for this lap-top pursuant to his rights under the Sale and Supply of Goods to Consumers Regulations 2002, and will if necessary pursue formal proceedings to ensure that this is done.  In any such formal proceedings, we will be calling the Service Manager, the Assistant Store Manager and the Store Manager from PC World Charlton to give evidence and will be seeking an award of costs on an indemnity basis.

In those circumstances, we will also be bringing the matter to the attention of the local Trading Standards Office with a full report of the facts of this case and a request that the outright and determined manner in which PC World seeks to avoid its statutory obligations should be investigated forthwith.

We will revert to you in due course as to how we intend to proceed in this matter but, if in the meantime, you could intervene to bring an end to this tiresome charade and provide our client with a Toshiba lap-top that actually boots up and functions as a lap-top, it would save us all a lot of time and money.

CC: The Manager
PC WORLD,
Unit E, Stone Lake Retail Park
Charlton
London SE7 8LU.

—————————————————————————————-

I will let you know what transpires…..

The Law is an App.

At least, trade mark law now is…

Three days ago, we launched our first mobile application for iPhone and Blackberry:  NameSearch TM Legal.

If you are reading this on an iPhone or BB, you can download the App free from the above link.

You can also read the review in the AppStore.

NameSearch TM Legal helps you protect your trade marks, business names, product names, logos and brands and is designed as a resource tool for brand consultants, creative agencies, designers, NPD specialists, marketing executives and entrepreneurs.

In addition to a constantly-updated feed on what’s happening in the world of brands and marks, you can also request free trade mark search reports on the legal availability of business and product names and free legal advice on names, logos, trade marks and brands from the IP Team at Silverman Sherliker LLP.

You also have the full text of the UK Trade Marks Act 1994 at your fingertips.

The journey from the dawn of the initial idea to its eventual launch in the Appstore has been a long and formative one and, like most journeys, it has taught me quite a lot.

This is what I have learned.

Lesson 1: When you want to generate a new idea …go large.

There are a lot of iPhone applications about trade marks and ‘matters legal’ but a lot of them just replicate legal statutes and provide very limited functionality. They are stuffy. They are basically just adverts.

I wanted to create a really useful tool for anyone involved in branding, trade marks, name creation, design, NPD or business start-ups. Something that would enable busy creatives and entrepreneurs to clarify the legal availablity of new trade marks, brands and designs ‘on the hoof’, as it were …in a taxi, at the water-cooler, from the white-hot centre of the brain-storming session. In short, I wanted it to deliver  something of real value for the creative and entrepreneurial community.

So what about an app that enables anyone in the world to request a free trade mark search and get an initial professional assessment of the results from their iPhone or Blackberry?

Okay. That’s not bad.

But what if people could also request free legal advice on branding and trade marks as well and request a fee quote for the registration of their chosen mark at the same time?

Better.

What about logos, graphics and designs? Could people take a quick snap of the logo or graphic with the iPhone camera and upload it from the app into our CRM database for immediate legal evaluation? ……er, yes….

So I think this is the most important part of the process.

Get excited. Ask yourself what would be the best thing you could possibly create…and then keep adding stuff.

Be demanding of yourself …and keep demanding.

Keep on asking yourself …. ‘Why not?’ …and ‘What if?’

So could we have improved on the first version of the app that we submitted to Apple?

Yes, we most definitely could. In fact, it was the initial and disappointing rebuff from Apple (more below) that drove us on to produce what we now think is a really fantastic application.

We hope that you will agree.

Lesson 2: Choose a good, professional iPhone App developer

Come on, guys! …We are lawyers, not tekkies!

Don’t skimp on the choice of a good developer.

Don’t just settle for the cheapest offer on eLance from Timbuktoo.

It makes much more sense, in my opinion, to pay the premium for having a good local developer who you can brief face-to-face and who is reasonably near to home when a few home-truths need to be shared. They will have a better understanding of your business and what you are trying to do if you can discuss the project with them across a table and they will probably come up with a much better look-and-feel for the new application as a result.

