The perils of a badly drafted BYOD policy

Summer heralds the time of year when applications from prospective trainees come flooding through the doors of B P Collins, ready for the next step in their legal careers. With this in mind, it is worth taking heed of the recent warning issued by the Information Commissioner's Office (ICO) towards the end of last year. This reminds organisations dealing with personal data, such as employers, that they ensure their policies and procedures reflect the way in which modern workforces operate.

The warning came as a result of a breach of the Data Protection Act 1996 (DPA) by the Royal Veterinary College, after a member of staff lost her personal digital camera. Whilst this loss would usually be inconsequential for her employer, the memory card contained the photographs of six passports belonging to prospective employees, who had been interviewed recently by the College. The College did not have any policies or procedures in place detailing how personal data should to be handled.

After their investigation into the incident, the ICO required the College to give an undertaking to ensure that its staff are trained on how to handle personal data and that all devices contain encryption software if they are using sensitive data.

Despite the reprimand from the ICO and the undertaking required from the College, the entire incident could have ended with a hefty fine of up to £500,000, something I am sure they were glad to avoid.

Speaking after the incident Stephen Eckersley, head of enforcement at the ICO noted: “It is clear that more and more people are now using a personal device, particularly their mobile phones and tablets, for work purposes, so it is crucial that employers are providing guidance and training to staff which covers this use.” 

This emerging trend is known as 'Bring Your Own Device' (or BYOD for short) and it is fast becoming popular with employees and employers alike. The basic premise is that employees are encouraged to bring in their own electronic devices, usually mobile telephones, tablets and laptops, to the workplace instead of those traditionally provided by the employer. According to recent studies, such a policy can lead to a more engaged and flexible workforce and potentially reduces the cost to the employer of providing IT equipment and support.

With the above cautionary tale in mind, employers and, more generally, organisations that handle personal data have to make sure that their policies and procedures for handling personal data are watertight, especially if they plan to introduce a BYOD policy. The ICO has produced a set of guidelines highlighting what companies can do to protect personal data if they plan to allow employees to use their own devices for work purposes. The guidelines include enabling encryption on data which is stored on the device, the use of strong passwords to secure devices and having the ability to remotely delete the contents of such a device in the event of loss or theft.

In addition to this, employment partner and practice group leader Jo Davis has produced her top five things to consider before implementing a BYOD policy in the April edition of Real Business magazine. This article contains helpful information and tips for businesses to ensure that their BYOD policy helps them to avoid the pitfalls that the College stumbled into.

B P Collins LLP employment team is on hand to help ensure that your BYOD policy is a success and are equipped with the necessary skills to help you draft a BYOD policy, tailored to the specific needs of your business. Nevertheless, there is still a lot to consider but I know one thing is for sure, I am never bringing my camera to work again, just in case.

Posted by Benjamin McQueenie, trainee in the employment practice group. 



Benjamin started his training contract in November 2012. He previously worked as a paralegal within the litigation departments of two well-known Bristol firms, as well as a seasonaire in the French Alps.

Signed, sealed but not delivered | Private client

We all make mistakes; it’s a fact of life.  During my time as a trainee, I've come to learn where I am most likely to make mistakes and I've developed ways to help avoid them. However, there are always some mistakes that don't get spotted until it is too late. The recent case of Marley v Rawlings and another is the perfect example of this. 

Before their death Mr and Mrs Rawlings instructed a solicitor to prepare simple mirror wills.  The wills provided that on the first death, the whole estate passed to the survivor and on the death of the survivor, everything was to pass to Mr Marley, who was also to be the sole executor.  Mr Marley was treated by Mr and Mrs Rawlings as their son and lived with the couple, although he had not been formally adopted by them.  Mrs and Mrs Rawlings had children of their own but they were estranged and were not to benefit under the wills.

Mr and Mrs Rawlings signed the wills in the presence of their solicitor, but the wills had inadvertently been muddled up which led to Mr Rawlings signing Mrs Rawlings' will and vice versa.  The mistake was not noticed at the time and, in fact, did not come to light until the second death, that of Mr Rawlings. 

It is possible to rectify a will under section 20 of the Administration of Justice Act 1982 where the will is so expressed that it fails to carry out the testator's intentions because of either a clerical error or a failure to understand the testator's instructions.  Under section 20, Mr Marley applied to the High Court to rectify the will because of a clerical error. The claim was defended by Mr Rawlings' two sons who, under the intestacy rules, stood to inherit Mr Rawlings' free estate worth around £70,000. 

