In Whitham v Club 24 Ltd. t/a Ventura the Claimant (Ms Whitwam) worked for Club 24 Ltd as a team leader. Club 24 Limited provided customer services for Skoda, part of the Volkswagen Group. This was an important contract for Club 24 Limited. The workforce at the Claimant’s workplace consisted of both Volkswagen Group and Club 24 Limited employees. The Claimant had previously had a clean disciplinary record at Club 24 Ltd.

On 14 September 2010 the Claimant (after an apparently “difficult day at work”) the Claimant posted on her Facebook account “I think I work in a nursery and I do not mean working with plants”. One of the Claimant’s former colleagues then posted a message on the Claimant’s ‘profile’ suggesting that the Claimant worked with “a lot of planks”. The Claimant replied “2 [sic] true”. At this time the Claimant had only approximately 50 friends on Facebook and had set her privacy settings so that those who were not her “friends” on Facebook could not see her messages.

The Claimant’s line manager was subsequently informed of the messages. He believed that the messages were “unacceptable” and proceeded to commence a disciplinary investigation. The Claimant was subsequently summarily dismissed for potentially harming the Respondent’s relationship with Volkswagen and for a breach of confidentiality (relating to her suspension).

The Tribunal found that the Claimant’s dismissal was unfair. The Claimant wasn’t complaining about Volkswagen but about her working conditions and the people that she was working with. It also considered that such “mild comments” that the Claimant had made would not have in reality resulted in Volkswagen terminating its contract with the Respondent. There was no evidence of any pressure from Volkswagen and it was found that the Respondent’s failure to obtain the views of a manager at Volkswagen was unreasonable. Further, the Respondent had failed to reasonably consider alternative sanctions such as demotion and failed to put that option to the Claimant. They further found that the Claimant would have accepted that alternative should it have been put to her. The Claimant also had strong professional and personal mitigating circumstances. The Tribunal therefore found that the dismissal was outside the range of reasonable responses. However the Claimant was deemed to be 20% at fault.

This case emphasises a number of points for both employers and employees:

Employees

• Be careful of what you post on Facebook (obviously!)

Employers

• Employ a social media policy. This is essential.
• Ensure that your employees are aware of the existence of and terms of the social media policy.
• Ensure that your employees are aware of the terms of your confidentiality policies
• Ensure that you conduct your investigatory and disciplinary policy fairly
• Take into account the views and mitigating circumstances of any employee in relation to any allegations

The prohibition against issuing copies of copyrighted work to the public applies to every description of copyrighted work. We’ve explored the types of copyrighted work before so in this post we’ll deconstruct this prohibition by considering the different elements of the infringement:

1. Issuing
2. Copies
3. (To ) the public

Issuing

The issue of copies (see below) must take place in an area where the Copyright Design and Patent Act 1998 applies. This refers to the time and place that the reproductions were put on offer, not the point at which a copy of the copyrighted work was issued to the public. However, in particular circumstances infringement of the owner’s right will occur at the time of arrival (i.e. the “CD-WOW” case).

Copies

To infringe against the copyright owner’s right, the infringer must put unauthorised “primary” copies of the work into circulation. As can be seen by the emphasis in the previous sentence there is a distinction between “primary” and “secondary” distribution. To use the example of the distribution of copies of an author’s books, primary distribution occurs when the author licenses a publisher to distribute copies of his work. Secondary distribution occurs when, for example, a second-hand book seller sells a copy of an already-distributed work. The book-seller would not need to obtain a license to sell the book and would therefore not infringe copyright by distributing copies of the book. However, an unauthorised primary distributor would infringe the copyright owner’s rights by distributing without consent.

Indeed, if the copyrighted work is distributed in the European Economic Area (“EEA”) then infringement occurs if the copies were not previously put into circulation in the EEA by or with the consent of the copyright owner. If the copyright work is distributed outside of the EEA then infringement occurs if copies of the work were not previously put into circulation in the EEA or elsewhere.

