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<copyright>Copyright &#169; 2012 info@lblaw.co.uk (Lanyon Bowdler)</copyright>
<pubDate>Thu, 17 May 2012 06:33:52 +0100</pubDate>
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<description>Lanyon Bowlder Solicitors blog.</description>
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<description>Lanyon Bowlder Solicitors blog.</description>
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<item>
<title><![CDATA[Complying With The New Cookie Regime]]></title>
<link>http://blog.lblaw.co.uk/complying-with-the-new-cookie-regime-390/</link>
<description><![CDATA[
Recently, there have been some significant changes made to the rules on the use of internet cookies.  These changes affect organisations with a website, and require those organisations to obtain informed consent from website users in order to use cookies.  
A cookie is a collection of data which is implanted by a website operator onto the hard disks of devices of visitors to the site.   Cookies collect information about internet users, such as their names, addresses, email details, passwords and user preferences and are used by many organisations as an essential marketing tool.   While cookies and the information they transmit may not identify a living individual on their own, they may be able to do so in combination with other information held by the website provider.   
The new rules (the Privacy and Electronic Communications (EC Directive) Regulations 2003) came into effect from 26 May 2011.  The Information Commissioners Office (ICO) granted a years grace period before enforcing the new requirements and this period expires on 26 May 2012.   
After 26 May 2012, website operators must comply with the requirements for notice and consent when utilising cookies.   Obtaining the consent of website users is not a straightforward matter, especially from a practical perspective.  It has been indicated by the ICO that inferring the consent of users to the use of cookies simply by their continued use of the website will be insufficient. 
The ICO has not endorsed any specific solution for complying with the Regulations but has instead produced guidance on the steps that organisations should take before the deadline.  These include conducting a cookie audit, assessing the privacy intrusiveness of the cookies used and deciding what level of information to provide to users so that they can understand clearly the potential consequences of agreeing to allow the cookies to operate on their devices.   
Breach of the Regulations allows the ICO to exercise a range of regulatory powers including enforcement notices, information notices and fines of up to 500,000.    
Organisations are urged to consult the ICO guidance and take legal advice on the use of cookies on their websites as soon as possible.   ]]></description>
<category><![CDATA[Corporate & Commercial Law]]></category>
<pubDate>Wed, 16 May 2012 10:04:34 +0100</pubDate>
<guid>http://blog.lblaw.co.uk/complying-with-the-new-cookie-regime-390/</guid>
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<title><![CDATA[Dangerous Dog Offences - Compulsory Insurance Should Still Be Considered]]></title>
<link>http://blog.lblaw.co.uk/dangerous-dog-offences-compulsory-insurance-should-still-be-considered-389/</link>
<description><![CDATA[
Following my colleague Stephen's blog earlier this morning, I welcome the news that the new sentencing guidelines for those convicted of dangerous dog offences will be published by the Sentencing Council today, but would reiterate that I'd still like the Government to reconsider their proposal for compulsory insurance on dogs - which they had announced back in March 2010. 
There are a staggering 200,000 dog bites in the UK each year which often leave victims with permanent physical and psychological scarring and often no course for compensation as the owners do not have any insurance to meet any claim.  
Responsible owners of dogs have nothing to fear in respect of the new sentencing guidelines, as they are the people who ensure that their dogs are cared for properly and controlled.  It is a very sad fact that some people who own dogs do not take responsibility for them or indeed choose a particular breed to use to attack or for dog fighting.  I would urge anyone who has concerns of a dog have a vicious nature to report it immediately to the Police. 
Often, attacks are not reported to the Police which means there is no evidence of an owners irresponsibility, and no way of knowing which owners need educating on how to control the dog.  
If you have been bitten by a dog contact a local solicitor who specialises in dog attacks, as you may be eligible for a compensation claim.]]></description>
<category><![CDATA[Personal Injury]]></category>
<pubDate>Tue, 15 May 2012 12:29:46 +0100</pubDate>
<guid>http://blog.lblaw.co.uk/dangerous-dog-offences-compulsory-insurance-should-still-be-considered-389/</guid>
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<title><![CDATA[New Sentence Guideline for Dangerous Dog Offences Unveiled Today]]></title>
<link>http://blog.lblaw.co.uk/new-sentence-guideline-for-dangerous-dog-offences-unveiled-today-388/</link>
<description><![CDATA[
Following on from my 23 April blog, a new sentencing guideline for those convicted of dangerous dog offences will be published by the Sentencing Council today. It will result in an increase in sentencing levels from the current position.  For any owner allowing their dog to be dangerously out of control, injuring someone, the sentencing level has been set at 18 months imprisonment in order to encourage the courts to use more severe sentences when it would be appropriate to do so.  In addition, owning a prohibited dog could now lead to up to 6 months imprisonment for the most serious cases. The new guideline will mean more offenders will face jail sentences, more will get community orders and fewer will receive conditional discharges.