Include them in the conversation right from the beginning. What seems impossible and expensive to a work-a-day lawyer suddenly appears to be do-able.

I can whole-heartedly recommend my friends Ankush and Jason at PolydiamInfosoft. They are extremely dedicated and client-centric folk and showed great patience and fortitude in bringing this new app into being.

Great guys.

Lesson 3: (the big one) Never Give Up.

My Twitter friends know that this is a recurring Churchillian theme of mine and will forgive me. But there will be bumps in the road in any project. Sometimes they are big bumps that throw you off the road completely. We ended up in the proverbial ditch in March on this one:

The gestation period of this app has been 6 long months rather than the intended 2 months. The idea was conceived early one morning in December 2009, whilst shaving. I get a lot of good ideas whilst shaving. Developers were appointed and briefed in late December and we anticipated a launch in February. In fact, it was March 2010 before we were first in a position to submit the fledgling app to Apple Inc for assessment for inclusion in the AppStore.

Now, Apple Inc became very skittish in March 2010 for some unknown reason and suddenly started rejecting perfectly good applications on the flimsiest of pretexts, at least this is what I have managed to glean from various sources.

In short, our application was rejected because it, and I quote, ‘did not make full use of the available iPhone functionality’.

Well, stuff you, Duckie!

We found ourselves in the proverbial ditch.

So we went back to the drawing board with our developers, who were as frustrated as were we, and we started to build an even better application.

We incorporated the full text of the UK Trade Marks Act 1994.

We built in an RSS blog feed so that we could now offer bloggers on branding and design a further outlet for their blog-posts. We included a Twitterfeed.

We refined the back-end CRM databases to enable us to communicate with our enquirers by email and by SMS.

We upgraded the graphics and revisited the screen designs and the copy.

We resubmitted on June 9th and were notified of the inclusion of Namesearch TM Legal in the AppStore on June 15th….and great was the celebration.

In its first 3 days, and without any advertising apart from a few tentative tweets on Twitter, we have scored 164 downloads of our new application worldwide.

Interestingly, many of the initial enquiries are from Canada and the US so we will immediately be setting up a  referral conduit to our trade mark affiliates in those countries to handle those enquiries effectively.

NB: Don’t Miss Your Blog Opportunity

We are also looking for relevant blogs on marketing, branding and design to include in the application’s RSS feed so if you would like your blog included please do get in touch with me as soon as possible and we can help get you an increasing, targetted readership for all of your blog-posts.

Just email me at cjs@silvermansherliker.co.uk. We can include your blog in the Namesearch application within a few seconds and would be delighted to extend this courtesy to you. Don’t be shy!

May all your ideas be big ones.

I look forward to meeting you in the ditch.

(NB: NameSearch TM Legal has recently been updated for iPhone 4 and is available for download from the Appstore and from out new Trademark Registration web-site launched on 20th May)

Chris Sherliker

@London_Law_Firm
cjs@silvermansherliker.co.uk
Tel:  +44  (0)20 7749 2700

Silverman Sherliker LLP, 7 Bath Place, London EC2A 3DR

 HR Expert, David Thompson, has joined Silverman Sherliker to head up Silverman Sherliker Specialist HR Services, a dedicated HR Specialist service

The service will provide front-line HR advice and resources to complement the legal services offered by the firm’s extremely busy employment team.  
 

Innovative Client Benefit

Senior Employment Partner, Nicholas Lakeland, explains how this innovative step will benefit clients:

“Silverman Sherliker can now provide an integrated and complete HR Service thus assisting clients with practical advice and on site assistance whilst also being able to offer Employment Law advice as and when required. Our HR consultants are available to undertake regular weekly or monthly first-line human resources support on a retained basis or to deal with on one-off projects as may be required.    The services are flexible and can readily be tailored tosuit a client’s requirements.”