At first instance, the High Court held that the will did not comply with section 9 of the Wills Act 1837 (which sets out the rules for attestation of a will) because Mr Rawlings did not intend to give effect to the will he signed as he signed his wife's will. In the alternative, the Court held that it had no power to rectify the will as the error was not a clerical one.

Mr Marley appealed the decision but the Court of Appeal also refused to rectify the will, again on the basis that it did not comply with section 9 of the Wills Act 1987 and so was not valid.  It was not possible to consider rectification of a will which was not valid.

Finally the claim was heard before the Supreme Court where it was unanimously decided that the will could be rectified on the basis of clerical error.  In reaching this decision, the Supreme Court held that wills should be interpreted in the same way as commercial contracts.  The Supreme Court also held that the formal requirements of section 9 were satisfied because Mr Rawlings had executed the will with the intention of it being his will.  There was no evidence to suggest that his intentions were other than to make a will to benefit Mr Marley on the second death.  

The Supreme Court decision has clarified the position that a "clerical" error need not be limited to a drafting error.  Although many commentators are suggesting that the widening of "clerical" error raises great uncertainty, it is hard to see that rectification will be available where the testator's intentions are in doubt. 

Based on the facts, I think most people (myself included) would feel that the right decision has finally been made – it has just taken a somewhat tortuous process and surely a great deal of expense to get there. This case clearly shows that spending a little time checking documents can result in a lot of time and money being saved in the future. And let's not forget the possibility of negligence claims arising. Whether you are a trainee or fully qualified solicitor, this case shows that it pays to be diligent. There is a definitely a lesson to be learned here!

Posted by Harriet Betteridge, trainee in the private client practice group.

Harriet started her training contract in September 2012 having previously worked in the Litigation team as a paralegal. Her previous experience includes working at a group of law centres in south London and in the Legal, Compliance and Risk team at the Charities Aid Foundation.

Mitchell on Mitchell – Why missing deadlines cause costly headlines

This February my training at B P Collins LLP has taken me, Rebecca Mitchell, to the litigation and dispute resolution practice group, where the name "Mitchell" frequently resonates around the group. You can imagine my concern as I hear my name repeated from across the room, but, thankfully, it is another Mitchell to whom they refer. Andrew Mitchell.

In the wake of the Court of Appeal's ground-breaking decision of Mitchell v News Group Newspapers Ltd (2013) EWCA Civ 1537 ("the Mitchell case"), there can be little doubt that a sea change in litigation is now occurring. A sea change initiated by the implementation of the Jackson Reforms on 1 April 2013. The Jackson Reforms are, in short, intended to change the way litigation is conducted by enforcing a new culture of strict compliance and controlling costs.

In the Mitchell case, Mr Mitchell's solicitors failed to serve a costs budget on time (six days late) and the High Court Master ruled that he was to be treated as having filed a cost budget for applicable court fees only (this is compared to the £506,425 sought). Mr Mitchell appealed, but the Court of Appeal refused to grant relief from the sanction imposed by the High Court Master and concluded that if the Court of Appeal were to overturn the decision “it is inevitable that the attempt to achieve a change in culture would receive a major setback... in time, legal representatives will become more efficient and will routinely comply with rules, practice directions and orders.”

As a LPC student I was taught to be meticulous in my approach to all court deadlines. The “clear days” rule 2.8 of the Civil Procedure Rules (CPR) was referred to at least once a class and, inevitably, a tired-looking student would be asked to count on a calendar to ensure that the correct date for a fictional deadline was understood by all of the class. In the case of Mitchell, the Master drew attention to the fact that failure to serve the costs budget in time resulted in her needing to vacate other appointments relating to asbestos claims. The effect of one party missing a deadline not only interrupted and delayed the Mitchell case, but also adversely affected other cases. The courts are inundated with cases and now, more than ever, it is essential for the legal profession to be efficient and streamlined to ensure that the court's time is put to best use.

Furthermore, the general consensus is that the principle “de minimis non curat lex” (the law is not concerned with trivial things) applies here as it applies in most areas of law and so the relief from sanctions of CPR rule 3.9 can still be relied upon where just and proportionate. The Court of Appeal in the Mitchell case upheld the Master's assertion that "we were too busy to file the schedule on time" is not a valid excuse intended to be covered by the "de minimis" principle.

The question now is how strictly should the courts enforce compliance? In an unreported case shortly before the Mitchell case, a Judge struck out the Claimant's costs budget because the phrase "[Statement of Truth]" was in square brackets which are not compliant to the mandatory requirements for a Statement of Truth pursuant to the CPR. The costs budget had been signed and dated in the appropriate way and, unlike in Mitchell, filed in time. Is it possible that the Court rules are being applied too vigorously?

