Testimonials-Advertising Law

Testimonials must relate to the product advertised and claims in a testimonial that are likely to be interpreted as factual must not mislead or be likely to mislead the consumer (Rules 3.46 and 3.47). Marketers may not use testimonials to circumvent the Code by making claims in a consumer review that they would not otherwise be permitted to make. For example, if a marketer doesn’t hold the evidence to substantiate an efficacy claim, they cannot use a testimonial which makes that claim.

Testimonials alone do not constitute substantiation so marketers should not rely on testimonials as support for any direct or implied claims made in the marketing communication. Although it acknowledged that a testimonial which made implied claims that a topically applied gel could have similar effects to surgery might have been a genuinely held opinion, the ASA held it breached the Code because the marketer did not provide objective evidence to show the product was an effective alternative to surgery (Rodial Ltd, 11 January 2012). Customer survey responses which made positive comments about saving money on energy bills were not considered adequate substantiation for savings claims (Bright Networks Ltd t/a Bright Heating, 9 January 2013).

The ASA upheld complaints against a testimonial which described a individual’s theory regarding “hexagonal water” because it considered consumers would interpret the claims as being in relation to a theory based on evidence, particularly because it appeared to be endorsed by a scientist (Water for Health Ltd, 3 July 2013).

Marketers using a testimonial must hold evidence that it is genuine. This requirement has two elements; i.e. that the quote is from a real person and that it reflects what they said.

Contact :Reina Dcosta at reina@bizlawuk.co.uk to find out more.

Business expansion assistance

Aside

 

Business expansion services into the UK available for Client/potential client companies

 

If you are supporting overseas companies who are expanding to the UK, or are working with overseas companies that have already established UK operations, you will know that their needs can be wide ranging and technical.

Because of this,  BizlawUK , our practical legal consultancy service (www.bizlawuk.co.uk) want to work together with you and them to support their journey through the following key stages.

For specific help in setting up in the UK  or for help mapping your business ambitions to the UK please contact us  by email -Reina D’costa at reina@ bizlawuk.co.uk

 

 

 

Immigration updates for visit visas

The Government intends for the changes to come into effect on 1 October 2013.

Changes to Visit Visa Categories

1. Expansion of the activities a business visitor may undertake in the UK

The Statement sets out new permissible activities that business visitors may undertake in the UK including:

(i) Internal auditors from global corporations may enter the UK as business visitors to undertake short internal audits; and
(ii) Training that a business visitor may undertake is to be expanded to include corporate training for the purposes of the business visitor’s employment overseas. The training must be delivered by a UK company that is not part of the business visitor’s employer’s corporate group. Furthermore, the main activity of that UK company must not be the provision of training.

Changes to Tier 1 of the Points-Based System

Although closed in April 2011, the Tier 1 (General) category remains open for extension and settlement applications. The following changes are proposed to this category:

1. Introduction of “genuine earnings” test to the Tier 1 (General) extension and settlement applications

A “genuine earnings” test is being introduced in response to concerns that Tier 1 (General) is being abused by applicants submitting bogus claims of their earnings, particularly self-employed earnings. The new test gives caseworkers greater scope to test the evidence presented in cases where abuse is suspected.

2. Enabling those who demonstrate exceptional promise in the arts to apply under Tier 1 (Exceptional Talent)

The Tier 1 (Exceptional Talent) category is designed for individuals who lead the world in the fields of science, humanities, engineering and the arts, or show exceptional promise in the fields of science, humanities and engineering. Applicants in this category must be endorsed by a Designated Competent Body, and wish to work in the UK. The Arts Council will now also endorse applicants who show exceptional promise in the arts.

Changes to Tier 2 of the Points-Based System

The Statement of Changes proposes the implementation of changes to Tier 2 of the Points-Based System intended to improve flexibility for businesses and migrant employees. These include:

1. Removal of the English language requirement for Tier 2 intra-company transferee migrants

At present, any Tier 2 (ICT) migrant who wishes to extend his or her stay in the UK beyond three years must demonstrate an English language ability that is at least the equivalent of level A1 on the Common European Framework of Reference. As the Tier 2 (ICT) route no longer leads to settlement in the UK, the need for integration is less relevant and therefore, in response to representations from businesses in the UK, the English language requirement for applicants in the Tier 2 (ICT) category extending their stay in the UK beyond three years is to be removed.

2. Removal of share ownership restrictions for senior staff within the Tier 2 (General) immigration category

A deregulatory change will introduce a waiver of the prohibition that Tier 2 (General) migrants must not own more than 10% shares in the Sponsor’s business. The waiver of this rule will apply only to applicants on a salary of £152,100 pa or more.