A Wealth of Experience

During his 23 years HR career with Barclays Bank, Dave Thompson has acquired a wealth of hands-on HR experience in successfully dealing with contentious and non-contentious HR-related issues.  Dave progressed through the branch network to Operations Management where he quickly gained a reputation as an effective troubleshooter, turning negative situations around through a combination of re-motivating employees and bringing good disciplines to the workplace. From the London Regional HR team, he progressed to Employee Relations Manager in Barclays’ Head Office and also spent two years as a Project Manager for Employee Development and was responsible for implementing Recruitment & Assessment Centres. 

Dave explains the service that he now heads up at Silverman Sherliker Specialist HR Services :

“I am excited to be offering a seamless professional service to businesses of all sizes, backed by Silverman Sherliker’s legal expertise.  We offer a standard HR package to small, medium and larger employers.  Our range of services includes:
 
·        Absence Management
·        Guidance on issues involving incoming employment legislation
·        Assessment & Development Centres 
·        Avoiding Employment Tribunal Claims 
·        Disciplinary & Grievance procedures
·        Employee Attitude Surveys & Employee Relations
·        Managing line managers and personnel to improve attendance
·        Organisational, Employee and Management Development 
·        Record Keeping/Monitoring
·        Psychometric testing, CV and  reference verification  
·        Restructuring and Redundancy
·        Salary Reviews
·        Terms & Conditions of Employment
·        Training Team Leaders on employment related issues.”
 
For further information please contact Dave Thompson on dt@s2hr.co.uk  or Nicholas Lakeland on ncjl@s2hr.co.uk  or call +44 (0)20 7749 2700

As I was dancing an idle fly across my corruscating Twitterstream a few days ago, I hooked a tweet from @idealawg on mindfulness for lawyers. It struck a chord. I RT’d it immediately with a deft roll-cast, thus:

The University of Miami Law School is teaching law students the art of mindfulness for lawyers  offering its students what it calls ‘a robust contemplative practices offering’ and, a few days ago, The Florida Bar News publicised a Mindfulness Program designed to help lawyers to ‘live in the moment’ on the thesis that contemplative practices for lawyers are key for the effective study and practice of the law.

The originator of this tweet, Stephanie West Allen, JD a US lawyer an advocate of the practice of mindfulness for lawyers, asserts that in the law, as in ‘any field in which it is important to understand, predict or influence human behaviour, neuroscience will play an increasing role’.

This should not be a surprise. The pressures of legal practice are huge and teaching lawyers to wake up and smell the coffee in terms of developing the necessary mental,emotional and psychic resources to succeed (indeed, to survive) appears to be becoming a burgeoning new industry in the US with progams such as The Mindful Lawyer and recent publications like The Six-minute Solution: A Mindfulness Primer for Lawyers(apparently sold out!). This development echoes, in the sphere of legal practice, the more populist philosophy of Eckhart Tolle in books like The Power of Now: A Guide to Spiritual Enlightenment and Practising the Power of Now.  I expect we will be seeing more of this kind of thing shortly in the UK. We certainly need it.

Mindfulness or an ability to concentrate is the single, most effective life-skill of any practising lawyer. However, the depth and quality of concentration demanded by modern-day legal practice goes far beyond the commonplace. It does, I think, demand a special kind of mental training.

Lawyers are required to define and re-define complex goals, both for themselves and for their clients; they must, steadfastly and continuously, avoid distraction in spite of a constant plethora of interruption; they must set and re-set work priorities, often on an hourly basis; they must, instantly and constantly, identify relevance and eschew irrelevance; they must be able, often and at short notice, to draw deep on their mental and emotional reserves. Legal practice in the 21st century requires a very high level of mental acuity indeed.

These abilities, referred to, in part,in the Mindfulness for Lawyers program as ‘Jurisight’ and verging on the Siddhis of occult Vedanta, are not the natural fruit of traditional legal training. Indeed, the development of these abilities demands incredible mental stamina, a high degree of emotional intelligence, acute insight bordering on the visionary and a depth of awareness that is characteristic rather of the Zen warrior, the religious ascetic or the contemplative devotee, than of the work-a-day, jobbing lawyer.