The public

According to the definition of this infringement, the copyrighted work must be issued to the public for the infringement to occur. To determine whether the copyrighted work is being issued to the pubic the following questions must be asked:

1. Is the issuing of the copyrighted work for profit?
2. Is the audience unrestricted?

If the answer to both of the above questions is “yes” then the audience will be defined as “public” and infringement may therefore have occurred. An example may be useful here. The issuing of a dance CD at a private house party (with restricted access based upon ties of friendship) would usually not be for profit (the friends wouldn’t pay to get in) and would be restricted (as only those who qualify as friends could attend). There wouldn’t usually be an infringement in these circumstances. However, the issuing of the same CD in a club environment probably would constitute primary infringement. The CD is being used for the attainment of profit (people paying to get into the club) and the audience is unrestricted (in theory).

Conclusion

As can be seen from the above, this type of primary infringement isn’t simple (although it isn’t particularly complex). Whether the infringement of issuing copies to the public has occurred depends upon the particular facts of the case.

A dismissal can occur in one of three ways – termination of the contract of employment by the employer, termination of the contract of employment by the employee, or the completion of a fixed-term contract. We’ll look at termination by the employer in this post and proceed in the future to an examination of the other two elements.

Termination by the employer

Termination of the contract of employment by the employer can be with or without notice (i.e. the employer may choose to give the employee notice of termination or may summarily dismiss them).

The important element in cases where the employer has terminated the contract is what the employer’s intention was at the time of the purported dismissal. Generally, if the intention to dismiss is clear then the employee is entitled to take this at face value (although this doesn’t involve a consideration of whether the employer later offered to re-employ the employee – an important issue). However, if the intention of the employer in purportedly dismissing the employee is ambiguous then the situation must be assessed objectively – how would the reasonable man view the employer’s intentions in dismissing them? Words allegedly dismissing an employee must be given their ordinary meaning in the context they’re uttered. This context includes the nature of the employment, the relationship between the parties, and a consideration of what these words would normally mean. For example, if an employee is told to “fuck off” by their line manager, is this a dismissal? This really depends, as above, on the context. If words to that effect were used regularly during the working day (i.e. in a pressurised environment) then it probably wouldn’t be reasonable for the employee to take this as signifying intention to dismiss. Again, an examination of the context within which the dismissal took effect is crucial to determining whether a dismissal took effect.

If the employee resigns under duress, is this a dismissal? Again, this depends on the particular facts of the situation. The general rule is that a dismissal is effected if there is no choice in the matter. However, in more complicated situations there is a “fuzzy grey line” as to whether a dismissal has taken place. For example, where the employee has been invited to resign or be dismissed, does this constitute dismissal? In usual circumstances, yes. However, if there are other factors at play extraneous to this (such as the employee’s conduct) then there either may not have been judged to be a dismissal or, alternatively, the dismissal may be deemed to be fair.

Unilaterally imposing radically different contract terms can also effect a dismissal. The imposition of new terms destroys (terminates) the old contract of employment and is repudiatory on the employer’s behalf. The employee can then choose whether to accept the repudiatory breach of contract (and effectively be dismissed) or waive the breach and work under the new contract of employment. The decision of the employee will obviously be dependent on their prevailing situation. This situation is also known as “constructive dismissal”.

The first thing to note in considering reengagement and reinstatement is that such orders are extremely rare. Thus they’re realistically not usually an option in unfair dismissal cases. However, as stated above, the Employment Tribunal does possess the power to order such a remedy if the employee wins their case. In fact the Employment Tribunal must this specific power if the employee wins, regardless of whether the employee requested that remedy in their initial claim form (their ET1).

The Employment Tribunal must first consider whether reengagement (re-employment of the employee on a similar or comparable basis to their previous job) is appropriate. If inappropriate, the Employment Tribunal will then move on to consider whether reinstatement (re-employment in the same position) is appropriate. If the Employment Tribunal considers that reengagement is appropriate then a “Reengagement Order” will be made. Predictably, if the Employment Tribunal considers that reinstatement is the appropriate remedy then a “Reinstatement Order” will be made. An important point relating to these Orders is that the reemployment must not be on terms less favourable than the employee worked under before their dismissal.