Changes to the Tier 5 Youth Mobility Scheme

Currently, the countries and territories participating in the Tier 5 Youth Mobility scheme are Australia, Canada, Japan, Monaco, New Zealand, the Republic of Korea and Taiwan. The Statement of Changes proposes that Hong Kong be added to the list of participating countries and territories.

The Statement of Changes also sets out the annual allocation of places for 2014. There is to be an increase of allocations for Australia from 35,000 to 38,500 places, as Australia attracted a higher number of British youth under its reciprocal scheme in 2012 than in the previous year.

Contact reina@bizlawuk.co.uk to see how we can assist with immigration law.

A case study

An employee at a business had a grievance with the manager. His issues were not taken up seriously and when the time came to terminate his service he easily brought a claim for unfair dismissal. The cards were stacked against the employer who could have followed the Recommended processes and then managed to have a smooth termination instead of having to settle out of tribunal.

For advice on employment law in the UK email reina@bizlawuk.co.uk

 

At-a-glance guide to the marketing rules

At-a-glance guide to the marketing rules
Method of
communication
Individual consumers
(plus sole traders and partnerships)
Business-to-business
(companies and corporate bodies)
Live calls
 Screen against the TPS
 Can opt out
 Screen against the Corporate TPS
 Can opt out
Recorded calls  Need specific consent  Need specific consent
Emails or texts
 Need specific consent
 Or soft opt-in (previous customer, our own
similar product, had a chance to opt out)
 Can email or text corporate bodies
 Good practice to offer opt out
 Individual employees can opt out
Faxes  Need specific consent
 Screen against the Fax Preference Service
(FPS)
 Can opt out
Mail
 Name and address obtained fairly
 Can opt out
 Can mail corporate bodies
 Individual employees can opt out http://ow.ly/pBxii

Contact reina@bizlawuk.co.uk to find out more

 

Bank’s top lawyers call on law firms to follow flexi-work lead

Lloyds Banking Group’s two most senior lawyers have moved into a job-sharing arrangement, in a high-profile example of changing attitudes towards flexible working in the legal profession.

Group general counsel Andrew Whittaker (pictured) and his deputy Kate Cheetham have agreed a flexible working plan following Whittaker’s move to the bank in May from the Financial Services Authority, where he was also GC.

Though Cheetham works full time, she effectively shares the leadership of the legal team with Whittaker, who is contracted to a 0.6 full-time equivalent post. The duo said Whittaker’s regulatory experience complements former Linklaters lawyer Cheetham’s background in corporate law.

“The professional relationship between us is very strong, and we work very flexibly day to day in a way that combines our various skill-sets,” he said.

Whittaker did, however, acknowledge that the oversight of Lloyds’ legal affairs, alongside the management of a 370-strong in-house team, means he can be called on at any time.

“Jobs at this level of seniority require you to be available whenever you are needed,” said Whittaker, who retains ultimate responsibility for the bank’s legal division.

About 20% of Lloyds’ legal team works flexibly, including several practice heads, as part of a bank-wide initiative, backed by group chairman Sir Winfried Bischoff, which dates back to 2011.

Last month, Lloyds – together with several law firms including Eversheds and Addleshaw Goddard – launched the Agile Future Forum, a non-Government body that has identified greater “workplace agility” as a source of potential growth to the UK economy.

Whittaker said flexible working was a key step “to attract and retain a high level of talent on a permanent basis”.

“You end up with a better legal service, and colleagues who can have a bit more fun in their life,” Cheetham added. “Otherwise, it’s not sustainable.”

Cheetham also said that while certain roles – such as transactional or management-intensive positions – made such initiatives harder to achieve, her arrangement with Whittaker showed it was possible.

Cheetham also expressed a belief that law firms were falling behind when it came to similar approaches: “They put their struggle down to client demand – I think it’s their business model. They need to flex their teams to make sure one or two people don’t end up working 24/7.

“We do talk to law firms about diversity issues, and we do share views and best practice in a number of industry discussion forums. It’s also a topic in a number of industry bodies to help promote diversity and flexible working.”

The news comes as a report into flexible working published this month by the RSA and Vodafone suggests flexible working policies increase employee and organisational productivity, cost savings and wellbeing levels.

Contact reina@bizlawuk.co.uk to see how we can help

Employment law come into effect from today (29 July 2013)

1. Fees

For the first time, fees are now payable in the Employment Tribunal. There are two levels of fees which will depend on the type of claim being brought:

• For straightforward claims such as a redundancy payment or holiday pay, the issue fee is £160 and the hearing fee £230.

• For more complex claims such as unfair dismissal or discrimination, the issue fee is £250 and the hearing fee £950.