Whilst the lawyer coaching industry gathers pace, ultimately it falls to individual practitioners to equip themselves for the exigences of professional life. A good start is to become acquainted with techniques of basic time management as expounded in books by Mark Forster such as Get Everything Done and Still Have Time to Play and Do it Tomorrow and Other Secrets of Time Management and, if up for the elephantine battle that it entails, wrestling with some more esoteric works on developing the power of concentration such as Concentration and Concentration: A Guide to Mental Mastery by the Hindu acsetic, Mouni Sadhu. For de-stressing New York style Meditation in A New York Minute: Super Calm for the Super Busy.  And see Mindfulness Meditations for Management The Mindful Leader: Ten Principles for Bringing Out the Best in Ourselves and Others.

It is really not surprising that the profession should be turning to the annals of neuroscience and religious asceticism for urgent help, for urgent and inspired help is certainly needed.

Not for nothing is mindfulness and an ability to concentrate a corner-stone of personal and spiritual development in all the great religions. ‘If therefore thine eye be single, thy whole body shall be full of light,’ advocates the Apostle Matthew (Matt 6:11) and, in the Hindu epic, the Mahabharata, the warrior archer Arjuna is taught by his guru Dronacharya that, to hit the distant bird with his arrow, he must see, not the sky, not the tree, not the branch, not the bird, but only the minute scintilla of sunlight reflected in the black centre of the very eye of the bird.

Such is the degree of intensity of concentration demanded by modern legal practice and those who lack it simply flounder.

Finally, for those who do find it difficult to concentrate on one thing at a time - remember the Ancient Chinese Proverb:

 ’ If you chase two rabbits, both will escape’ …..or go hungry.

Not anymore. Yesterday, Sir Michael Burton made a ground-breaking ruling in the UK Employment Tribunal that the claimant’s “green beliefs” deserved as much protection in the workplace as that accorded to religious views. 

But when does a belief become ‘a philosophical belief’ of the kind that may give rise to a discrimination claim?

Nick Lakeland was interviewed live recently on Candian Radio(the Dave Rutherford Show) and you can hear the entire interview  here.

Tim Nicholson claimed that he was unfairly made redundant from his position as Head of Sustainability at Grainger (apparently the UK’s largest residential landlord) and that he was discriminated against because of his beliefs about man-made climate change.

There seems little doubt that Mr Nicholson’s views were strong and sincerely held. He had changed his own life-style to fit his “green beliefs” by no longer travelling by air and also by making his home eco-friendly. He had lodged complaints about his employer flying an employee to Ireland and back just to pick up his BlackBerry that he had forgotten on a business trip and claimed that the firm had failed to execute its documented Green policies. On this basis, he alleged that he had been discriminated against unfairly.

Sir Michael Burton ruled that: “If a person can establish he holds a philosophical belief based on science as opposed, for example, religion, then there is no reason to disqualify it from protection.”

He went on to say that, “a belief in man-made climate change, and the alleged resulting moral imperatives, is capable, if genuinely held, of being a philosophical belief for the purpose of the Employment Equality(Religion or Belief) Regulations 2003.”

Throughout the case  Grainger maintained its position that Mr Nicholson was fired because of “operation needs during a period of extraordinary market turbulence.”

This ruling is bound to encourage many more discrimination claims by employees who feel that they have been treated unfairly because of their ‘philosophical beliefs’. 

What is next one might ask? Protection for vegetarians, re-cycling fanatics, social networkers, conspiracy theorists, flat-earthers…perhaps even Jedi knights?

There is no financial limit to a compensation claim for discrimination on grounds of philosophical beliefs….Employers be warned!

This is a non-exhaustive 50 point checklist designed to help you avoid some very common legal pitfalls and maximise the legal security of your business.