The greater clarity and certainty that the new system provides is conducive to effective case management which, in turn, can only benefit the client and improve the reputation of the legal profession as a whole. However, the Courts must now strike a balance between establishing a culture of compliance and the necessity of leniency in appropriate cases. 

Phil Mitchell may have brought us drama and R.J. Mitchell the Spitfire, but Andrew Mitchell will be remembered for his role in reinforcing a new culture of strict compliance. 

Posted by Rebecca Mitchell, trainee in the Litigation and Dispute resolution practice group.

Rebecca started her training contract in September 2013 after graduating from Newcastle University with a 2:1 (BA Hons) in History. She undertook the Graduate Diploma in Law at Kaplan Law School and has recently completed the Legal Practice Course with distinction.

Is January really 'divorce month'?

If you believe everything you read in your Sunday morning newspaper then January is supposed to be the time of year when family lawyers are inundated with disgruntled couples, clamouring to separate after having one too many arguments over the festive season.

However, after spending January with the B P Collins family practice group as part of my training contract, I struggle to find truth in this urban myth.

Throughout this seat I have come to appreciate how divorcing someone is simply not a rash action made after a tricky holiday period but a long-considered decision. Even where one party has made the decision quickly (perhaps after discovering infidelity) it is never a decision that I have seen taken lightly.

In my experience people who have thought rationally and sensibly about the future of their relationship will approach the process of resolving any consequent dispute (whether relating to children or money) with similar care.

Some people will agree everything between themselves, around the kitchen table so to speak, and will just come to us to make the agreement legally binding. Others will have no alternative but to go to court, perhaps where they need to establish the jurisdiction of the English court for their case.

However, many couples will fall somewhere in between these two extremes: they need some professional assistance to decide children or money queries, but they want to retain ultimate control over the outcome rather than ceding it to a judge (although, even when court proceedings are started, negotiations almost always continue alongside).

Since joining the Family practice group, I have been surprised by the number of flexible options available to separating couples and how the solicitors here will often tailor a bespoke solution to those particular individuals both in the agreement itself and the method of reaching that agreement. Mediation and solicitor negotiation are two alternatives I have seen work well.

Mediation involves an independent and impartial mediator facilitating discussions directly between the separating couple. With the informed guidance of a solicitor in the background, combined with the neutrality of the mediator, this can be a very successful means of resolution which allows the individuals concerned to retain control and find the appropriate solutions by working together, albeit with an experienced professional present to guide discussions and help “sense-test” potential outcomes.

Whereas a Solicitor negotiation requires a delicate balance between pursuing the client’s objectives and advising on what is within a reasonable band of outcomes. It is the solicitor’s role to obtain the best possible agreement for their client, while always keeping them informed of what the best alternative to the negotiated settlement is. Solicitors must help the client assess the cost/benefit analysis between conceding on certain points to avoid the stress and expense of an on-going battle, without losing sight of the client’s goal.

The advantage to allowing a solicitor to negotiate is that the individuals do not have to have direct contact with their former partners. Many couples, particularly with children, prefer not to have direct discussions, but rather to keep the heat out of potential disputes by allowing their solicitors to resolve things at arms-length.

The myriad of options available in the family arena has inspired a genuine interest in the different ways of resolving disputes and I look forward to exploring this from a different angle in my next training seat in the Litigation & Dispute Resolution group. 

Posted by Rebecca Mitchell, trainee in the family practice group.

Rebecca started her training contract in September 2013 after graduating from Newcastle University with a 2:1 (BA Hons) in History. She undertook the Graduate Diploma in Law at Kaplan Law School and has recently completed the Legal Practice Course with distinction.

Obsession with Concession (Agreements)

Legal update seminars aside, airports are probably the most exciting places in the world! And what's the number one thing to do in that exciting place? It's got to be duty free shopping. Nothing is more thrilling than purchasing your seventh pair of overpriced sunglasses for that long-awaited stag weekend in Tallinn. You know you don't need them, but it's duty free! You have to spend to save! Well, millions of other poor souls think just like us, which is why it's big business for retailers. So big, in fact, that a retailer will enter into a particularly onerous agreement with an airport just to have a concession there.

You will often find that when a retailer enters into a concession agreement with an airport, or a huge shopping centre, it pretty much has to agree to their standard terms and the retailer will have very little bargaining power. Although this can be frustrating for the lawyer trying to negotiate on their behalf, there is often very little that can be done, the retailer has to either take it or leave it.

A concession agreement is essentially a licence, rather than a lease, there is no landlord and tenant relationship (and so any statute that is designed to protect a tenant will probably not apply) and the 'concessionaire' has no right on the land. You are simply given the right to trade on someone else's property.

