Author: regine_mfpq35j8

We recently reported on the landmark case of Forstater which decided that gender-critical beliefs are protectable under discrimination law. You can read more about the Forstater case in our blog: Maya Forstater wins tribunal claim for discrimination due to her gender (burleylaw.co.uk).

Following the Forstater decision, case law has been developing in the area of “transgenderism”, “gender critical beliefs” and “gender fluidity”. 

In another case, a doctor, who held a strong faith-based belief that biological sex could not be changed, has also succeeded in having his belief protected in law. 

Background

In the case of Mackereth v DWP [2022] EAT 99, Dr Mackereth had started working for the  Department of Work and Pensions (DWP) via an agency, as a health and disabilities assessor of benefits claimants. This role involved a significant amount of proximity with service users in face-to-face assessments. It was also required of him to produce reports based on his findings in the assessments. 

Dr Mackereth was a Christian who believed in the supremacy of the Bible. During his induction with the DWP, he was told that if he was dealing with a service user who was undergoing gender reassignment surgery, he would have to use their preferred pronouns.  He was told he would have to comply with this requirement because it was DWP’s policy. Dr Mackereth objected to this requirement, as it did not align with his beliefs as a Christian. Discussions followed but the matter was not resolved, and the agency informed Dr Mackereth that he would not be able to work for the DWP as a benefits assessor because he would not comply with the policy.

The Claim

M brought a claim against his employer, DWP, to the Employment Tribunal on the grounds of direct discrimination, less favourable treatment and indirect discrimination based on his belief in his religion, which he claimed was a protected characteristic. 

The Tribunal dismissed the claims, believing that he did not meet at least one or more of the ‘Grainger’ criteria (a set of requirements a belief must meet in order to be classed as a protected belief). 

Dr Mackereth appealed to the Employment Appeal Tribunal (EAT). 

The EAT appeal

Under section 4 of the Equality Act 2010 (EqA 2010), religion or belief is a protected characteristic. Section 10 of the EqA 2010 defines “belief” as any religious or philosophical belief, and a reference to belief includes a reference to a lack of belief. The EAT upheld Dr Mackereth’s claim that his lack of belief was protectable.  In other words, the fact that he did not believe that biological sex could be changed was capable of protection against discrimination.  

When assessing the appeal, the EAT did find errors in the Tribunal’s decision in regard to using the Grainger criteria. 

The EAT believed that the initial Tribunal had held to the fifth criteria of the Grainger test too tightly. The fifth Grainger criteria is: “the belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others”.  The EAT held that this should be interpreted broadly so as to allow for the protection not just of beliefs held to be acceptable by the majority, but also of minority beliefs, even where those beliefs might offend others.

However, the EAT went on to uphold the Tribunal’s original decision to dismiss Dr Mackereth’s claims of discrimination, finding that he had not suffered direct or indirect discrimination in the way the DWP had applied its policy concerning the use of preferred pronouns for its service users.

What does this result mean for employers? 

This is a tricky area of discrimination law involving competing interests and employers must tread carefully.

This case underlines that beliefs which are contrary to transgenderism or gender fluidity are capable of protection under the Equality Act 2010, even though they are offensive to others.  However, it should not be taken to mean that employers should allow those with such beliefs to exercise them in the workplace. Employers still have the right to restrict the manifestation of a protected belief in the workplace where doing so is necessary, proportionate and in pursuit of a legitimate aim.

The DWP and the agency who employed Dr Mackereth had attempted to understand the reasons for his lack of belief and accommodate his wishes, but they had not been able to for various reasons.  In this context, it was reasonable for the DWP to uphold its policy.

An employer must always carry out a balancing exercise between the rights and freedoms of those with certain beliefs and the protection of others who find those beliefs offensive. Where there is clear evidence of a rational decision-making process and genuine and reasonable efforts to engage with and understand the beliefs concerned and make accommodations, the employer will, in our view, be in a strong position to defend a discrimination claim.