1. Make sure that legal ownership assets used in the business are actually owned by the business.
2. Get written copyright assignments from designers, authors, software and web developers and appropriate warranties of originality.
3. Check the terms and conditions of third party suppliers of services to ensure you legally own any deliverables they create.
4. Do not rely on a terminable licence for key business assets; take an assignment or a perpetual royalty-free licence.
5. Always negotiate when taking or granting a licence (term, option to renew, notice period, warranties, conditions etc).
6. Make sure new shareholders assign the assets that they are bringing to the party to the business as a condition of the issue of their shares.
7. Check every name, trademark, slogan and design you use to ensure it does not infringe any third-party rights.
8. Do not use a name, slogan or logo without filing a registered trademark application.
9. Check the patentability of your inventions before disclosure or marketing.
10. Patent your novel inventions if patentable.
11. Register your designs as UK or EU Registered Designs.
12. Insist on non-disclosure agreements as prelude to deal negotiations.
13. When buying, consider milestone payments and a retention.
14. When buying, obtain contractual warranties and indemnities from sellers.
15. When buying, carry out as much due diligence as is possible.
16. When selling, get deferred payments guaranteed or secured.
17. Agree terms of ’soft’ loan capital up-front to avoid sudden repayment demands by investors.
18. Consider weighted voting rights for business founders who go below 50%.
19. Ensure shareholders, employees and consultants agree non-compete obligations.
20. Ensure post-termination non-competes are reasonable and enforceable.
21. Protect customer-base and goodwill by including non-solicitation obligations in employee contracts.
22. Protect investment in staff by including non-poaching obligations in employee contracts.
23. Impose strict confidentiality obligations on people involved in the business.
24. Ensure confidentiality obligations continue after termination of involvement.
25. Draw up an appropriate Shareholders Agreement for multiple shareholders.
26. Consider list of ‘reserved issues’ requiring unanimous shareholder consent to implement.
27. Do business under your own clearly-drafted standard terms and conditions of business.
28. Bring your terms and conditions to the attention of customers before they commit to buy.
29. Make share ownership by partners and staff subject to performance criteria.
30. Provide that employee shares vest over a reasonable period of time.
31. Make employee shares subject to sell-back obligation if they leave for any reason.
32. Provide a procedure for the fair valuation of shares of leaving employee.
33. Encourage employee loyalty by providing for nil value on share buy-back in first 2-3 years.
34. Consider discounted (or nil) value for shareholder employees dismissed for breach or wrongdoing.
35. Control the ability to sell the business by imposing ‘drag-along’ terms on minority shareholders.
36. Consider share purchase assurance to buy back shares of deceased shareholder from the estate.
37. Consider a contractual dispute resolution procedure to avoid dead-lock or formal proceedings.
38. Build business value by obtaining written contracts with customers and clients.
39. Consider minimum term commitments from customers and clients and long notice period.
40. Register under the Data Protection Act if applicable.
41. Negotiate favourable written agreements with all suppliers.
42. In supplier contracts, seek exclusivity, initial minimum term, renewal rights and long notice period.
43. When granting exclusivity ensure minimum performance criteria as a condition of such exclusivity.
44. Consider legal expenses insurance and After the Event Insurance when engaging in legal proceedings.
45. Ensure your business operates within its industry standards and applicable statutory framework.
46. Agree an appropriate Grievance and Disciplinary Procedure and stick to it.
47. Do not terminate any contract of employment without taking legal advice.
48. Never rely on a calculation or valuation carried out by accountants that are being instructed or paid by someone else.
49. Always seek a personal guarantee of payment or performance from principals of an SME business.
50. When dealing with a group of companies, seek guarantee of payment or performance by holding company.

              …..and never give anyone a signed, blank cheque.

 Email to discuss any of this: cjs@silvermansherliker.co.uk

Lots in the news today about everyone having to work longer before getting their State Pension.

Not entirely unexpected as the present Government has already laid plans to make us struggle at the coal face until men hit 66 and women 65.