I was recently asked to interpret some clauses in a three-year concession agreement that our client had entered into with an airport. The client is a very well-known clothing brand. Whilst the clauses mainly related to VAT (I can sense you're dangerously close to the edge of your seat!) the agreement as a whole was really interesting.

I was amazed to see how onerous it was. For example, not only was the client obliged to pay an initial fee for entering into the agreement, but the airport also takes approximately 25% from their sales revenue. This percentage remains the same for all three years, but the minimum amount that the airport was guaranteed would increase, from £229,000 in year 1 to £270,000 in year 3.

On top of the prescribed trading week and minimum trading hours; the client was required to keep very detailed sales and footfall data which the airport had the right to inspect on demand. They are  obliged to show the duty free price of its merchandise and compare it to the high street price, clearly stating the amount that customers save; at its own cost and they had to operate the 'Shop and Drop' scheme (where your shopping mysteriously and beautifully appears at your departure gate waiting for you to collect it).

It doesn't stop there, as the client has to implement any of the airport's points-based loyalty schemes, then should the airport ever create a Facebook page, they are contractually obliged to 'like' it moreover if the airport ever create a Twitter account, they had to 'follow' it (the latter two are real, by the way). I could go on, but you get the gist.

Whether you're a Paralegal, Trainee, Solicitor or Partner acting on behalf of a business, it's essential to understand the commercial realities that clients face. Our client knew it had very little bargaining power but it relied on its own calculations and projected sales to decide whether such a restrictive agreement would be cost-effective.

It was only when I was asked to work on this concession agreement that I fully realised how this was one of the less obvious examples of a really interesting legal relationship coupled with sound commercial judgement. From a lawyer's point of view, it also shows how important it is not to lose sight of the client's commercial objectives.

When every part of your legal brain wants to shout "NO! Don't sign, it's a terrible contract" you have to respect that ultimately, it is the client's decision. Our role is to highlight the terms of the contract and ensure the client is fully informed before deciding whether to enter into it.

So the next time you're in the departure lounge coating yourself with perfume testers, it may be worth considering what's happening in the background. There's usually a legal and commercial reason for everything.   

Posted by Rajiv Malhotra, trainee in the property practice.

      

Rajiv graduated with LLB (Hons) from the University of Birmingham in 2007, before completing the Legal Practice Certificate at BPP Law School in London. After acting as a Legal Assistant with a large Watford firm, Rajiv joined B P Collins in April 2012 as a paralegal before beginning his training contract in September 2013.

Hero or zero - the rise of the zero hour contract

Having spent the last 6 years enjoying lie-ins, watching daytime TV and everything else that loveable students are renowned for, I fought my way through the rigorous B P Collins trainee contract selection process and now find myself in employment, literally, as my first seat is in the Employment practice group.

Joining a new job and practice group is daunting, not only do you have to learn everyone's name and drink preferences but the quirks and processes particular to each area of law. This is made all the more challenging in an area such as Employment, where the law is so dynamic and ever changing.

This made me think about how difficult it must be for employers and HR staff to keep abreast of the latest Employment Law changes and updates. One such example is the increase in the national minimum wage which has changed to £6.31 for employees aged 21 and over from 1 October 2013.

Whilst undertaking some research for an employment contract review, the recent Government discussion on 'zero hour contracts' caught my attention. These contracts leave an employee's hours to be worked deliberately undefined, allowing employers to have flexible working arrangements as they are not restrained by a term in the contract of employment. It also provides employees with the ability to pick and choose when they actually work.

Over recent months it has come to the Government's attention that these contracts are far more widely used than previously realised, with an estimated one million workers in the UK having a zero hour contract, many of which are students.

There are growing concerns that these sorts of contracts are susceptible to abuse by employers, because employees are usually put on to 'standby'. By doing so employers expect employees to be available to work even though they may not be required to and if they do not work then they do not receive payment.

It is understandable that there are benefits for both sides from such an employment relationship. This means that employers have the ability to tailor every day the number of employees working to meet particular business requirements. For example, in the run up to Christmas, retailers can ask staff to work more shifts than they might do during the summer months. This allows the business to manage their cash flow more effectively and to use their staffing resources more efficiently, which is all the more important given the tough economic environment that exists at present for retailers.

The workforce also enjoys the added benefits of these contracts. As a former student, I can completely understand the novelty of being able to pick and choose your working hours around your, ahem, 'studies'. However, students and other workers on similar contracts should be aware from the outset what their status and subsequent rights under their contracts are. Those unsure about this then they should ask their employer to clarify these for them.

