Legal Updates


photo-1437147921639-ef00e030265aAs of September 28, 2015, the Canadian Trade-marks Office  (“CIPO”) indicated that it accepts trade-mark applications with the goods and services grouped and classed according to the Nice Classification system.  CIPO issued a Practice Notice entitled Nice Classification on September 28, 2015.  Prior to September 28th, the Nice classification system was not used in Canada for filing trade-mark applications.

Canada is in the process of changing its trade-mark law, but those changes are not yet in full force. Therefore, the Practice Notice indicates that the provision of the Nice classes in the application is voluntary at this time. 

Read full article

Is Your Health Care Facility Prepared for the Next Pandemic Disease? Failure to Prepare Could Lead to OSHA Liability

shutterstock_ebolaThe Ebola outbreak of October 2014 and the infection of health care workers treating infected patients in the United States  dominated the headlines and frightened the nation.  One year later, training and preparation for the next Ebola is fragmented and some nurses feel unprepared for the next pandemic disease.  The Department of Health and Human Services (HHS) designated a system of 55 hospitals nationwide to manage suspected Ebola cases, but all hospitals have the potential to encounter a patient infected with Ebola or other pandemic disease, just as Texas Health Presbyterian Hospital discovered last year when a patient infected with Ebola presented to its emergency department.  Subsequently, two of the hospital’s nurses contracted Ebola while attempting to provide lifesaving care to this patient.  OSHA did not penalize the hospital because it was one of the first facilities to provide care to a patient infected with the virus.  But it is entirely possible that OSHA could issue citations to hospitals that remain unprepared to safely respond to pandemic diseases now that a year has passed and engineering and administrative controls effective in reducing the spread of infectious diseases are now much more commonly known. 

Read full article

Court of Appeal Finds Judicial Bias in Bizarre Child Custody Case

In a recent decision (Clayson-Martin v. Martin, 20015 ONCA 596), the Court of Appeal for Ontario overturned a family trial judge’s decision on the basis of a reasonable apprehension of bias.
The case involved a custody and access dispute over children aged 10 and 7.  At trial, the judge granted the wife sole custody of the children.  The wife appealed that decision because it provided for the children to have generous access to the husband.  The wife submitted that access should have been terminated because the husband tried to kill her.  The case garnered some notoriety in the news because of the alleged attempted murder.  The couple separated as a result of an incident which occurred while they were on vacation in Jamaica.  Each party alleged that at the end of the vacation, while they were on a deserted road from which the husband had wanted to photograph their hotel, the other attacked with a knife. 
Read full article

EU Succession Regulation

One of the European Union’s core ideals is the free movement of people and goods.  For many years the different succession laws that exist in the European Union have been a barrier to this idea.    To counteract this the Succession Regulation (EU) No 650/2012) (“Brussels IV”) was adopted on 4 July 2012, although implementation was delayed until 17 August 2015.

The Irish, Danish and UK Governments exercised their right not to opt in to the Brussels IV as there was the possibility there it would introduce a power to claw back lifetime gifts into non-forced heirship jurisdictions, such as the UK.  This power already exists in forced heirship jurisdictions. It was felt that this would introduce uncertainty and complexity in the UK.

Read full article

Employee Fired by Text Wins Tribunal Hearing: A Cautionary Tale of Wage Rates

A Chef, who was dismissed via text message after questioning his rate of pay, has been awarded more than £15,000 after an unfair dismissal finding by an employment tribunal.

Christopher Hillis, a former chef at Glasgow restaurant Cail Bruich, asked the owner of the establishment about his pay being less than the national minimum wage on 19th September of last year after being employed for five months. The following day he called in sick and on 22nd September sent a text to his manager enquiring when his next shift was. The reply he received accused him of inventing his illness, was abusive in nature and resulted in dismissal, concluding with: “We don’t want you back”.

The Tribunal found that Mr. Hillis had been unfairly dismissed and awarded him compensation totalling £15,157 for unfair dismissal, breach of contract and claims under national minimum wage regulations. The tribunal found that the underpayment of wage was substantial, with Mr Hillis’ being paid £134 per week less than he should have received. He was also prevented from taking breaks because the kitchen was too busy, meaning his hourly rate was around £4.

This case highlights several issues critical to the employee-employer relationship, including the operation of the national minimum wage.

National Minimum Wage

The National Minimum Wage (NMW) is the minimum pay per hour almost all workers are entitled to by law. All employers must pay an employee wages, which is broadly calculated according to a worker’s age and whether they are carrying out an apprenticeship.