The terms of a Reengagement Order must include:

1. The employer’s identity (i.e. if the company is part of a large corporation then the employee may be re-employed elsewhere in the corporation); and
2. The nature of the employee’s new employment; and
3. The amount that the employee will be paid (on a weekly or monthly or annual basis); and
4. The date that the employee will start work again
5. The amount payable by the employer in respect of any benefit the employee might reasonably have expected to have had but for the dismissal

However, the employee can’t be doubly compensated for any losses they have accrued and therefore deductions must be made for any ex-gratia payments or wages received from a new employer.

The terms of a Reinstatement Order must delineate:

1. When the employee will return to work
2. The amount of missing wages and benefits that the employer must for the period between the employee’s dismissal and their reinstatement

A point to note is that such benefits include any rights that the employee would have been due in the period between their dismissal and their reinstatement (i.e. a promised pay rise). Again, the employee can’t be doubly compensated for any losses they have accrued and therefore deductions must be made for any ex-gratia payments or wages received in the meantime.

In the case of Central Manchester University Hospitals NHS v Browne the Claimant was subjected to an investigation on the grounds of misconduct and capability. The Claimant was a Divisional Director of the Respondent, responsible for financial affairs. Two other Divisional Directors (both of whom were white British) were also investigated. They were not told that their position was untenable and were not told that their jobs were in jeopardy. Further, they were not subjected to the capability procedure. The Claimant was told this told that his position was untenable, that he may lose his job, and he was subjected to the capability procedure.

The Claimant subsequently submitted a claim for direct race discrimination and victimisation under the Race Relations Act 1976 (as well as for unfair dismissal). The Claimant succeeded on all three counts at the original Employment Tribunal. It was found that the Central Manchester University Hospitals NHS Trust’s disciplinary procedure was insufficient and was in fact a sham. As a result of this, it was determined that the Respondent did not have a genuine and honest belief in the Claimant’s guilt. The Claimant had therefore been unfairly dismissed. Further, the Respondent had discriminated against the Claimant and subsequently victimised him as a result of the Employment Tribunal proceedings.

The Respondent appealed the Employment Tribunal’s decision on three grounds relating to the discrimination and victimisation, but did not appeal the unfair dismissal element. The grounds of the appeal were as follows:

1. There was a failure to construct a true hypothetical comparator; and
2. There was a failure to attribute the cause of the differential treatment afforded to the Claimant to discrimination rather than any other cause; and
3. There were insufficient grounds to support a finding of victimisation.

The Employment Appeal Tribunal rejected all three grounds of the appeal.

On the first ground, the Employment Appeal Tribunal found that the Employment Tribunal had correctly constructed a hypothetical comparator by asking the following questions:

1. What would the attributes of a comparator be?
2. Would such a comparator have been treated differently (to the Claimant)?
3. Was that difference in treatment attributable to discrimination?

The original ET had constructed a hypothetical white comparator and concluded that such an employee would have been treated differently to the Claimant on the grounds of his race. Important evidence on this point was a combination of, firstly, the difference in the way in which the white Divisional Directors were treated, secondly, the statistical evidence that the Claimant put in front of the Tribunal relating to the disproportionate number of Afro-Caribbean employees that were dismissed in relation to the number employed and, thirdly, the unreasonable treatment of the Claimant. The ET was therefore entitled to draw the inference of discrimination on the primary facts.

On the second ground, the Central Manchester University Hospitals NHS Trust stated that the ET had failed to take into account non-discriminatory reasons for the Claimant’s treatment. Again, the way in which the Claimant was treated by the Respondent, the differential treatment afforded to the white Divisional Directors, the summary rejection of the Claimant’s grievances, and the ‘worrying’ statistics (as well as some ‘dodgy’ evidence given by the Respondent’s witnesses) entitled the ET to draw the inference of discrimination on the primary facts.

On the third ground, the Employment Appeals Tribunal rejected the Respondent’s arguments on the same grounds as above – there were sufficient primary facts from which the ET was entitled to draw an inference of discrimination.

The important point to make here is that (addressing the current law) the Claimant simply has to make a prima facie case for discrimination on the primary facts. It is then the Respondent’s responsibility to produce evidence to refute discrimination as the reason. It is therefore very important that any and all evidence is gathered and that grievances are submitted. A simple equation is that the more (credible) evidence that is gathered of discrimination, the more likely that an Employment Tribunal claim will be successful.

