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.

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.

Do you really own your address book?

What happens when an employee resigns from a company to either set up on their own or to join a competitor?

Employers must be aware that knowledge and client databases built up by an employee during their employment could potentially be very damaging to their businesses future.

Employees may think they have a right to take with them any contacts built up through the course of their employment this, however, is not the case. The key point is when the relationship between the employee and client started. If it was through the course of their employment, then the employer is most likely actually the owner of the information.

In businesses where information, such as client databases, are the key to their success, employers should protect themselves by ensuring they have a very well drafted contract to prevent employees from using the potentially damaging information should they resign and move to a competitor.

Both employers and employees should carefully consider the extent of restrictions contained within their contracts and the implications of these restrictions. It is very likely that employers will have a contract drafted which prevents employees from competing should they leave the company.

The employer cannot impose unlimited restrictions on an employee as this would be thrown out if challenged through the courts. Restrictions must be considered reasonable and it is common to find a restriction within a contract preventing an employee from competing with their previous employers for three to six months after their departure. Whether the restriction will be regarded as reasonable will largely depend on the nature of the work but there are also many other factors that will need to be considered.

This blog ties in well with Simon Hall's previous post about social networking sites, especially LinkedIn. Despite being able to have a LinkedIn profile whether or not you are currently employed, if an employee has built up their contacts on LinkedIn due to a policy enforced by the employer (therefore, through the course of business), it can be argued that the employee has no right to this information upon their resignation from the company.

If an employee fails to abide by their contract and carries out an action such as contacting clients from their previous firm, there is the option to apply to the court for an injunction to prevent the employee from continuing with this act, thus enforcing the restrictive covenants within their contract.

The employment group at B P Collins can advise individuals as to the extent and implications of such restrictions within their contracts and can also assist employers in drafting a water tight contract. In the event that ex employees still attempt to use the information gathered in the course of business prior to resigning, our team can also advise in relation to injunction proceedings.

Posted by Gemma Hunter, trainee in the Employment law practice group.



Gemma started her training contract with the firm in October 2011 having studied Law and Criminolgy LLB at the University of Sheffield and the LPC at the College of Law, Bloomsbury.

The legal hurdles of the Games

Unless you have been in outer space for the last 7 years, you will be well aware that the Olympics began with a bang last weekend. Whether you see them as a fantastic opportunity to showcase the UK, or an expensive inconvenience, they give rise to a number of legal considerations.

We have all been invited to 'join in' with the Olympics. However, one Staffordshire florist found out the hard way that the party comes with strict doormen. Trading Standards officers ordered her to remove a window display depicting the Olympic rings as it was a breach of trademark. A similar fate befell an elderly lady who knitted a doll for sale at a local fête as the doll was wearing a top displaying those same rings. As you can imagine, sections of the national press were up in arms!

While these are more extreme examples of intellectual property protection, every corporate client will have some form of intellectual property to protect: from brand logos (such as the rings), to inventions and industrial processes. The corporate and commercial practice are able to offer advice on both how to protect newly created intellectual property rights and to assist with assigning or licensing pre-existing rights. Should your intellectual property rights be infringed, our litigation and dispute resolution lawyers are able to assist with enforcing them.

The Olympics also raise important employment considerations. In spite of the debate over the ticket distribution, it turns out that some people actually have tickets for Olympic events. Even those who weren't so lucky may have volunteered as 'Gamesmakers', or might be planning to watch certain events at home. This will cause employers headaches as they try to deal with a large number of employees requesting annual leave during the same period. It is important to formulate a plan in advance of the event, such as whether to give priority to employees who are working as volunteers, those with tickets to events or those who submit their leave requests first.

Similar considerations arise (albeit on a smaller scale) for large local or national events such as international football tournaments, race meetings and annual music festivals. It is important to ensure that you have well drafted policies in place to deal with events which can cause disruption to the operation of the business. These range from flexible working or home working policies, through to disciplinary policies in respect of unauthorised absences. Our employment lawyers are well versed in advising clients on the best approach and drafting the appropriate policies.

Now all that's left to do is sit back, relax and cheer on Team GB!

Posted by William Key, trainee in the litigation and dispute resolution practice.

William started his training contract with B P Collins LLP in January 2011. He graduated from the University of Leicester obtaining first class honours in Law, before undertaking the LPC at Nottingham Law School gaining a distinction. Outside of the office his interests include supporting Coventry City FC, cricket, snowboarding and travel.