Stemming the tide

first_img Previous Article Next Article Key employees inevitably have access to a company’s confidential information,customers and even your best employees to a rival venture, it could spelldisaster.  Can they be stopped?  Henry Clinton-Davies examines some of thesteps that employers can take to retain or at least restrain departingpersonnelThe commercial way to prevent employees leaving is by giving them incentivesto stay – either through financial reward or by enhancing their quality oflife. Financial incentives might, for example include the grant of shareoptions which only vest over several years – so an employee who leaves earlywould miss out on the vesting dates. Under The Child Support Pensions andSocial Security Act 2000, an employer operating an unapproved option schemewhose shares are “readily convertible assets” may now be able to passthe liability to pay employer’s National Insurance Contributions, (which ariseon exercise of the options), to the employee. Of course, the obvious way to encourage employees to stay is by ensuring agood working environment where they feel respected and fulfilled. Quality oflife can be improved by the introduction of flexible working hours and workingpractices adapted to suit individual needs. The employer’s goal should be toensure that what cannot be offered in cash incentives is made up for in termsof quality of life. Although these incentives may help, they are not always enough to protectagainst the defection of key employees. Other steps may be needed to protectthe business from damage. The employment contract The key to protecting your business and preventing unfair competition byex-employees lies in the employment contract. All employees owe their employerimplied duties of loyalty and good faith. But unless an employer can show thatinformation which ex-employees are using or misusing is tantamount to a tradesecret, or that ex-employees have embarked on a campaign of solicitation ofcustomers whilst still employed, these implied duties offer the ex-employerlittle protection. It is crucial then to ensure that the contract contains a properly draftedconfidentiality clause and enforceable covenants. All too often confidentialityclauses are drawn up that are as unenforceable as they are too general or allembracing. A properly drafted confidentiality clause: – Should define what is meant by confidential information with as muchprecision as possible. It is not sufficient to state that an employee must notdisclose confidential information per se. For example, rather than stating thatall the information about customers is confidential, which is plainly too wide,you may want to say that it is customer lists, pricing policy or therequirements of customers for the company’s products and services which areconfidential. – The employee should not only be prevented from disclosing information butfrom using it for his own purposes. – Should reflect the fact that confidential information has a shelf life sothat once information is in the public domain, (other than where the employeedeliberately discloses it), its dissemination is no longer restricted. – Should have regard to the limitations imposed by recent whistleblowerslegislation, contained in the Public Interest Disclosure Act 1998. Under thatAct clauses in contracts that prevent employees from making “protecteddisclosures” (from reporting wrong doing through the proper channels) arevoid. It could be argued that a blanket confidentiality clause without a carve-outfor protected disclosure could fall foul of this rule. Garden leave Another useful device to exert a measure of control over an employee wishingto leave is to include a garden leave clause in the employment contract. Thisenables the employer to suspend the employee during his notice period. Theemployer must, however, continue to pay the employee to stay away from theoffice. “A good deal for the employee” you may say. Yes, but at thesame time the employee’s access to confidential information and to clients isrestricted. Many companies seem to think that they can require a departing employee totake garden leave even without a contractual clause. In most cases they arewrong, see William Hill Organisation v Tucker, 1998, IRLR 313. As in that case,forcing an employee onto garden leave in such circumstances will usually be amajor breach of contract. The employee will be able to claim constructivedismissal and the company will be barred from relying on any other non-competerestrictions in the contract. Also, bear in mind that time spent on garden leave is time out of themarket. The courts may now take this into account in determining whether anyother restrictions you seek to impose on employees after they leave arereasonable. Time spent on garden leave should therefore be set off against theperiods of time which any other restrictions are intended to last. A garden leave clause: – Should be reasonable in scope and duration: increasingly the courts areapplying the same tests of enforceability as they do with other restrictivecovenants. Garden leave can only be imposed for a reasonable period of time,which is not necessarily synonymous with the entirety of an employee’s noticeperiod. – Should restrict the employee from working for other companies. If you donot include this stipulation, you could find yourself in the galling positionof paying the employee on garden leave whilst he receives a second salaryelsewhere, see Hutchings v Coinseed Ltd, 1998, IRLR 190. Even clauses which dothis are subject to the reasonableness test: the court will retain a discretionas to whether