Other recommendations are that irresponsible owners could be banned from keeping dogs indefinitely and genuinely dangerous dogs could be put down.  There is also higher compensation payable to victims. The Guideline applies to those sentenced on or after 20 August 2012.]]></description>
<category><![CDATA[Criminal Law]]></category>
<pubDate>Tue, 15 May 2012 10:12:54 +0100</pubDate>
<guid>http://blog.lblaw.co.uk/new-sentence-guideline-for-dangerous-dog-offences-unveiled-today-388/</guid>
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<title><![CDATA[Beware the Dangers of Posting Comments on Facebook...]]></title>
<link>http://blog.lblaw.co.uk/beware-the-dangers-of-posting-comments-on-facebook-387/</link>
<description><![CDATA[
Further to Jenny Gibsons blog on social media on 30 November 2011, the Northern Ireland industrial tribunal (the term employment tribunal is not used in Northern Ireland) has held that an employee who posted vulgar comments about a female colleague on Facebook was not unfairly dismissed and that his dismissal was not in breach of his human rights.  Whilst this is only a first instance decision, this case is a useful illustration on the extent to which employers can take action with regards to employees comments on social media pages.
Mr T posted vulgar comments about a female colleague on his status on Facebook on several occasions.  These comments were brought to the attention of the employer and a disciplinary process then took place, following which Mr T was dismissed by reason of his gross misconduct for (i) harassment of a fellow employee; and (ii) bringing the company into serious disrepute, as one of the comments included the name of the employer, both of which were stated in the employers various policies to be capable of resulting in immediate dismissal. 
Mr T brought claims for unfair dismissal and also breaches of Article 8 (right to respect for private and family life), Article 9 (right to freedom of thought and to manifest ones belief) and Article 10 (right to freedom of expression) of the European Convention on Human Rights (ECHR) (enacted in England and Wales through the Human Rights Act 1998). 
The tribunal found that the finding of harassment was a reasonable conclusion for the disciplinary panel to reach  the comments were unwanted and violated the female colleague's dignity, creating a degrading and humiliating environment. However, the decision to find Mr T guilty of having brought the company into serious disrepute was not upheld  the panel had not considered at all the seriousness of the disrepute and there was no evidence that the company had been brought into disrepute at all. However, the tribunal found that Mr T was fairly dismissed in respect of the harassment. There were deficiencies in the employers investigation, but it was held that these were corrected when Mr T appealed his dismissal. 
The tribunal also held that Articles 8, 9 and 10 of the ECHR had not been engaged as (i) Mr T had put his comments on a public webpage and so could not consider them to be private; (ii) Mr T had made comments about another employees sexual behaviour which was not a belief; and (iii) the right of freedom of expression did not entitle Mr T to make such comments about, and harass, a colleague.
Employers should ensure they have social media policies in place and amend their disciplinary procedures accordingly in order to (i) minimise the prospect of such incidences occurring within their organisation; and (ii) maximise the prospects of being able to justify disciplinary action when such incidences so occur including, in appropriate cases, dismissal. Advice should be sought before commencing any disciplinary action in order to minimise the risk of liability for unfair dismissal. Employees should be careful that they do not post comments on any public social media which could result in disciplinary action being taken against them.
Lanyon Bowdler are able to advise on employer and employee rights in respect of disciplinary issues involving social media. If you require any advice, please contact me on 01952 211028 or at bethan.jones@lblaw.co.uk  ]]></description>
<category><![CDATA[Employment Law]]></category>
<pubDate>Fri, 11 May 2012 09:53:21 +0100</pubDate>
<guid>http://blog.lblaw.co.uk/beware-the-dangers-of-posting-comments-on-facebook-387/</guid>
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<title><![CDATA[Driving Under the Influence of Drugs Will Become a Criminal Offence]]></title>
<link>http://blog.lblaw.co.uk/driving-under-the-influence-of-drugs-will-become-a-criminal-offence-386/</link>
<description><![CDATA[
Following on from my blog earlier this year on this subject, I can now confirm that drug driving will become a criminal offence punishable by up to six months imprisonment, under a new law to be unveiled later this week. 