Have you ever thought about printing a custom design onto your clothes? By doing so, you may be at risk of infringing copyright as the image could be treated as an artistic work. 

What is copyright? And why is print on demand involved with copyright? 

Copyright is an intellectual property right which protects various original works, including images, designs or literature. 

Print on demand allows individuals to easily print copyright protected material to order using digital technology. Whilst this is a quick and efficient way to customise clothing, it can be detrimental to  artists who depend on their work for their livelihood.

What can happen if I print a protected work without permission? 

The copyright owner (or more commonly, their agent who specialises in this area) may claim monetary compensation, require that you stop what you are doing and even that you destroy or give to them any infringing copies. In some cases, trading standards or the police will get involved and commence a criminal investigation. The criminal law is not straightforward, but importantly, making infringing copies can be an offence even where this is not in the course of business.  

How can you avoid violating intellectual property rights? 

You may need to contact the owner or an agency working on their behalf to get permission to use an image. 

There are online repositories, such as Creative Commons, which facilitate sharing and distribution of content without payment of a fee by the user, but you should be sure to understand and comply with the specific licence terms.  For example, you may have to credit the original photographer, use may be limited to non-commercial activities or you may not be able to alter the image. 

If you would like to know more on how you can protect your work, or how to prevent putting yourself and/or your business at risk of violating intellectual property rights, get in touch with our Intellectual Property and Tech lawyer Des.

In June, I started my placement at Burley Law. It is now almost three months into my role, and I am currently reflecting on what I have learnt. This blog will reflect on my experience and why I believe a placement is extremely beneficial, which I hope will be of use to those who are still deciding on whether to undertake a year in industry. 

Prior to commencing my placement at Burley Law, the experience I carried included working in retail, virtual programmes and insight days but I had never actually stepped foot into a law firm. 

During My First Two Months at The Firm 

To say that I was nervous was an understatement. Since I did not have any actual in person legal experience, I was anxious that I would not be able to keep up with the inner workings of a law firm. Looking back now, I realise that my worries were just worries, and by the end of the first month, I was feeling much more confident and adjusted to my new role than I had been feeling at the start. 

Learning all the processes and features which run a law firm seemed daunting at first, but having that hands-on experience really made a difference, and I got to grips with it quickly. Even more so, I had such a supportive and kind team alongside me who made sure I was supported every step of the way, and their patience with me whilst I was still adjusting to my role gave me the confidence to ask for help when I was unsure of something.  

This was only possible because of Des and Liz, who are great mentors and team leaders. They made the transition into my role smooth and easy, which made the whole process much more enjoyable. They both have made a big impact on my professional and personal development by allowing me to have a great deal of involvement in the running of the firm, whilst still being on hand to support and guide me.

At present, I now have experience with a variety of different tasks; from drafting an NDA, to attending client meetings, and even reviewing tribunal documents. Had I been given tasks like this to do in the beginning, I would have not known where to start. Now, with a combination of initiative and support from Des, Liz and the team, I can get these tasks done with diligence and a bit of confidence.

Why I Think a Placement Is Extremely Beneficial

If you are in that period of decision-making and thinking about whether you want to do a placement, keep reading to hear why I believe a placement is a great thing to do. 

Firstly, it is a great way to gain transferable skills. If you are an aspiring solicitor or barrister, undertaking a placement at a law firm will allow you to gain technical legal skills needed to excel as a practising solicitor or barrister, such as doing research, drafting, meeting with clients and reviewing documents. 

Secondly, a placement year in industry is valuable to you as a student before you jump into the world of work. Whilst you are a student, you do not really have the opportunity to understand how the world of work looks, since you are focused on your responsibilities as a student. A year in industry gives you a good glimpse of how a career in the industry you wish to pursue looks like. 

Thirdly, it’s all about the networking! A placement is a beneficial time for you as a student, as you get to broaden your networking pool from beyond your university connections. Working at Burley Law has given me the opportunity to meet lots of new people from other businesses (some of them through the firm’s network of clients, some through its broader network) and listen to their experiences, which is a unique opportunity that I am grateful to have experienced. 