to enforce them and may for example allow an employee to work forsome third parties but not others (see Symbian Limited v Christensen, 2001,IRLR 77). – Should restate that the employee continues to owe duties of good faithwhilst on garden leave. At present the courts seem to be in two minds whetheran “implied duty” is applicable. Restrictive covenants There are a variety of restrictive covenants that can be included in anemployment contract to protect your business against unfair competition. Well-drafted restrictive covenants can provide an employer with much neededprotection against key employees who leave to join a rival. Key considerations in drafting restrictive covenants are: – Does the employer have a legitimate interest to protect, such as hisconfidential information and customer connection, and if so, is the clause nowider than is reasonably necessary to protect that interest. If in doubt, seekadvice! – Include a “non-solicitation of customers” clause, backed up by anon-dealing clause. A company will normally be able to establish that it has alegitimate interest in protecting its customer connections. Solicitation isdifficult to prove if the customer says, “I voluntarily followed theemployee”. The clause therefore needs to prevent the employee contactingor dealing with customers. It is wise to limit these prohibitions to customerswith whom the employee has recently been in contact (say in the past 12months). As with all covenants the clause should also be limited to areasonable period after the end of the employment, (as a broad rule of thumb nomore than 12 months), minus the time spent on garden leave. – Include a “non-poaching of employees” clause. A company’semployees are often a vital asset of the business, particularly if they possessthe skills essential to a business’s success and have influence over keycustomers. If a departing employee tries to persuade former colleagues to leaveas well and join a competitor or start up a competing venture – it could bedisastrous. The courts have recognised this as an area that merits protection,but have set some limitations on the principle. The prohibition can only applyfor a reasonable time. Also, the clause should be limited to key employees interms of seniority and expertise, and only include any employees who worked forthe company at the same time as the ex-employee, (TSC Europe (UK) v Massey,1999, IRLR 22). An exception to the general rule was made in the recent case ofSBJ Stephenson Ltd v Mandy, 2000, IRLR 233, where a non-poaching clause wasupheld, even though it related to all grades of staff. However, that was a casedecided on its own particular facts. – Include a clause that prevents the employee from working for a competitor.This kind of clause is the most draconian and, therefore, the most difficult toenforce. To try and ensure this clause can provide some protection, it must bevery carefully drafted. In particular a clause that prevents the employee frombeing involved in any business “in competition with that carried on by theex-employer” without regard to what the employee was actually doing wouldbe too wide to enforce, (as was the case with Wincanton Ltd v Cranny & SDMTransport, 2000, IRLR 716). Thought should also be given to whether the clauseshould only apply in a limited geographical area and whether the period ofrestraint should be shorter than the other covenants. Payments in lieu of notice When an employee leaves to join a competitor – an employer’s first reactionmay be to want the employee to leave immediately. If this is not provided forin the employment contract, it could create problems, as the employer could bein breach of the contract and so lose the right to rely on the restrictivecovenants in the departing employee’s contract. The solution adopted by manyemployers is to include a payment in lieu of notice (Pilon) clause in thecontract that allows the employer to terminate the contract immediately with apayment in lieu of notice. The reasoning is that if the contract contains aPilon clause, the employer is not acting in breach of contract in bringing thecontract to a premature end and is therefore still able to enforce thecovenants. Provided that the clause merely gives the employer the option of terminatingemployment with a Pilon, the employer has a choice: he can pay up, require theemployee to leave and enforce the covenants. Alternatively he can refuse topay, accept he is in breach of contract and leave the employee to claimdamages. The downside is that the employer must forego reliance on thecovenants. The advantage however is that the employee has no automatic right tothe Pilon. As in the case of Cereberus Software v Rowley, CA, 18 January 2001,the employee is then under a duty to mitigate his loss and must give credit forearnings from new employment received during the notice period. Recently, a rival company sued one of our clients in the High Court. Therival alleged that two employees, who had recently joined our client, should bestopped by a court injunction from dealing with their old employer’s customers.We won. Why? Because the relief sought by the ex-employer went beyond theprotection provided for in the employment contracts his lawyers had drafted.The lesson is clear – if you would like to prevent ex-employees from enjoyingan unfair competitive advantage, protect yourself in the contract ofemployment. Henry Clinton-Davis is partner and head of the employment and humanresources team at Brobeck Hale and Dorr Comments are closed. Stemming the tideOn 1 Apr 2001 in Personnel Today Related posts:No related photos.last_img read more

