In this regular feature, partners at Reynolds Porter Chamberlain deal with questions sent in by readers. These need not be limited to insurance related matters, and can focus on any area of your activity. In this issue we look at part-time working after maternity leave, ex-employees passing on sensitive information, and the liability of occupiers.
Q: Is it true that we must allow women to return part time after maternity leave?
Catherine Thorpe considers the trend towards more flexible working:
Women do not have a legal right to insist on part-time work or job sharing on their return to work after maternity leave. Strictly, the employee should be offered her original post.
The difficulty is that you must be able to justify on an objective basis your reason for insisting on full-time work. If you cannot, the employee will have a claim for indirect sex discrimination. This could be very expensive for your organisation as Employment Tribunals can award unlimited damages in discrimination claims.
The issue of justification is, therefore, crucial. It will be necessary to establish that the reason for refusing part-time work or job share is that it is necessary on operational and business grounds, rather than simple convenience and you must show that your organisation has balanced the detriment caused to the employee by requiring her to work full-time against the reasonable needs of the organisation. Other options must be shown to have been considered.
The same principles must be applied to women with dependent children who request part-time work, not just those returning from maternity leave. If you decide to allow some of your female staff to work part-time because of childcare commitments you must ensure that your male employees are not treated less favourably than the women. An Employment Tribunal in Edinburgh recently awarded £3,600 compensation to a male mechanic whose employer refused part-time work so that he could care for his two-year-old son. He argued that the employer would probably have agreed a request from a woman and the tribunal accepted this.
The government have indicated that next year further legislation is likely to be introduced which will assist both mothers and fathers who want to work more flexible hours. The impact of the new provision
on women seeking part-time work on return from maternity leave is currently unclear, although it will almost certainly mean that
it will be more difficult for employers to refuse reduced hours. Flexible working is, therefore, something that cannot be resisted indefinitely. Employers would be wise to implement policies sooner rather than later to deal with these changes in the working environment.
Catherine Thorpe is a partner in Reynolds Porter Chamberlain's employment department.
Contact her on cht@rpc.co.uk
Q: I insure an angling association. Does the association have to maintain safety warnings put up by others?
Stuart White explains the liability of occupiers in such situations:
Imagine a peaceful rural scene somewhere in England. A stretch of river, well stocked, the envy of anglers who do not belong to the association lucky enough to fish it. The only blot on the landscape (apart from - for those old enough to remember Flanders and Swann - the inevitable broken bedstead poking out of the stream) is the line of electricity pylons interrupting the vista. One is right on the river bank.
The association is rightly concerned about its members' safety, given the risk of fishing lines getting caught in the overhead cables. While the National Grid or the local electricity supply company has placed warning notices in the vicinity, they are becoming rather faded and in some cases are now illegible.
So what are the association's responsibilities? While the National Grid or the electricity company will have its own obligations to protect people from danger, that does not let the association off the hook. It has to comply with the Occupiers' Liability Acts of 1957 and 1984. Lawful visitors are treated differently from trespassers.
As regards lawful visitors, an owner or occupier of the land must take such care as is reasonable in the circumstances to ensure that lawful visitors will be reasonably safe in using the premises. Appropriate warnings can be adequate in some circumstances.
In the case of trespassers, the association first has to be aware of the danger, or have reasonable grounds to believe it exists. Second, it must have reasonable grounds to believe that someone may come into the vicinity of the danger. Third, the risk must be one against which, in all the circumstances, the occupier may be reasonably expected to offer some protection.
Interestingly, if the scene were set instead in a Scottish glen, trespassers would be better off - Scottish law treats everyone as a lawful visitor.
Accordingly, the association ought to take reasonable steps to ensure that appropriate protective measures are taken and that adequate notices warning of dangers are present. If this means maintaining or duplicating the fading notices put up by others, then that is what must be done. Further, the likelihood of the presence of children should be borne in mind, along with the fact that children tend to pay less heed to notices than adults. Anything which children might reasonably foreseeably meddle with or play on and sustain some injury probably needs attention. Perhaps it's time to remove that broken bedstead....
Stuart White is a partner in Reynolds Porter Chamberlain's insurance and reinsurance department. Contact him on sgw@rpc.co.uk
Q: If my employees leave, I am worried that they will take sensitive and confidential information to my competitors. How can I prevent this ?
Ron Norman deals with the protection of confidential information:
You should consider putting appropriate provisions in your employees' contracts. These will cover a number of areas.
First you should define confidential information in the contract. Information about customers and business methods (and also quotations) may automatically be legally protected,but it is best not to rely on the Courts to interpret what is confidential, but to list it in the contract specifically as confidential information. Remember that what is in the public domain cannot be confidential in any event.
Second, you should provide that anything the employee creates or invents during his employment should belong to the employer, such as copyright and designs or software progammes.
Third, you should put a garden leave clause in the contract.This is a clause stating employees can be sent home and paid, during their notice periods. This will prevent them from going to work for a rival employer and using confidential information during the notice periods.
You can also include a provision prohibiting the leaving employee from soliciting other senior employees or executives to leave with him to go and work for a competitor.
Last, and most important, you can put restrictive covenants in the contract, which are provisions that prevent the employee from competing even after employment ceases.
However, with regard to restrictive covenants, these must be reasonable and limited both in area and scope so as to protect only the employer's legitimate interest and goodwill. For instance, they should only be limited to the employee's specialist skills (that is not the whole insurance industry) or limited to a particular area (such as setting up an office down the street) or limited to particular clients (for example, not contacting clients with whom that particular employee has dealt with in the year before leaves).
In summary, protecting confidential information is much easier if the employees have properly drafted contracts. Furthermore, if the business were ever to be sold, a purchaser will want to know that the goodwill is fully protected and part of this protection will be embodied in the employees' contracts.
Ron Norman is a partner in Reynolds Porter Chamberlain's corporate department. Contact him on rbn@rpc.co.uk
Send us your queries
Keep sending us your queries. The legal surgery is co-ordinated by Stuart White, contact him on sgw@rpc.co.uk .
If you need further information about the above topics, please e-mail the partner concerned. If you have a legal query about another topic, e-mail Stuart White and the appropriate person at RPC will contact you to discuss it.
The initial discussion is free of charge. Depending on the query, either the discussion should be enough to sort it out, or there may be a need for further work, in which case you would be free either to make arrangements with RPC or to instruct any other firm.