If a Claimant fails to submit the issue fee with their claim form before the time limit to bring a claim expires, they will lose the right to bring the claim. Claimants who are unable to meet the fees because of their personal circumstances can apply for full or partial remission.

There will also be fees for making applications to the Employment Tribunal: (a) for review of a default judgment; (b) for review of a final judgment following full hearing; (c) to dismiss a claim following settlement; (d) for an “employer’s contract claim” (a counter-claim); and (e) for judicial mediation. Fees will have to be paid by the party submitting the application.

2. Employment Tribunals rules of procedure

There has been an overhaul of the Tribunal’s rules of procedure giving Employment Judges wider case management powers. The changes have been largely welcomed but time will tell how much of an impact they will have. The full scope of the changes is too far-reaching to set out in full in this e-bulletin, but by way of illustration, we set out two key examples below:

1. The introduction of a “sift stage”. Once the claim form and response (defence) have been received by the Tribunal, an Employment Judge will consider the papers and decide whether the whole claim or part of it should be struck out for having “no reasonable prospect of success”. If this power is exercised correctly, this would be highly beneficial to the Respondent, particularly from a costs point of view, if a claim is struck out without the need for preparing a response or attending any hearing.

2. There will no longer be separate case management discussions (CMD) or pre-hearing reviews (PHR). These have been replaced by a single “preliminary hearing”. Currently a CMD deals with administrative matters such as setting a timeline for steps to be taken in preparation for the full Tribunal hearing. However, certain matters cannot be dealt with at a CMD, for example requesting a deposit order or determining a preliminary matter relating to the proceedings, such as whether a Claimant has a disability. Currently, a PHR is needed to deal with these more complex matters. We anticipate that a single preliminary hearing will be more efficient and will reduce costs for our clients.

3. Compromise agreements

Compromise agreements will be renamed “settlement agreements”. The change is in name only and not to the substantive content of the agreement itself.

4. Pre-termination negotiations

The concept of “pre-termination negotiations” is introduced. This permits employers to make an offer or have a discussion with an employee about the termination of their employment and any proposals for settlement terms, provided that there is no “improper behaviour”. This means that employees will not be able to refer to such offers or discussions in evidence if they bring an Employment Tribunal claim. However, employers should take note that this applies only to cases of unfair dismissal and not, for example, to any discrimination claims.

Many employers have welcomed this change but in our view there are some serious questions as to how effectively it will work in practice. For example, difficulties could arise where multiple claims are raised and employees allege discrimination and/or breach of contract at the same time as unfair dismissal. In this case, pre-termination negotiations could be referred to in Employment Tribunal proceedings (subject to the current “without prejudice” rules).

Contact reina@bizlawuk.co.uk to see how we can help.