A touch of the Lara Crofts at e-learning London

first_imgA touch of the Lara Crofts at e-learning LondonOn 1 Jul 2003 in Personnel Today Previous Article Next Article Attracting a lot of attention at the recent e-Learning London Show wasLogicom and British Gas’ innovative Real World Environment training programme,designed for service engineers. The programme aims to enhance the skill levels of British Gas engineers andModern Apprentices, and does so by utilising 3D sound, video and animation tosimulate a service engineer home visit. The technology behind it, which lets learners interact with objects withinthe environment, is based on one of the world’s most successful PC-based gamesengines. It has been re-engineered for training purposes, explains Grayham Amos,product director at Logicom. “The demonstration at the show wasn’t runningon the web, but the technology can be configured appropriately to run over thenet,” he said. Related posts:No related photos. Comments are closed. last_img read more

Converting empty malls to warehouses isn’t easy

first_imgNorth Point Mall in Alpharetta, Georgia, (left) with Brookfield’s Brian Kingston (iStock; Brookfield; Google Maps)As demand for e-commerce grew and large tenants like Sears closed up shop, some mall owners sought to redevelop their struggling properties into warehouses, residential buildings or office properties.But the task has proven more challenging than expected, according to the Wall Street Journal. Mall owners are required to spend hundreds of millions of dollars on construction and labor costs. The new developer might not have ownership of the individual department stores or parcels, further complicating matters.Some failed redevelopment efforts have resulted in the owner selling the property at a discount or turning it back over to its lenders.Last week, Brookfield handed over its North Point Mall in Alpharetta, Georgia, to a lender even though it had previously scored rezoning approvals to bring hundreds of residential units to the property in 2019, the publication reported. The property’s value fell below its loan balance of about $200 million.In July, Brookfield nixed its plans to redevelop the former Burlington, Vermont mall. The developer said that, at that time, the long-term nature of the project’s next phase didn’t fit with its funds mandate.In other cases, local governments may step in. Just outside of Atlanta, an investor sought to redevelop the former Gwinnett Place Mall into a 20,000-seat cricket stadium. But the deal fell apart when the two sides couldn’t reach a deal. Last month, the county decided to buy the mall for $23 million.[WSJ] — Keith Larsen TagsBrookfieldmallsRetail Share on FacebookShare on TwitterShare on LinkedinShare via Email Share via Shortlinkcenter_img Share via Shortlinklast_img read more