The Government is acting to change the current law which requires the prosecution to prove that the driving was impaired by drugs for a successful conviction in court.    
The new law, which will be included in the Crime, Communications and Court Bill, will also cover the abuse of prescription drugs in addition to illegal drugs. 
The new offence will be enforced by the introduction of  drug screening devices which it is anticipated will be available by the end of this year. 
Similar to drink driving tests, a roadside device will be used to enable a police officer to make an arrest without a driver being required to perform a co-ordination test. 
Police officers who suspect somebody of driving under the influence of drugs will perform a saliva test.  Those who fail this initial test will be arrested and screened by a second calibrated machine at a police station. 
This machine will then provide evidence that can be used in a court prosecution. Police will no longer have to wait for a doctor to arrive to take a blood sample as currently happens. 
Drivers who refuse to co-operate with the tests will be committing an offence similar to that of refusing to take a breath test. 
It is anticipated that both the roadside and police station devices will be granted formal approval by the Home Office within approximately four months. 
The devices will be designed to screen a number of drugs including cannabis, heroin, crack cocaine and also some prescriptions drugs. The machines will also be capable of being updated regularly to include new drugs. 
Drivers found guilty of an offence will face a minimum 12 month driving ban and up to six months imprisonment and/or a fine of up 5,000. ]]></description>
<category><![CDATA[Criminal Law]]></category>
<pubDate>Tue, 08 May 2012 10:27:22 +0100</pubDate>
<guid>http://blog.lblaw.co.uk/driving-under-the-influence-of-drugs-will-become-a-criminal-offence-386/</guid>
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<title><![CDATA[Media Spotlight on Prescribing Errors]]></title>
<link>http://blog.lblaw.co.uk/media-spotlight-on-prescribing-errors-385/</link>
<description><![CDATA[
As highlighted in this week's press, a recent review by the General Medical Council of prescribing errors and monitoring errors in GP practices across the country has found that in all, 1 in 20 prescriptions contain errors.  The review, entitled Investigating  the Prevalence and Causes of Prescribing Errors in GP Practice, found the figure increased in respect of prescriptions to the elderly - where 4 out of 10 prescriptions made out for those over 75 contained errors.Children under 14 were found to be twice as likely to have a prescription error than the age group 15 to 65.Errors in prescribing for children under 14 appeared to be influenced by the problems with correct dosage in relation to the weight of the patient.  Difficulties relating to this have been recently highlighted with regard to the prescription of paracetamol in hospitals which is weight related with fatal consequences.  The review looked at factors such as dosage and record keeping and giving the patient the appropriate check ups to assess medication.The most common problem was incomplete information on the prescription followed by  problems with dosage and the timings of dosage.Factors influencing the risk of errors included:    The number of medicines a patient was taking;    The age of the patient; and    The type of medication.Of the errors found 42% were judged minor, 54% judged mild and 4% severe.However, the impact of a serious but simple prescribing error can have devastating effect on a patient such as in the case of a patient who lost 95% vision as a result of a doubling of the dosage on her prescription by the GP without review.It was also evident from the review that GPs take their responsibilities with regard to prescribing very seriously but can sometimes be affected by factors such as the time constraints imposed on them with regard to appointments, frequent distractions and interruptions when dealing with repeat prescriptions.The review recommends better training for GPs on safe prescribing and closer working between the GP and pharmacists and more effective use of computer systems to flag up errors.Kay Kelly from Lanyon Bowdler has acted in a tragic case of paracetamol overdose as reported in the Daily Mirror. If you require any information or advice with regard to the consequences of a prescribing error please contact a member of our clinical negligence team on 0800 954 9936.  
]]></description>
<category><![CDATA[Clinical Negligence]]></category>
<pubDate>Fri, 04 May 2012 15:43:31 +0100</pubDate>
<guid>http://blog.lblaw.co.uk/media-spotlight-on-prescribing-errors-385/</guid>
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<title><![CDATA[London Olympics 2012 - Issues for Employers?]]></title>
<link>http://blog.lblaw.co.uk/london-olympics-2012-issues-for-employers-384/</link>
<description><![CDATA[
This summer London will host the 2012 Olympics and Paralympic Games.  Some people in the UK were fortunate enough to secure tickets for various events and thousands of others will be hoping to watch the Games on television.  