The calculation of holiday entitlement and holiday pay for casual workers has become complex.

The background

Workers in Great Britain, including part-time workers, have a right to a minimum of 5.6 weeks’ holiday under the Working Time Regulations 1998 (WTR) – often called ‘statutory entitlement’.  Workers are entitled to be paid at the rate of a week’s pay in respect of each week of leave. This is straightforward for full time and part time workers who work regular hours and whose pay doesn’t vary through the year.

For workers with no normal working hours and variable pay, under the Employment Rights Act 1996 (‘ERA’) a week’s pay means their average weekly pay in a reference period of 52 weeks before the calculation date, which is the first day of the relevant period of holiday.

Casual workers

Before the Supreme Court’s landmark decision in the Harpur Trust case, most employers calculated the holiday entitlement of their workers who worked irregular hours, such as those on zero hours contracts or part-year employees, using the following recommended ACAS guidance: 

• Standard working year is calculated at 46.4 weeks (52 weeks less statutory 5.6 weeks’ holiday entitlement)
• 5.6 weeks is 12.07% of 46.4 weeks
• So, holiday entitlement accrues at the rate of 12.07% of hours worked from standard working year 

12.07% of annualised hours was generally accepted as the correct method of calculating holiday entitlement and holiday pay for workers with irregular hours or part-year workers. 

The Harpur Trust case

The Harpur Trust employed Mrs Brazel, the claimant, as a visiting music teacher at a school which was run by the Trust. Her contract with the Trust was a permanent contract on a zero-hour basis, and she worked most of her employment hours during school term-time. Therefore, she was only paid for the amount of work that she carried out during the time she was working. She was both a ’part-year worker’ because she did not work a full working week and a ‘part time worker’ because, she did not work at all for the Trust during the larger parts of the year (school holidays). 

Her contract stipulated that she was entitled to 5.6 weeks of annual leave to be taken during school holidays. Since school holidays were noticeably longer than the statutory holiday, the Trust calculated her holiday entitlement, and provided her with three equal payments at the end of each school term, in respect of holiday pay. The Trust calculated the holiday entitlement figures using the ACAS guidance and paid her 12.07% of her earnings for the hours she worked at the end of each school term.  

Mrs Brazel brought an employment tribunal claim against The Harpur Trust, claiming that the Trust had unlawfully deducted from her wages as a part-year worker, and that she was treated less favourably as a result of being a part-year employee. She argued that the approach Harpur Trust took with the 12.07% calculation was not consistent with WTR which did not mandate pro rating for those working less than a full year.  

The Employment Tribunal which heard her case dismissed her claims and concluded that part-year employees who were employed for less than 46.4 weeks per year could have their holiday pay capped at the calculated sum of 12.07% hours.  

Mrs Brazel then appealed her case to the EAT and the appeal was upheld. The EAT stated the WTR did not require pro rating of holiday entitlement for part-year employees even if this meant treating them more favourably than full time employees. Thus, Mrs Brazil’s entitlement should not have been capped. Harpur Trust’s appeal to the Court of Appeal failed and the decision was upheld.

The Harpur Trust then appealed the decision to the Supreme Court. The Supreme Court has recently dismissed the Trust’s appeal, giving a similar account of reasoning as the Court of Appeal. 

Key take aways for employers and their advisers

• The 12.07% method is no longer lawful for calculating holiday entitlement or holiday pay for part year workers and should not be used.
• Part-year workers are entitled to the full 5.6 weeks holiday entitlement, not a pro rata entitlement based on the part of the year they have worked.
• When paying holiday for part year workers, the calculation of a week’s pay must be done by averaging their pay over the previous 52 weeks on the first day of their leave. 
• The biggest impact of the decision in Harpur is on hourly paid workers on permanent contracts who, like Mrs Brazel, have non-working weeks during the leave year (for example, seasonal workers, college students working outside term time, or term time workers). The greater the number of non-working weeks, the greater their holiday entitlement (and therefore holiday pay) will be as a percentage of annual working time and earnings.
• Employers who have been using the 12.07% method are now at risk of claims for unlawful deductions from pay going back 2 years.
• While the Harpur case has clarified things for part-year workers, the position is far less clear for workers on zero hours contracts and other casual and part time workers who work throughout the year. It is not clear if this decision applies to them.