A question of property: Katie Griffin, President of the NAEA

first_imgKatie Griffin (pictured, right) is the President of the National Association of Estate Agents (NAEA) and only the second woman to have the job in the association’s 50-year history.  Half way through her time leading the NAEA, Nigel Lewis interviews her just after she flew in from a week in Chicago representing the UK.What were you doing in Chicago?I was there with NAEA Chairman Mark Hayward as well as two board members – Kirsty Finney and Natasha Rodgers from Belfast (all pictured, below). We spent five days there at the National Association of Realtors’ conference and exhibition, where the NAEA had a stand. It’s fairly intimidating; there are 22,000 delegates at the event; more than the total number of agents in the UK.Sounds like a bit of a jolly.It wasn’t. We attended half a dozen meetings every day, looked after the stand and networked hard on behalf of the NAEA – we were there as part of the Global Alliance, which includes agents from 60 countries around the world. These kinds of connections are going to be increasingly important after Brexit.Did it all go according to plan?The biggest surprise for me was that I thought we’d go there to pick up some ideas and then take them back to the UK. But whereas the US three or four years ago was ahead of the UK, our ideas and technology have caught them up – and overtaken. There was no talk of proptech or online agents when we were there.What did they think of Purplebricks?I don’t think they quite understand what’s going to hit them once Purplebricks establishes itself in the US, and we’re going to be receiving two delegations from NAR in March and June next year so I guess they want to come here to see what’s going on.What do you think of Purplebricks?I’ve got to be careful here as they are members of the NAEA too – there’s a place for every kind of estate agent within the UK and, as I say to my staff at Sawdye and Harris [her agency in the SW], you’ve got to adapt to new ideas, and that’s what the NAEA is doing too.There are always going to be customers who don’t want to deal direct with an agent and who are happy to do it at arm’s length online, but there are other who are time poor and want to employ a professional to do it for them.Have women broken through the glass ceiling in property?I don’t look at it like that. It’s amazing that there are more and more women working in property, but it doesn’t matter what gender you are – it’s more about how good you are at your job.What’s more important to me is that we get more young people in the industry, which as a reputation for being a bit old-fashioned. We’re about to launch Trailblazers, which will be an industry-wide apprentice scheme to help fix that. It will enable them to come in at a young age and, rather than doing the filing, study for a proper estate agency qualification from day one.Katie Griffin Mark Hayward National Association of Realtors NAEA Chicago November 21, 2017Nigel LewisWhat’s your opinion? Cancel replyYou must be logged in to post a comment.Please note: This is a site for professional discussion. Comments will carry your full name and company.This site uses Akismet to reduce spam. Learn how your comment data is processed.Related articles BREAKING: Evictions paperwork must now include ‘breathing space’ scheme details30th April 2021 City dwellers most satisfied with where they live30th April 2021 Hong Kong remains most expensive city to rent with London in 4th place30th April 2021 Home » News » A question of property: Katie Griffin, President of the NAEA previous nextA question of property: Katie Griffin, President of the NAEAWe talk about some of the important issues within the industry with Katie Griffin, the President of the National Association of Estate Agents.Nigel Lewis21st November 201701,609 Viewslast_img read more

Exclusive: Spicerhaart CEO denies he’s planning more redundancies or business model changes

first_imgHome » News » COVID-19 news » Exclusive: Spicerhaart CEO denies he’s planning more redundancies or business model changes previous nextCOVID-19 newsExclusive: Spicerhaart CEO denies he’s planning more redundancies or business model changesPaul Smith responds to our article in which an insider claimed the company was preparing to adopt a Purplebricks-style self-employed model at some branches.Nigel Lewis19th May 202002,490 Views “As the largest independent estate agency in the UK, it is inevitable that others in the industry will be watching our every move – in many cases, criticising the way we run our business or making assumptions about our plans for the future.However, I’m really pleased to say that as a result of some very tough decisions that we have taken over the past few weeks that we are in a really strong position, going forward.The Spicerhaart team has pulled together in extraordinary ways since this pandemic began and I have never been more proud of every single individual for the way they have stepped up.Business has been reignited and we have had an incredible number of calls from existing and prospective customers, so much so that our In Work teams are working flat out to try and keep up.Every day, our executive team reviews what is happening in the market place and the likely impact this will have on a business like ours.We have also been looking very closely at our operating costs and I have questioned whether we need so many physical branches or whether our staff can still work locally without the huge overheads that come with having an expensive physical space.Any rumours about changing our model for people to become self-employed are simply untrue.In fact, our views are the exact opposite, that by offering people the security of employment but with a more flexible way of working, we will bring out the best in our current Spicerhaart family and those that see our new model.Right now, our number one priority is the safety of our staff and our customers. We have a new COVID-19 Safe and Secure training programme that all our staff are expected to complete with an assessment procedure to ensure everyone understands what is required of them in the coming months ahead.We are also working through a programme of bringing people back from furlough, so that we can continue to trade successfully and strengthen the brands under the Spicerhaart umbrella, maintaining our strong position in the markets where we currently operate.Finally, let me assure you at this time, we are not planning any large scale redundancies; as I continue to state we are strong, and will come out of this much, much stronger.” haart CEO Paul Smith spicerhaart May 19, 2020Nigel LewisWhat’s your opinion? Cancel replyYou must be logged in to post a comment.Please note: This is a site for professional discussion. Comments will carry your full name and company.This site uses Akismet to reduce spam. Learn how your comment data is processed.Related articles BREAKING: Evictions paperwork must now include ‘breathing space’ scheme details30th April 2021 City dwellers most satisfied with where they live30th April 2021 Hong Kong remains most expensive city to rent with London in 4th place30th April 2021last_img read more