But that was all before billions were paid to shore up our banking system and the next Government, of whatever hue, is going to have to deal with a massive black hole in the country’s finances. Pensions are one of the biggest problems (and don’t get me started on workplace pension schemes – a topic for another day!).

It was perhaps inevitable that the day of reckoning for state pension age was going to come sooner rather than later.

Ultimately, the one thing we all fear is an impoverished old age. Depending on the State to provide us with anything other than the most basic provision is simply unaffordable and the UK is not alone in facing what has been called the ‘demographic time bomb’. As medical knowledge improves, we are all living longer and someone has to pick up the tab for pensions having to keep us for perhaps 20 or 30 years AFTER we retire.

In 2005, Lord Turner (now the Chair of the Financial Services Authority) recommended to the Government that the state pension age has to rise if we are going to be able to provide any sort of half way decent pension. He has now been quoted as saying that if he was writing his report today, he would be suggesting a retirement age of 70 and that within the next 20 years or so. The word on the street is that he will be asked by a future Conservative Government to review the state pension system again. I’m not taking bets that he would move away from that position!

And the lesson to take away from all this? Don’t depend on the State to provide you with a comfortable old age. If you have access to a workplace pension (with all their faults) take it, especially if your employer is paying a contribution on your behalf. Failing that, start saving for that long rainy day…

The High Court in London willingly concludes that UK legal proceedings can validly be served….by Tweet!

Already dubbed the Blaney Blarney Order, a UK Court held yesterday that an injunction restraining a Twitter imposter posing as an established Twitter blogger and right-wing political commentator could be served on the impostor using Twitter. Seasoned Tweeters like @London_Law_Firm will just shrug and say “So? …Why not! Perfectly sensible”.

After all, legal proceedings may be served by email and by fax.

It is amusing that a social web medium with such an inconsequential name as ‘Twitter’ should so quickly become a recognised part of the social and legal fabric of society and enshirined as such By Order of the Court!

If you do ever get served with legal proceedings by Tweet …just think what fun you will be able to have by RT’ing them and inviting comment and support on the Twitterfeed….and will such publicity and public comment prejudice any future hearing in the matter?

Web 2.0 has not quite got its head around the ’sub judice’ rule, its seems.

Was the possibility of ‘Trial by Tweet’ actually considered in this case?

We feel another legal Twecedent is begging to be set!

As of Monday, injured feelings will cost UK employers a lot more!

Employees who are unfairly dismissed, particularly in discrimination cases, often get an ‘injury to feelings’ award.

The case establishing the principle was the well-known 2005 case of Vento -v- Chief Constable of West Yorkshire Police.

There has been considerable debate since 2005 as to whether an ‘injury to feeling’ award should be index-linked to allow for inflation. Employment Lawyers have assumed they should be and their views have been confirmed in the Employment Appeal Tribunal case of Da’Bell -v- NSPCC which has just been decided in past 2 days.

The compensation bands for ‘injury to feelings’ award are now :

• lower band:     £ 6,000
• middle band:  £ 18,000
• upper band:    £ 30,000

So employers should be very careful not to upset anyone.

Conversely, if you do get fired…..make sure you are really upset about it!

This developmentshas significant ramifications, not just for those currently fighting tribunal claims but also for those who are advising on compromise agreements where an element of compensation is being ascribed to injury to feelings.

Clearly there is now a lot more to fight for!

As this judgment has been handed down, it has immediate effect despite the transcript not yet being available.

At Silverman Sherliker, we specialise in giving good, timely, business legal advice. Entrepreneurship is in the DNA of the firm. Our clients like that approach.

Getting good business legal advice is easy but you do need to ask for it and, most importantly, you need to ask for it EARLY. So whether it is a new start-up, a commercial investment or a new collaborative initiative -get yourself over here as early on in your project as you reasonably can.