How do I stay legally compliant with holiday entitlement and holiday pay?

Following the Harpur decision, the ‘Calendar Method’ is now the only reliable method for calculating holiday pay for any worker who does irregular hours: 

• If an employee takes a week of holiday, they should be paid a week’s pay as calculated by the statutory formula under the ERA (see above). 

Holiday entitlement in days or hours is more difficult to work out if an employee’s hours or days differ per week. The following method has been suggested to guide the employer in their calculation: 

• Base the annual leave entitlement on the number of days in the average week they have worked.
• For example, if in the average week the employee has worked 2.5 days long, then a day’s holiday would be calculated as: 1÷2.5 = 0.4 of a week. 
• Therefore, 0.4 of a week’s pay would be paid and the remaining holiday entitlement would be reduced to 5.2 weeks from 5.6 weeks (the statutory holiday entitlement for all workers including part-year workers). 
• If there is no standard length for a working day, a similar exercise could produce holiday entitlement in hours.

Will this be the end of zero hours contracts?

Zero hours contracts have long been used to give flexibility to both employers and those who want casual working arrangements. However, the administrative burden and cost of holiday for zero hours workers may now mean that employers move away from using them. 

Alternatively, employers may change the way they use zero hours contracts by ensuring workers to do a minimum amount of hours each week when they are not taking holiday.

Our recent Tech Wednesday for the entrepreneurial and technology sector with Bruntwood was a great success.

We went through the different stages of setting up a business, from the development phase all the way to seeking the investment, and we addressed different issues to be aware of to ensure your innovative idea has the best chance of success.

Here is a breakdown of our case study on starting a business with Anna and Ben.

Stage 1: Setting up the business 

Topic 1 = Defining the legal structure of the business

Stage 2: The development stage

Topic 2 = Status of people working in the business

Topic 3 = Confidentiality and workers

Topic 4 = Securing the IP

Stage 3: Launching the product 

Topic 5 = Trade marking your brand

Stage 4: Looking for investment 

By considering all of the above when setting up the business, Ben’s chances of securing investment would have increased.

In conclusion, when you have a fantastic new and innovative idea for a business that can change the market, make sure you look at protecting your company, the product and your ideas starting with how you set up the organisation, what the different roles of people you work with mean and how you can make sure your intellectual property is secure even if the business structure may change.

If you need any more help with this, please reach out to us for an initial chat.

The Equality Act provides that it is unlawful to discriminate against someone because of a protected characteristic. “Religion or belief” is one of the nine specified protected characteristics. “Gender reassignment” and “sex” are also protected characteristics. 

The Forstater case has become the most prominent case on the potential conflict between “gender-critical beliefs” and the rights of transgender and non-binary people, which remains a highly challenging area for employers.

Maya Forstater was a writer and researcher on sustainable development, working for CGD Europe, a not-for-profit think tank, as a visiting fellow and consultant.  She had an active social media presence, including a Twitter account and a personal blog, which predated her involvement with CGD.

Forstater worked for the Centre for Growth Development as a researcher and writer and was active on social media. From 2018, she began tweeting about gender and sex. After her colleagues complained that her tweets were transphobic her visiting fellowship was not renewed and she was not taken on as an employee. 

She brought a claim against her employer, claiming she had been discriminated against because of her philosophical beliefs.