Complaints about estate agents increased 20% last year, figures published today show

first_imgHome » News » Complaints about estate agents increased 20% last year, figures published today show previous nextRegulation & LawComplaints about estate agents increased 20% last year, figures published today showAnnual report from The Property Ombudsman reveals that it handled over 5,000 sales, lettings and property management cases during 2019.Nigel Lewis11th May 202002,512 Views The number of people complaining about estate agents increased by 20% last year compared to 2018, it has been revealed The Property Ombudsman (TPO).This surprisingly large rise is part of a long-term trend that saw complaints rise by 40% between 2014 and 2018, and enquiries by 73%.TPO says it handled 5,106 complaints during 2019 of which 1,669 were about agents involved in sales, 2,518 about lettings and 780 concerning residential leasehold management.These cases were whittled down from 30,356 consumer enquiries, after which TPO instructed agents to pay awards worth £2.2 million of which 56% were paid by lettings agents.The average sales award was £742 while the average lettings award totalled £635.“2019 was another busy year for TPO,” says outgoing Property Ombudsman Katrine Sporle, who is due to step down in November this year, although no replacement has been announced yet.“Complaints ascended year on year again and we also saw the complexities of cases increase, particularly in the residential leasehold management field.”The not-for-profit organisation has also announced two initiatives including allowing agents to pay their subscription fees by Direct Debt.“Not only is this a cost effective method for TPO to collect payment but will also provide seamless renewal so agents can easily fulfil their obligations to be registered with a redress scheme,” say Gerry Fitzjohn, Chair of TPO’s Finance & Performance Committee.It has also developed a self-diagnostic tool to handle initial enquiries which is currently in its piloting phase but could be launched later this year.Read more about complaints about estate agents.  May 11, 2020Nigel LewisWhat’s your opinion? Cancel replyYou must be logged in to post a comment.Please note: This is a site for professional discussion. Comments will carry your full name and company.This site uses Akismet to reduce spam. Learn how your comment data is processed.Related articles Letting agent fined £11,500 over unlicenced rent-to-rent HMO3rd May 2021 BREAKING: Evictions paperwork must now include ‘breathing space’ scheme details30th April 2021 City dwellers most satisfied with where they live30th April 2021last_img read more

Babcock, BAE Systems awarded contract extension for MCG

first_img Categories: Back to overview,Home naval-today Babcock, BAE Systems awarded contract extension for Royal Navy MCG Posted: over 4 years ago The agreement is worth about £43m and will see the continuation of in-service support to the 4.5 MCG across 19 Type 23 frigates and Type 45 destroyers as well as HMS Collingwood. The continued collaboration between Babcock and BAE Systems, the gun’s designer, is said to offer the capacity, proven capabilities and infrastructure to run in-service support. British aerospace and defence company Babcock International and compatriot BAE Systems have been awarded a five-year contract extension by the UK Ministry of Defence (MOD) to continue in-service support to the Royal Navy’s 4.5 Mk8 medium calibre gun (MCG). Share this article View post tag: Royal Navy Babcock, BAE Systems awarded contract extension for Royal Navy MCG Babcock, BAE to work on Royal Navy’s MCG weapon system “The 4.5 MCG is a key weapons system on board the fleet, helping to keep personnel safe during operations. By creating a digital twin to better predict performance and define maintenance requirements, we are delivering real-world use of technology for our customer,” Will Erith, CEO Babcock Marine said. April 9, 2021, by Naida Hakireviccenter_img View post tag: medium calibre gun Photo: UK MOD View post tag: Babcock The digital twin enables digital connection with the asset presenting near real-time insight to the materiel state of the gun. It combines Babcock proprietary data capture technology and data science capability, augmenting Babcock’s engineering pedigree in naval gun support. The technology provides the on-board maintainer with the information they need to optimise maintenance and provides Babcock the foresight needed to predict future faults and proactively intervene to keep the asset operational and increase availability. Posted: over 4 years ago The Mk8 MCG is a modern, semi-automatic variant and can rapidly fire high explosive rounds against land and sea targets with pinpoint accuracy. Babcock has also opted to implement innovative digital twin technology to drive an increase in reliability and availability of the weapons system and work to extend its service life. The effort to increase efficiency will also see the roll out of BAE Systems’ design interventions. View post tag: BAe Systems Authorities Equipment & technology Related Articlelast_img read more