As practising business lawyers, we enjoy helping clients in this way, right at the beginning of a new business venture – and we usually find that we can add significant value for the client at this point. A short review meeting with us right at the beginning of the project is time very rarely wasted and can very often help avoid some very expensive and avoidable mistakes. Don’t wait until a legal problem heaves into sight….take some early legal advice and avoid the legal problem arising in the first place! After years of seeing what can often go wrong in business, we can usually, very quickly, identify the key areas of legal risk and the most likely legal problems down the line.

Most importantly, we can also usually suggest some very simple things that can easily be done to avoid these risks and difficulties. So set up an early review meeting and come along and pitch the project to us. Ask us some open questions. Ask us some general questions.

For example, your question might be: “I am thinking of getting together with some people I know to set up a new online business. What do you think?”

Get ready for some questions in reply:

• Who will be developing the web-site?
• Who is putting the money in?
• Are any of you currently in a competing business?
• Are any of you currently employed?
• Who will have management control of the business?
• How will you protect minority directors?
• How will you get your initial investment out?
• What will happen if you have an irreconcilable difference of opinion?
• What happens if one of you quits the business or dies?
• What if one of you wants to sell out?

A proper contract with the web developer with sensible payment milestones and acceptance procedures can help avoid delays and points of subjective interpretation that are inherent in web development contracts. It will also ensure that the copyright in the web deliverables are properly assigned and not just subject to a licence from the developer that can be terminated. Will the web rights be assigned straight into the company or held outside the company and licensed to the company to protect the main asset in any future insolvency situation? It would probably also be a good idea to put the developer under a support obligation and prevent the developer building a competitive site for a couple of years or so.

A basic shareholders agreement will prevent any of the participants holding the business to ransom down the line and ensure minority rights are protected by veto on major business issues. A simple mechanism to deal with share purchase and valuation on exit and dispute resolution would also probably avoid much future contention and uncertainty.

You begin to get the general idea. These are the kinds of simple legal issues that are often over-looked but can easily and inexpensively be addressed at the outset, saving untold problems later.

Good business legal advice is about identifying and avoiding legal problems…not being a slave to them down the line when you should be enjoying the fruits of your success!

So the moral is…for good business legal advice…discuss the likely legal issues with us early on before you make any irreversible commitments…ask open questions…ask general questions…come and pick our brains…what’s left of them!

Call or email me to arrange a meeting.

Chris Sherliker

cjs@silvermansherliker.co.uk

Tel +44(0)20 7749 2700

I’ve acted for various clients recently who have sold their businesses and companies, some for many millions of pounds, and I have been astounded by the extremely high levels of risk, often personal risk, that some sellers seem quite content to take on board when they sell.

The terms that some sellers are currently prepared to accept are nothing short of suicidal in some cases.

Some sellers are indeed rushing to sell their businesses like lemmings and are seemingly quite prepared to do so on terms that, quite frankly, verge on the lunatic.

From the point of view of a solicitor giving advice to a client on selling a business, the challenge is to get the seller to appreciate the likely (and often potentially disastrous) consequences of selling on the terms first offered and then to negotiate sensible terms, even if this means that the deal is delayed and even in the face of the possibility that the deal could go abortive. The maxim ‘caveat vendor’ has few adherents. Let’s just flog it and the devil take the hindmost.

In my experience, and, particularly, in my recent experience, sellers are far too trusting of buyers who are promising a fat cheque for the business, especially when that fat cheque is not paid in cash on completion but is deferred and, even perhaps, conditional on future profits or other uncertain conditions, which conditions are usually not within the control of the seller at all.

It requires quite a lot of nerve to sell a business and a considerable amount of patience. I always tell clients that selling a business is a process rather than just a matter of pitching up and signing an agreement. And good legal advice on selling a business is difficult to find so, if, after having read this, you would like a ‘no obligation’ chat with me about any aspect of selling your business, just call me or ping me an email (contact details below) and I will be very pleased to spend an hour with you to talk through the issues. It will only cost you your time and it will probably save you a lot of anxiety and ultimately even a lot of money.

Please feel free to download the FREE Guide with our compliments.

Chris Sherliker – 020 7749 2700

cjs@silvermansherliker.co.uk