Employers need to be aware of the drafting of a zero hour contract. They must ensure their staff is made fully aware of the relevant terms when they are presented with the contract, so that the employee understands the nature of the contract, their rights under it and what is expected from them.

At B P Collins, we offer a complimentary employment contract review service for businesses who might be concerned that their employment contracts are not providing the legal coverage which they would hope to achieve.

Dealing with such issues in my training contract does bring what I learnt at University to life and reassures me that those 6 years studying didn't just prepare me for making beans on toast. How to come to terms with not watching 'Countdown' everyday though is something I certainly was not prepared for.

Posted by Thomas Bird, trainee in the employment practice.

Thomas Bird started his training contract with B P Collins in September 2013. He graduated with a first class honours in International Business in 2010 before completing a Masters in Law at the University of Sheffield, attaining a commendation. Thomas worked as a paralegal within the Litigation and Dispute Resolution team for 3 months in 2012 and also gained legal experience at a well-respected firm in Leeds in 2011.

Have you planned ahead?

Having recently moved into the firms Private Client practice group, I was asked to network at a seminar hosted by the team. While listening to senior associate Christine Moore discuss the probate process, I was surprised to hear that by 2035 the number of people aged 85 and over is projected to be almost 2.5 times larger than in 2010, reaching 3.5 million. This means that by 2035,  5%of the total population will be over 85 and the number of people aged 65 will also have risen to an astounding 23 % of the total population.

This prompted me to consider what assistance may be required for this escalating rise in population and, more immediately, what sort of work I may be involved with during my seat.

It seems logical that an increase in the number of elderly people will be reflected in the number of people who may need assistance with managing their affairs.  However, making provisions for someone else to act on your behalf should not be seen as something that applies only to the elderly.  Sadly, people can become incapacitated at any age either through illness or accident. The only way to effectively protect your wishes in these circumstances is to apply for a Lasting Power of Attorney("LPA") which enables someone to deal with your affairs on your behalf. 

There are two types of LPAs available; one for property and financial affairs, and another for decisions relating to health and welfare which can include provisions for decisions regarding life sustaining treatment.  A LPA can be made by anyone over 18 with sufficient mental capacity and  A LPA can be registered straight away, rather than waiting until it is needed.  This gives peace of mind knowing it is there if needed.  As registration takes approximately 3 months, it could be extremely stressful and frustrating to have to wait for registration at a time when you really need to be able to use the LPA.  

It is often assumed that if the person who loses capacity owns property as a joint tenant and/or has a joint bank account, there is no need for an attorney.  However, this is not necessarily correct.  If one joint tenant wishes to sell a property after the other joint tenant has lost capacity, they would need permission from the Court.

The British Banking Association provides guidance for the operation of joint bank accounts where one party loses capacity and there is no LPA.  The guidance is that banks and building societies can decide whether or not to temporarily restrict the use of the account to essential transactions only, but it has been known for banks to freeze joint accounts when one party has lost capacity. 

So what can be done if someone loses capacity and has not made a LPA? 

An application can be made to the Court of Protection to be appointed as a Deputy; this could be in respect of property and financial affairs, health and welfare, or both. The current application fee is £400, although there are some exemptions.  The application process can be long; the Court aims to respond with a decision within 16 weeks of receiving the application, though it is possible to make an emergency application.  If the Court decides a hearing is necessary, this will incur a further £500 fee and will prolong the process.

A Deputy will have ongoing obligations to the Court including regular financial reports (usually one per year) to the Office of the Public Guardian.  These reports include a record of decisions made on behalf of the person who has lost capacity, as well as copies of all relevant documents (bank statements, receipts, correspondence and professional reports).  In return, the Office of the Public Guardian is responsible for providing support and supervision to a Court appointed Deputy, but there is a fee for this of up to £320 per year.

I have already been involved in drafting LPAs and can see the sense of security this provides for the donor.  Just knowing that something will be in place, if required, can give peace of mind and minimises risks.  This has made me consider my own needs and those of family and friends, not just for the future, but to provide that security now. 

It is vital that anybody looking to create a LPA, in either form, seek expert legal advice before doing so. While many people might consider the task of creating an LPA too time consuming and expensive, it would be wise to think seriously about the security the power might provide you with. Our private client solicitors can assist with the application to ensure it is executed efficiently and correctly.

Posted by Tina Jeffery, trainee in the private client practice group.



Tina Jeffery started her training contract with B P Collins in August 2012 following a long career in the RAF. She holds a BSc and an LLB from the Open University and completed her Legal Practice Course at City Law School.