Indians hit by£3000 bond for UK visas

Indians hit by £3,000 bond for UK visas
Jun 24, 2013 – SARJU KAUL |

The British government appears confused about what to do with Indians
— while Prime Minister David Cameron and his senior ministers,
particularly during visits to New Delhi, Mumbai and Bengaluru, claim
they are keen to increase trade, economic and educational ties with
India, back home they do everything possible to make it more difficult
for Indian visitors, including students and businessmen, to visit,
work or study in the UK.
The UK regularly pays lip service to India, describing ties with it as
a “special relationship”, a term otherwise used exclusively for the
US-Britain relationship. Mr Cameron even called the relationship with
India as “one of the greatest partnerships in the 21st century”.
UK government policies, however, influenced by local politics, are
making it tougher for Indians to visit, work and study here. Indian
visitors have now been placed in a “high risk” category by the UK, and
will be forced to pay a £3,000 cash bond to get visas to enter
Britain.
Visitors over 18 years applying for six-month visitor visas will be
forced to deposit £3,000 with the UK authorities as part of a new
scheme to control illegal immigration being rolled out in November.
This will be forfeited if the visitors overstay in Britain, a report
in the Sunday Times revealed. The bond, however, will not ensure
automatic entry into the UK.
The UK home office has labelled India “high risk,” but has given no
explanation why it included India in the same category as Nigeria,
Ghana, Pakistan, Bangladesh and Sri Lanka.
Britain grants 2.2 million visas annually, but the pilot scheme will
target visitors from these six nations, labelled “high risk” because
of high volume of visitor visa applications and “relatively high level
of abuse and fraud”. Last year, 296,000 visitors from India were
granted six-month visas, but the home office did not give any figures
to demonstrate the so-called “abuse and fraud” by Indian nationals.
The Indian economy, expected to become the fifth largest in the world
by 2020, is a great attraction for the UK. India already is the fifth
largest investor in the UK, with 81 foreign direct investment
projects, and bilateral trade between India and UK was £10.58 billion
in 2011-12. Tata Sons is one of the biggest private employers in the
UK with 50,000 employees spread over 19 group companies.
Prime Minister Cameron made India a priority on being elected in May
2010 and led huge delegations to India, the last one in February this
year. The UK is keen to double overall trade with India to £23 billion
by 2015.
London mayor Boris Johnson, who visited India in November, has
criticised immigration restrictions placed by the Tory-LibDem
government, calling them a “block on the growth, and we need to sort
it out”.
The UK’s immigration policy has been in shambles as the Tory-led
government has imposed newer rules and restrictions in order to cut
immigration to the promised level of tens of thousands. The clampdown
on student visas and revocation of the London Met University’s visa
licence led to confusion and criticism of the move.
The number of Indian students coming to the UK has declined after the
student visa system was made tougher by the Tory-LibDem coalition
government.
Students from India studying in higher education institutions in the
UK fell by 23.5 per cent last year, compared to 2010-11. Last year,
the number of students from India dropped to 29,900 compared to
2010-11 when there were 39,090 Indian students studying in the UK.
UK visas are in any case among the costliest in the world — with a
six-month multiple entry visa for general, family and business
visitors costing Indians `7,600, and the price goes up to `26,450 (two
years), `48,550 (five years) and `70,050 (10 years). The UK has also
introduced a “super-priority” visa service in some Indian visa
centres, for which a levy of £600, plus the standard fee for the type
of visa being applied for, is charged. Also, long-term visitors to
Britain, including those from India, need to undergo a pre-screening
programme for tuberculosis.
The new visa scheme has been termed as controversial as it is targets
only at people from non-white Commonwealth countries. Canada had to
abandon a similar scheme over protests that it was discriminatory.
The ruling Conservative Party, that faces a challenge for the
right-of-centre vote from the UK Independence party, is keen to show
Britons it is tough on immigration. “This is the next step in making
sure our immigration system is more selective, bringing down net
migration from the hundreds of thousands to the tens of thousands
while still welcoming the brightest and the best to Britain,” home
secretary Theresa May was quoted as saying. “In the long run we’re
interested in a system of bonds that deters overstaying and recovers
costs if a foreign national has used our public services.”
The scheme will include all visa types, including work and student
visas, and to all countries, but not of the 2.2 million people granted
visas each year. However, visitors from the European Union will be
exempt as they do not require visas.

Contact reina@bizlawuk.co.uk to see how we can help

Prevention is better than cure

Featured

Image

How many times have business owners thought in these times of recession it would not be prudent to spend on a full time in house lawyer or a law firm charged too much and that there were smart enough to get their own contracts done or settle their disputes? The mistake many make is to not realise when a helping hand and prevention can be better than cure.

Take for instance the client whose over enthusiastic sales person confirms via email or telephone the details of a sale and payment terms for a deal worth £10,000/- and begins delivery of the service before buyer checks are done or terms and conditions signed off by a lawyer . There then arises a dispute and misunderstanding on the terms and the buyer refuses to pay. The business finally decides to write off the debt thinking going to court may be too expensive and risky as there is no proper proof of the agreed deal and realises too late that the buyer (debtor) has actually not provided proper details of the business name and the phone number provided is dead . On later searching the debtor the business is informed it is a company with no assets and thus any legal action with the best of lawyers will be fruitless.

Just keeping a lawyer in the loop on what was going on or setting up routine protocol would have resulted in first checking the credibility and details of the client and ensuring the buyer business could afford the purchase as no sale is a sale until the cash is realised. Next going through the contract deliverables and ensuring clarity in timing, rate and terms and finally ensuring the authorised person had signed would have resulted in a £10,000 richer seller.

Another example can be of the disgruntled employee who may often not have a clear cut contract or may raise a grievance. The employer might ignore the issue hoping it will go away. The employee instead resigns and sues the company . Would it not have been more advisable to involve a lawyer who is familiar with your business and employment rights from the start so that employee contracts are checked to ensure they cover the business, the grievance is addressed and nipped in the bud and the company maintains policies ,resulting in happy employees and subsequent great performance for the company?

The third scenario could be a company hiring some staff who are on student visas and flouting the rules as they have been too busy to check them and want to save costs or have not maintained the required paperwork and this results in a large fine from the Home Office and bad publicity.

If you think your business needs a helping hand get in touch for a free initial consultation or audit on what your business needs are . You will be surprised how easy and cost effective it can be to retain a consultant inhouse legal service provider who forms an extension of your team , is available at quick notice, understands your business needs and provides proactive advice.