A person infringes the copyright of another if they reproduce a literary, dramatic, musical or artistic work in any material form. A literary, dramatic, musical or artistic work can range from the plot of a novel to the choreography of a specific scene. Reproduction simply involves the copying of a work – the production of a new work from a previous original work (with at least one new copy being made each time the work is copied).

So, how much of the work actually needs to be copied for an infringement to occur? The first thing to note is that whether copyright in a work has been infringed depends on the quality of the copying, not the quantity. This is a question of fact. In each case the specific originality that allowed the copyrighted work to gain copyright in the first place must be examined and the question asked: “has the essence of the copyrighted work been taken?”. The similarities – and differences – of both the ‘original’ and ‘offending’ work must be scrutinized. Whether the essence of a work has been copied can be an extremely difficult issue to resolve. The second issue is that the copying doesn’t need to be exact, so copying the plot is enough to infringe copyright. Again, this goes to the heart of the matter: has the essence, the distinctive quality, of the first work been reproduced?

As above, with literary works it is enough, for example, that the plot has been copied without the contents of the work being copied in full. However, there is a fine and grey line to be drawn here – whether the copying of a plot (for example) infringes copyright depends on whether the new work has a core element of originality itself. If the “offending” work is found to be original (and therefore qualifies for copyright itself) then it would seem difficult to argue that an essentially original work copied another. Infringement of artistic works can occur if, for example, a copy of a 2d work is made in 3d and vice versa. Copyright subsisting in a film or broadcast can be infringed if a photograph of the whole or any substantial part of any image forming part of the film or broadcast is reproduced. Again, the quality of the reproduction matters, not simply the quantity, and it’s important to note that infringement can occur without knowledge – the “offender” need not have the intention to or knowledge of infringing copyright.

What remedies do owners of copyright have if their work is infringed? The civil remedies that the owner of copyright may be able to gain includes:

• the gaining of interim relief (such as an interim injunction, declaration, freezing injunction, search and seize order, or disclosure order); and/or
• the gaining of final relief, such as
  • the ordering up for delivery (to the owner or another person) of all copies of the infringing work; and/or
  • the seizure of infringing works under the CPDA; and/or
  • Forfeiture under the CPDA (where the works are seized and destroyed or delivered to the copyright owner); and/or
  • A declaration of infringement; and/or
  • The right to elect for damages or account for profits

Future articles will examine the nature of the civil (and criminal) remedies that can be pursued against infringers of copyright.

The limitation date is generally calculated as three (3) years from the date of the accident (i.e. 1^st January 2004 to 1^st January 2007). There are certain exceptions to this:

1. If the victim is under the age of 18 at the time of the accident then they have 3 years from the date of their 18^th birthday to make a claim. For example, if Ben is injured in a car crash at the age of 15 and his 15^th birthday was on 1^st January 2004 then he would have until 1^st January 2010 to make his claim.
2. If the victim has serious mental health issues and has to be sectioned then the time for the limitation date of their claim runs from three (3) years from the date that they cease to be a patient
3. Claims to the Criminal Injuries Compensation Authority must be made within 2 years of the accident date. For example, if you’re assaulted on 1^st January 2004 and receive a broken nose then you have up until 1^st January 2006 to submit your claim to CICA.
4. Aircraft accidents and accidents at sea: there is a 2 years limitation date under the Carriage by Air Act 1961 and the Merchant Shipping Act 1995
5. Common-law claims for assault-related injuries have a six (6) year limitation date
6. If the date when the victim knew of the injury was a date after the accident date then the limitation date is calculated from when knowledge has been acquired, rather than the date of the injury (under s.11 of the Limitation Act 1980). This point is normally arguable in claims such as those which involve pleural plaques or serious psychological harm). However, the limitation date will not be extended if there is evidence that the failure to claim within the appropriate dates was because of ignorance of the law, unreasonable failure to make further enquiries, unreasonable failure to appreciate the significance of the injuries suffered, or unreasonable failure to take prompt medical or legal advice.
7. If equitable to do so, the Court has the power to disapply the 3-year limitation date under s.33 of the Limitation Act 1980. The Court can only do so if it is equitable in the circumstances and there is no prejudice to the Defendant.