Forstater lost her initial tribunal claim but that judgement was overturned in a landmark decision by the Employment Appeal Tribunal (EAT) last year.  The EAT decided that under the Equality Act 2010, Ms Forstater’s gender critical beliefs were protected as a ‘philosophical belief’ and concluded that although they “may well be profoundly offensive and even distressing to many others…. they are beliefs that are and must be tolerated in a pluralist society”. 

The case went back to a fresh tribunal who recently ruled in her favour that her employer had discriminated her on the basis of her public views on transgenderism, sex and gender criticism by not renewing her contract.

Forstater is a co-founder of the campaign group Sex Matters, a not-for-profit organisation which states they “campaign, advocate and produce resources to promote clarity about sex in public policy, law and culture”. The employment tribunal found evidence that her activism had influenced her employer’s decision not to renew her contract or offer her employment. They also found that Forstater was victimised by her employer when her profile was taken off their website following her complaint.

Maya Forstater released a statement following the decision made by the employment tribunal that her case was important for “everyone who believes in the importance of truth and free speech”. 

What does this decision mean for employers? 

Firstly, this decision is not ‘legally binding’ on employers which means it doesn’t have to be followed in future tribunal cases featuring religion or belief discrimination. It could also be overturned on appeal.

Secondly, the EAT decision in Forstater reminds us that many philosophical beliefs are protected under the Equality Act 2010 (EQA). This means employers need to be aware that disciplining someone for simply holding their belief, even if it may be offensive to other employees, may be regarded as unlawful direct discrimination by the employment tribunal. The only exception to this rule, is where the belief becomes extreme e.g., Nazism, Totalitarianism. 

The Forstater case does not mean that employees are free to exercise their views in the workplace without consequences.  If someone’s belief results in them bullying or harassing other employees, then disciplinary action (or even dismissal if the circumstances justify it) is likely to be fair and a tribunal would have little sympathy with a claim for religion or belief discrimination in this situation. For example, in another recent tribunal case a Christian doctor who held a strong belief about transgenderism and refused to use the preferred pronouns of transgender individuals, was found to have been fairly dismissed and his claim of discrimination failed. 

The Forstater decision, although likely to be unpopular with the transgender community, demonstrates the tricky balancing act employers must carry out between the competing rights of different groups in the workplace, and reminds us that free speech is a cornerstone of UK law.  

Weather conditions are set to change this week, with the Met Office forecasting heatwaves throughout and temperatures looking to soar to 37 degrees in some parts of the UK early next week. 

Unlike other European countries where it is normal for work to stop in the middle of the day during the hot summer and restart later in the day when it is cooler, the UK workforce will be expected to battle on in the heat.  But is there anything that employers can do to help?

The Trades Union Congress (TUC) who oversees Trade Unions across the UK have urged employers to make adjustments to the workplace in order to accommodate employees during these hot weather conditions. 

Hot weather causes many disadvantages for workers, not only can it lead to health issues such as dehydration, but outdoor workers are at a much higher risk of developing skin cancer (with them being 3 times more likely to develop the illness than on average).  Apart from health and safety, there is also a question over how productive employees can be in hot conditions.

Currently, there is no proposed law which governs a legal maximum temperature for the workplace, however, the employers must still ensure that the workplace temperature is “reasonable”, with 16 degrees as a minimum guideline.  They are also under a duty to provide a safe place of work.

37 ministers from the House of Commons have also signed a motion which, if successful, would implement a legal duty upon employers to take reasonable action for the wellbeing of their employees such as having ventilation installed, and allowing employees to be away from areas which causes excessive heat in temperature. 

The TUC boss Frances O’Grady says ‘nobody should be made to suffer in the heat for the sake of keeping up appearances’. 

What can employers do to support their employees in the heatwave? 

Employers are encouraged to allow their employees to have later starts or finish early in order to avoid the extreme heat when commuting. Employers should also consider giving their employees flexible hours or work from home options if possible, as well as a more relaxed dress code in these conditions. 

Other measures could include providing ice creams or cooling drinks to keep people cool through the day. 