During key sporting events, surveys have shown that whilst employers do find there is a boost in morale generally, such events do have an adverse effect on productivity and there are often issues with unauthorised absences and time spent during working hours trying to watch the event.  Employers need to make sure they have a plan in place to deal with requests for time off and how to minimise the risk of employees taking unauthorised time off to watch the Games.
Employers may be advised to agree a plan to enable staff, where possible, to watch certain events, where employees do not wish to take annual leave.  This should be expected not only to boost morale, but also reduce the likelihood of employees calling in sick or taking unauthorised absence.  If arrangements are to be made, a policy should be circulated stipulating what these are.  Suggested arrangements include allowing employees to work flexibly (for example allowing them to leave early provided they make the time up) or allowing staff to watch the television or listen to the radio at work during short regular breaks.  Employers should be prepared to answer questions from employees who require time off for non-Olympic related events if they are raised; perhaps by explaining that having the Olympics, which are very popular, in London is very rare and make it clear that it does not wish to extend its measures to other circumstances. 
If such a policy is adopted, it should make clear that any arrangements made are entirely at the organisations discretion and any abuse will result in the privilege being withdrawn.  In addition the employer should always remind employees that the needs of the business do come first and that, while it will try and accommodate employees wishes, there may be times where this is not possible.  Employers should also make sure they have a TV licence in place if employees will be watching the Games at work.
Finally, its important to remember that there may be employees of different nationalities who want to watch events involving their own national athletes.  Any policy must apply equally to those employees in respect of events involving such athletes, if race discrimination claims are not to be risked. 
Regardless of whether any of the steps suggested above are implemented, if employees are suspected of taking unauthorised absence, the starting point for any employer is to conduct a reasonable investigation.  As in any case where an employee is suspected of lying, unless the employer can show it had reasonable grounds to suspect that the employee was lying about a stated reason for absence (say, sickness), an accusation by an employer that an employee is lying may amount to a fundamental breach of contract enabling an employee to resign and bring claims based on constructive dismissal. 
If an employer has reasonable grounds for suspicion then it should utilise the organisations disciplinary procedure and ensure it is followed fairly, particularly where an employee has over one years continuous service and so has protection against unfair dismissal. (The qualifying period for unfair dismissal protection has increased to two years only for employees whose employment commenced on or after 6 April 2012, which will of course not be a relevant consideration this summer.) 
This can often be a particularly difficult issue for employers and so they are advised to contact Lanyon Bowdlers Employment department for further advice should such a situation arise. ]]></description>
<category><![CDATA[Employment Law]]></category>
<pubDate>Thu, 03 May 2012 16:56:12 +0100</pubDate>
<guid>http://blog.lblaw.co.uk/london-olympics-2012-issues-for-employers-384/</guid>
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<title><![CDATA[Time is Running out to Claim for Care Home Fees]]></title>
<link>http://blog.lblaw.co.uk/time-is-running-out-to-claim-for-care-home-fees-383/</link>
<description><![CDATA[
Unknown to many, the Department of Health has set a deadline for families seeking to claim repayment of care home fees, where it is felt that they were wrongly charged.  The cut off date is 30 September 2012.  Unless families disputing fees paid between 1 April 2004 and 31 March 2011 register their claim before this date they will be unable to bring a claim.I wonder how many know or have been advised that where a persons primary need is a health need, they are eligible for NHS continuing healthcare which is 100% free and is not subject to means assessment. It is a basic principle of the NHS that all medical and nursing services are provided free of charge at the point of need.  This includes nursing care of all those who are resident in a care home.Many could now lose out on claims to recover care home fees which have been wrongly charged. It is believed that thousands across the UK have been wrongly charged for care, and in many cases even forced to sell their homes to cover care home costs.  Where a person has contributed to their fees for care from April 2004 onwards, they may be entitled to a reimbursement, even where the person who was cared for has since died but they must act quickly to register their claim before 30 September 2012.This really is the last chance to reclaim these fees.  