The above are all serious considerations in judging whether a victim of a personal injury claim is able to claim for personal injury or whether they are out of time.

Overpayment of wages – worker perspective

If you’ve been overpaid by your employer then there is unfortunately a complete bar on bringing claims for unlawful deductions where the reason for the employer’s deduction is that you’ve been overpaid. If you definitely have been overpaid and your employer is attempting to recover the difference then you may not be able to pursue a remedy through the Employment Tribunal. This is the case even if the employer has miscalculated how much the payment is (i.e. if you were overpaid £50 in January and your employer mistakenly deducts £60 from your wages in February).

However, if you do make a claim for deduction from your wages in the Employment Tribunal then the Employment Tribunal has an obligation to determine whether there was an overpayment and, if so, whether the overpayment was the reason for the deduction. If the Employment Tribunal refuses to hear your claim then you have the possibility of suing for breach of contract by your employer in the civil courts.

Overpayment of wages – employer’s perspective

If you’ve overpaid your worker in the previous month(s) then the first thing to do is accurately calculate (as much as possible) how much has been overpaid. If there has been an overpayment of wages to the worker then you are entitled to deduct the value of the overpayment from their wages in their next payslip (or payslips, depending on the amount outstanding). Workers are barred from bringing claims in the Employment Tribunal for deduction of wages where the reason for the deduction is an overpayment to the worker in previous payslip(s). However, the worker is entitled to bring a claim in the Employment Tribunal to determine whether there has in fact been an overpayment. If the Employment Tribunal finds that there was not an overpayment of wages then they will probably allow the claim for deduction of wages under the ERA 1996 to go ahead. If the Employment Tribunal finds on the facts that there was an overpayment then they are entitled to hear the case, even if the wrong amount has been “recovered” from the worker.

Conclusion

Claiming and resisting a claim for deduction of wages due to a previous overpayment rests upon whether there has in fact been an overpayment. The worker must show proof that there has been a deduction from their wages and the employer must in turn show that there was a previous overpayment.

Depending on your employment status (i.e. whether you’re a worker or an employee) you may be able to claim constructive unfair dismissal if you’ve suffered an unjustified deduction from your wages and want to resign from your employment. Depending on the circumstances you may also have been discriminated against.

Under the Employment Rights Act 1996 (“ERA 1996”) employers have the right to make deductions from the wages of their workers. However, this is not a blanket, unlimited right. It is unlawful for an employer to make deductions from wages unless the deduction is required or authorised by statute or a provision in the contract, or the worker has given prior written consent to the employer’s deduction. Equally, an employer acts unlawfully if they receive a payment from one of their workers unless the payment is required or authorised by statute or a provision in the contract, or the worker has given prior written consent to the payment. Your employer cannot therefore ask you to pay for unaccounted-for stock or a theft from the till unless you’ve said agreed to pay this money or such payment is required by statute or your contract with your employer.

Who’s covered?

Unlike the provisions relating to unfair dismissal (which only covers “employees”), the legislation covering the payment and protection of workers extends to the wider category of “workers”. A worker is defined as those who have entered into, or work under, a contract of employment and any other contract whereby the individual undertakes to do or perform personally any work or services for another party to the contract, whose status is not, by virtue of the contract, that of a client or customer of any profession or business undertaking carried on by the individual. An employer doesn’t normally have the same degree of control over a worker that it does over an employee, and there isn’t normally such a mutuality of obligation (i.e. the employer isn’t obliged to provide work and the worker isn’t obliged to do it).

What are wages?

Wages are also defined quite widely. They include any sums payable to the worker by their employer in connection with their employment, including any fee, bonus, holiday payment or other payment referable to the employment, whether payable under contract or otherwise, statutory sick pay, statutory maternity pay, paternity and adoption pay, guarantee pay, medical and maternity suspension pay, payments for statutory time off work, and payments made pursuant to a reinstatement or re-engagement order, interim relief order or protective award.