Small measures like this can be key to employee wellbeing and engagement which ultimately contributes to business success, so well worth implementing.

When the ITV This Morning menopause bus started its tour, the first stop was Birmingham, where Lisa Snowdon was at the Bullring shopping centre speaking to families affected by the menopause as well as one of our clients The Night Owl, a local business who are leading the way by implementing a menopause policy to help their female staff.

Watch the whole interview here.

It was a pleasure to be featured on This Morning to discuss our Menopause policy as part of their Menopause bus tour around the UK❤️

If you missed it, you can watch it back on ITV Hub here 👉 https://t.co/9VASggG72K pic.twitter.com/quEP1lk5VE

— The Night Owl (@thenightowlbham) July 12, 2022

The 4-day working week. To employees this sounds like a dream, but to employers it can come with its fair share of complexities. Launched at the start of June, some UK companies will be trialing a 4-day working week for six months. Pilot schemes have already taken place in Spain, Ireland and Iceland. With the main focus being on the social, emotional and physical implications of this change, we will address some of the legal implications that could impact your business if you opt to change to a 4-day working week. 

The 4-day week pilot scheme – what is it?

Essentially instead of working five days a week, participants will be dropping a day, whilst maintaining the same rate of pay and productivity levels. 

Supporting the pilot, The 4 Day Week Campaign points out that the standard 9-5, 5 day working week is outdated and no longer fit for purpose. They also say that the concept of the weekend was invented a century ago and an update to working hours is long overdue.

Whilst this is the first time the 4-day working week is being trialed in the UK, the notion isn’t new. Back in the 1950s, President Nixon stated that this change was ‘inevitable’, and after the pandemic many employers and employees have reassessed their working patterns. The country of Iceland pivoted to (mostly) a national 4-day work week last year, as a reaction to the pandemic and around 85% of workers in Iceland are currently, or on the way to, working four days a week instead of five. 

With most of the UK working population forced to work from home from May 2020, traditional working times were adapted to help accommodate caring for children, being at home 24/7 and working online. This proved that flexible working is realistic, and you don’t have to work the usual 9am-5pm Monday to Friday to be as productive as in the office, leading to many employees changing what they value in an employer. 

Arguments for:

There is a strong case for a 4-day working week, with many workers feeling ‘burnt out’, arguments for boosting tourism and smaller carbon footprints, being cited among the reasons and benefits. 

A significant argument for reducing the working week is that it will increase productivity. In comparison to the majority of Europe, the UK works longer hours yet still has a lower productivity rate, for example the UK’s productivity rate is 15% below that of France, so maybe it is time for a change. Evidence from a trial run in Japan’s Microsoft office shows that when hours were reduced by 20% productivity increased by 40%. By cutting a day, experts are claiming that productivity will be increased and there will be fewer distractions. 

Offering a 4-day working week is also said to attract and retain talent within an organisation. Post-pandemic, staff may look for an employer who is willing to offer flexible and hybrid working. It can be seen as an incentive to only be working for 4 days instead of 5 without having a reduction of pay and this will be a pull factor for many job seekers and will also prevent current employees from seeking employment elsewhere.

Covid-19 highlighted how important mental health is and reducing the working week will have positive impacts on people’s mental as well as physical health. Health and Safety Executive 2018 data reported that a quarter of all sick days taken were related to being overworked. By implementing this change, it is hoped that the extra day off will help relieve stress, rejuvenate people and give people more time to spend with their families and enjoying hobbies. 

Arguments against:

Whilst it might seem like a great idea at first glance, attention should be brought to the drawbacks which come with reducing the working week. For example, it will not fit every business model and sectors such as the education or healthcare industries would undoubtedly find it difficult to function on a 4-day week. These businesses which cannot offer a 4-day working week might lose staff to other sectors which could result in a shortage of workers and increased job vacancies. 