South End Dredge Sails Wednesday Night and Starts Work Thursday

first_imgThe Liberty Island is “sailing tonight” … or at least that’s the latest update on Wednesday afternoon from the Army Corps of Engineers on the long-awaited return of the dredge powering the beach replenishment project at the southern end of Ocean City.Work on the project is expected to resume on Thursday (Aug. 13), according to Army Corps spokesman Richard Pearsall.The dredge has been in port for repairs in Norfolk, Va., for more than two months. The Army Corps had announced July 31, August 6, August 9 or 10, then August 12 for the pr0jected return to work of the hopper dredge Liberty Island. All those dates passed with no sign of the ship.The Liberty Island is a hopper dredge, a ship that pumps sand into its hold from an underwater borrow area, then travels closer to Ocean City to hook up with a pipeline that feeds the new sand onto the beach. The ship is owned and operated by an outside contractor, the Great Lakes Dredge and Dock Company of Oak Brook, Ill.The engine on the Liberty Island died on May 30 and the ship had been in port for seven weeks as it was replaced. It returned to Ocean City on July 20 for what was expected to be the restart of  work. But the dredge broke again on its first test pump.The delays have kept all Ocean City beaches open through the heart of the summer vacation season, but they’re also pushing the restart of work into the heart of hurricane season (though, as of Wednesday, there was no tropical activity anywhere in the Atlantic Ocean).Work to rebuild eroded beaches between 37th and 59th streets in Ocean City began April 16 and was expected to be complete by mid-July. But the dredge has now been under repair for about 74 days after working for only 44 days.The project is now expected to be complete at the end of September. Equipment sits idle on the beach in Ocean City on Wednesday, awaiting the return of the hopper dredge Liberty Island.last_img read more

Malt loaf supplier offers limited-edition Halloween product

first_imgSoreen, maker of the Original Malt Loaf, is launching a new flavour, Chocolate and Blood Orange, as part of its limited edition ‘Scream’ range. Soreen, maker of the Original Malt Loaf, is launching a new flavour, Chocolate and Blood Orange, as part of its limited edition ‘Scream’ range.Chocolate and Blood Orange, made using natural orange and blood orange flavourings with milk chocolate chips, will be available in five individually wrapped Lunchbox loaves with a Halloween-themed party idea on pack at a RRP of £1.35.The Scream range will be listed in Tesco, Asda and Morrisons from 21 September to 8 November. The new flavour will join the existing Toffee Apple variant.Paul Tripp, UK managing director of Soreen, said: “Our limited-edition Scream range enjoyed great success when in launched in 2014, so we’re confident that this new flavour addition will be devilishly successful and build on the already strong growth in Soreen Lunchbox Loaves.“Falling on a Saturday this year, Halloween will undoubtedly result in more consumers making the most of the opportunity to celebrate.”Soreen’s value sales have risen by 15.1% and volume sales by 9.4% over the past year and penetration has increased from 22% in 2011 to 31.9% as of May 2015, as the brand has added new products to its core lines and invested in above-the-line advertising.The new product launch follows the launch of Breakfast Bakes, its first on the go breakfast product. These come in three flavours – apple and cinnamon, original malt and fruity five – all with a wholegrain oat topping and available in multi-packs of five.last_img read more