This can include holiday pay, shift payments, long-service awards, accrued holiday pay (unless there is an express contractual term preventing this), commission, service charges, tips (when paid by cheque or credit card), discretionary bonuses, and payments under a “gardening leave” dismissal. However, tips paid to a waiter or waitress by cash are not defined as wages for the purposes of the ERA 1996.

When is an employer allowed to deduct money from your wages?

An employer is allowed to make deductions from your wages, as above, when authorised by statute or a provision in the contract. For example, an employer can deduct from wages the PAYE and National Insurance Contributions that they are obliged to make. There may also be an express contractual term to this effect. The worker can also agree to the deduction from their wages. This consent has to be informed and can’t be retrospective.

Further, an employer is entitled to deduct money to pay a public authority (i.e. taxes), to remedy against industrial action, or to fulfil a contractual obligation to pay a third party. If there’s a computational error then the lack of wages is not counted as a deduction as such a shortfall was not intentional on the employer’s behalf. Lastly, the employer is entitled to deduct money from a worker’s wages if the worker has been overpaid.

What are your options if you have had money deducted from your wages?

You have a number of options:

1. Do nothing
2. Negotiate with your employer
3. Make a claim to the Employment Tribunal to remedy the unlawful deduction from your wages

If your employer has deducted money from your wages without your consent (and not due to a contractual or statutory obligation) then you may be able to resign (should you wish to do so) and claim for constructive unfair dismissal and breach of contract. If the deduction is because of a protected characteristic that you possess (i.e. because of the colour of your skin or the fact that you’ve just returned from maternity leave) then you can also potentially claim discrimination under the Equality Act 2010.

The Criminal Injuries Compensation Scheme (“CICA”) was originally set up by then-incumbent Conservative government in 1995. The Criminal Injuries Compensation Scheme is designed to compensate victims of violent crime who have suffered physical or psychological injuries. The most common type of offences that entail payouts from the scheme are violent and sexual assaults. Victims of violent crimes can gain remedies through both the CICA and the civil courts but there are good reasons to pursue such claims for personal injury through the Criminal Injuries Compensation Scheme. Firstly, claims in the civil courts can be harrowing to the victims, especially when it comes to the trial. CICA claims circumvent this. Secondly, Defendants in such cases are often impecunious. They’re unlikely to have assets substantial enough to pay any award and they are generally not covered by insurance (unlike most other types of personal injury claim). The benefit for Claimants for pursuing a Criminal Injuries Compensation Scheme claim is that the payouts are made by CICA. The Government is therefore effectively guaranteeing that the payments will be made (if the CICA officer recommends that payment should be made).

Victims of crime can be compensated for three areas of loss relating to personal injury: the injury itself, loss of earnings, and “special” losses (i.e. damage to property, medical expenses etc.). The amount of compensation for personal injury awarded depends upon which tariff “bracket” the Claimant falls into. The lowest awards are made for injuries that are only slightly more than “trivial”, such as broken noses or sprained ankles (although victims of crime would dispute these as trivial). There are 25 “brackets” (or bands) in total, ranging from £1,000 for a minor sprain or fracture to up to £250,000 for paralysis and serious brain injury. The maximum total award for a personal injury claim within the Criminal Injuries Compensation Authority (including loss of earnings and special losses) is capped at £500,000.

Kenneth Clarke, the Justice Minister, has stated that payouts for minor injuries will be scrapped, while payouts for a number of serious injuries will be reduced. This is effectively a restructuring of the tariff system mentioned above as well as an attempt to restrict eligibility for the scheme. Only those victims achieving a certain level of injury will be eligible and the tariff system is being shaken up so that the lowest five bands are being removed. The amount awarded for loss of earnings will also be capped at £12,600.

Mr Clarke has stated that the reasons for the changes being introduced is that the scheme is in financial difficulties, with a deficit of more than £250 million. He has further stated that the Government wishes to shift the burden of compensation from the taxpayer to offenders. This is an understandable aim but ignores the fact that a large number of offenders would not be able to cover the amount of compensation due, leaving Claimant’s undercompensated for their injuries.