Not all staff members will want to reduce their hours too and if this is the case, will companies be prepared to pay those working 5 days overtime to avoid disparity? What about part time staff? It is arguable that their pay should be increased to level them up with full time employees if the 4-day week is implemented. This could all lead to increased costs for the organisation. Alongside this, team management and interaction would be more difficult where days off are scattered through the week.

The UK already has one of the lowest productivity rates in Europe and this could easily worsen by switching to a 4-day working week. The idea that 5 days of work can be fitted into 4 days assumes that productivity will increase, but this is not guaranteed especially for employees who already struggle to get their allocated work done in 5 days. The change may create more work for employees working 5 days or on colleagues’ days off. It may also increase stress levels as staff may feel forced to work longer hours over 4 days in order to complete tasks. 

Legal implications:

The legal implications of a 4-day working week should be considered before implementing it into your organisation – it isn’t as simple as just staying home on a Friday. 

Attention needs to be brought to what will happen with holiday entitlement. With a day being cut, would annual leave entitlement be reduced by 20% to reflect working 4 days? This would take full time workers with 20 days off, or even less if bank holidays are included within their usual 28 days’ leave. These changes would need to be addressed in employment contracts to become terms of employment. 

It is also unclear what will happen with part-time staff. There are a few options which could be considered such as cutting their hours in line with full time workers’ hours but keeping their pay the same. Companies might also opt to increase their pay or adjust their annual leave, or a combination of the above options. 

Workers who are self-employed or on zero-hour contracts may not benefit from a 4-day working week and wider policy changes would be needed to accommodate all types of workers. This is not one size fits all concept and crucial for organisations to discuss it with their employees to find a solution that suits everyone. 

If productivity does decrease as a result of switching to 4 days, companies should put in place measures to minimise this risk of falling behind on work. This can be done in many ways such as reducing the amount of (unnecessary) meetings or the length of meetings and sharing the workload out. If employees are struggling to stay on track whilst working 5 days, then maybe an internal review is needed to see where the system is failing. 

As the trial proceeds, it is important to bear in mind that if you’re thinking of making this switch, your experience will be different to others’ and it’s essential to find a solution that works best for your company. Whist it could be a gamechanger for the working culture in the UK, the future of the 4-day working week is by no means certain at this stage – we await the trial outcome with interest. 

Check out our Linkedin Poll: Are you in favour of a 4-day working week?

Let’s set the scene. Your business is your baby – you’ve helped it grow through the early stages; watched it mature as the years go on; and finally, you’re letting it go off to venture out on its own – it’s now time to sell. The date is set, the value is right, and all that’s left is to sign the papers – but the buyer starts asking questions about whether the business truly owns the intellectual property (IP). It becomes clear they’ve done their IP homework. Confusion fogs your mind, and you start backtracking, trying to remember who worked on the IP – it was only your employees and that *lightbulb moment* INTERN! The fog begins to clear, and you remember where you went wrong.

A common mistake people make when developing their company’s IP is forgetting who worked on it. The general rule is that the creator of IP owns it and therefore using it without their permission can result in infringement. This can lead to all sorts of headaches, not to mention costs, which is why it’s so important to take measures to prevent ever reaching this situation.

Despite what you may hear, it is all about status, but not in the hierarchical sense. If the intern has the status of ‘employee’, this is less of an issue as an employment contract can act as an assignment document, transferring any IP produced by the intern, during their course of employment, to the company. 

However, if the intern does not have ‘employee’ status, which is usually the case, then special care must be taken before they create any new IP. Interns carrying out research and development should sign a contract before starting which clearly expresses that any IP they create will belong to the company. If they’ve already started work, as soon as it is practicable, you should ask them to sign an assignment document which will transfer any IP they have created or will create in the future to the company. It is also wise to have interns sign a non-disclosure agreement/confidentiality agreement to protect the business’ commercially sensitive information.  

Interns are a valuable resource, they’re a way of identifying future talent, and they help the business grow. It is therefore imperative that work they do during their internship belongs to the company and steps are taken to ensure things don’t go awry.