]]></description>
<category><![CDATA[Healthcare]]></category>
<pubDate>Wed, 02 May 2012 10:29:26 +0100</pubDate>
<guid>http://blog.lblaw.co.uk/time-is-running-out-to-claim-for-care-home-fees-383/</guid>
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<title><![CDATA[Supreme Court Gives Guidance on Retirement]]></title>
<link>http://blog.lblaw.co.uk/supreme-court-gives-guidance-on-retirement-382/</link>
<description><![CDATA[
The Supreme Court has this week handed down its judgment in respect of an important case dealing with compulsory retirement. 
As Jenny Gibson explained in her blog of 22 February 2011, the law relating to compulsory retirement changed from 1 October 2011. Employers can still retire employees at a default retirement age (DRA), but that will constitute unlawful age discrimination unless it can be justified as a proportionate means of achieving a legitimate aim. There has been little guidance on what will constitute such a justification and so the general advice for employers to date has been to avoid having a DRA or otherwise seeking to compulsorily retire an employee, but instead try and rely on some other reason for dismissal in appropriate cases, for example capability.
The case handed down by the Supreme Court this week provides valuable guidance on what kind of legitimate aims will justify compulsory retirement. The case involved the retirement, not of an employee, but a senior partner in a law firm. Mr S turned 65 on 15 January 2006. The partnership deed provided for the mandatory retirement of partners at the end of the year in which they reached the age of 65. Mr S requested to work beyond the end of the year, but his proposals were rejected and he was retired as of 31 December 2006. Mr S brought various claims, including that his automatic retirement constituted age discrimination. As Mr S was not an employee, he did not fall within statutory provisions, which were in force at the time, which would have automatically allowed compulsory retirement. The firm therefore had to justify its actions, and so the Supreme Courts decision as to whether the retirement was justified is particularly relevant now that the law has changed and all employers will be required to justify such actions. 
The Supreme Court held that the following, which were relied upon by the law firm, were legitimate aims: (i) ensuring associates were given the opportunity of partnership after a reasonable period, thereby ensuring they did not leave the firm; (ii) facilitating the planning of the partnership and workforce by having a realistic long term expectation as to when vacancies would arise; and (iii) limiting the need to expel partners by way of performance management. 
In doing so, it explained that legitimate aims must be social policy objectives, such as those related to employment policy, the labour market or vocational training. They would not include purely individual reasons particular to the employers situation, such as cost reduction or improving competitiveness. The Supreme Court held that there were two kinds of legitimate objectives: inter-generational fairness (for example facilitating access to employment by young people, enabling older people to remain in the workforce, sharing limited opportunities to work in a particular profession fairly between the generations) and dignity (for example avoiding the need to dismiss older workers on the grounds of incapacity or performance). The Supreme Court held that, in this case, aims (i) and (ii) were directly related to inter-generational fairness, and aim (iii) was directly related to dignity. 
However, the Supreme Court was unable to give its view on whether the imposition of a DRA of 65 was a proportionate means of achieving those legitimate aims, i.e. why 65 as opposed to, say, 70? The question was not asked of the Employment Tribunal at the original hearing and so the Supreme Court has remitted the case back for an answer in that regard. 
This case is of some comfort to employers but legal advice should always be taken before attempting to impose a DRA or otherwise compulsorily retire an employee in order to minimise the risk of exposure to liability for age discrimination.]]></description>
<category><![CDATA[Employment Law]]></category>
<pubDate>Fri, 27 Apr 2012 09:50:14 +0100</pubDate>
<guid>http://blog.lblaw.co.uk/supreme-court-gives-guidance-on-retirement-382/</guid>
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<title><![CDATA[New Prison Opens Alongside M54]]></title>
<link>http://blog.lblaw.co.uk/new-prison-opens-alongside-m54-381/</link>
<description><![CDATA[
The controversial new prison just off the M54 officially opened yesterday.   
Initially projected to be a 'titan prison', and holding up to 2,500 offenders, it was downsized and is now expected to house up to 1600 prisoners.   
The prison is located next to two existing prisons, HMP Featherstone and HMYOI Brinsford.  People may have noticed recent road improvements on the A460 Cannock Road at the junction with New Road in Featherstone, where the prison is situated. ]]></description>
<category><![CDATA[Criminal Law]]></category>
<pubDate>Wed, 25 Apr 2012 16:00:22 +0100</pubDate>
<guid>http://blog.lblaw.co.uk/new-prison-opens-alongside-m54-381/</guid>
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