New National Minimum Wage Regulations 2015 came into force on 6 April 2015 and consolidated and replaced the National Minimum Wage Regulations 1999 and a further 27 other statutory instruments. Responsibility for enforcing the NMW falls to HM Revenue and Customs, which has the ability not only to enforce payments of the NMW but also to impose penalties on employers who flaunt the regulations. The repercussions for non-compliance include:

  • The ability to ‘name and shame’ employers who break NMW regulations, leading to public awareness of their business practice and more extensive media publication;
  • Forcing underpaying employers to pay arrears of wages at the current minimum wage rate and the ability to impose financial penalties of up to £20,000;
  • Serious violations may result in employers facing criminal prosecution.

Employers are permitted 28 days to appeal against a Notice of Underpayment. If no appeal is lodged or the appeal is unsuccessful, the Government will consider taking further action, such as publishing their name under the ‘name and shame’ scheme.

As of the 1st October 2015, the NWM rates will rise to:

  • £6.70 for workers 21 and over
  • £5.30 for 18 – 20 year olds
  • £3.87 for 16-17 year olds (those above school leaving age but under 18)
  • £3.30 for apprentices under 19 or 19 or over who are in the first year of apprenticeship.

Perhaps the most important aspect of the regulations’ changes is the introduction of the compulsory National Living Wage, due to be introduced in April 2016. This will set wage rates at £7.20 per hour for working people aged 25 and over.

There are a number of people who are not entitled to the NMW. These include:

  • Self-employed people;
  • Volunteers or voluntary workers;
  • Family members, or people who live in the family home of the employer who undertake household tasks;
  • Company directors.

All other workers, including flex workers, agency workers, commission workers and part-time workers must receive at least the NMW. It is the employer’s responsibility to ensure that each employee is paid appropriately.

An enquiry by employees regarding these rates should be welcomed with reference to these rates and justifications for that employee’s pay depending on their status.


The workplace environment, particularly in small organisations, can often lead to stressful and emotionally driven responses to incidents. Nevertheless, employers have a statutory responsibility to pay their employees appropriately. Emotional and personally motivated decisions taken in an employment context will likely be looked at very unfavourably by Employment Tribunals and may result in a similar outcome to that in the case of Mr. Hillis.

Contact our Employment Lawyers in Glasgow

If you require legal advice regarding any employment issue our team of employment lawyers can help. To discuss any problems you may have, contact our team today using our online contact form or call us on 0141 530 9164.

Read full article

Avon Settles Bribery Related Class Action

Avon Products Inc. (“Avon”) recently settled a class action lawsuit brought against the beauty products company and two former executives concerning Avon’s compliance with the US Foreign Corrupt Practices Act(“FCPA”).  Avon settled the lawsuit despite the fact that the US District Court for the Southern District of New York (“Court”) had granted a motion to dismiss the lawsuit.  In the action, certain of the company’s shareholders had alleged that Avon and its former executives had issued materially false and misleading statements concerning Avon’s compliance with the FCPA by concealing that the company had given bribes to Chinese government officials by various means, including providing lavish gifts and paying travel expenses improperly. 
Read full article

New York Attorney General Is Latest Regulator to Challenge the Auto Industry

Recently, I co-authored the below advertising alert with Advertising, Marketing & Promotions Partner, Matt Smith.

On the heels of recent high-profile enforcement actions by both the Federal Trade Commission (FTC) and the Consumer Financial Protection Bureau (CFPB) against the automobile industry, the New York Attorney General (NYAG) has now zeroed in on the industry as well. 

Read full article

Can 3-D Scanning and Printing be a Copyright Infringement?

Plastic head printed on 3D printedSuppose that you have a unique configuration for your physical object. You find out that your competitor has scanned the configuration of your object and is printing the object with a three-dimensional (3-D) printer. Is there anything you can do?  The answer is YES!

Let’s suppose you have created a physical object such as a lamp.  The base of the lamp has a decorative configuration that is capable of existing independently of the utilitarian aspects of the lamp.  The decorative configuration has a unique design that gives an aesthetic appearance that is not functional.  However, you did not file for a design patent and the time period has passed for obtaining patent protection.  Now, a competitor is scanning your lamp base and reproducing the decorative configuration through 3-D printing and competing against you.  Is there any other form of intellectual property protection that you can use to prevent this situation from continuing? 

Read full article

Meal Periods with Travel Restrictions May be Compensable

In Naylor v. Securiguard, Inc., the Fifth Circuit Court of Appeals held that an employer may be required to compensate employees for meal breaks if the employees are required to spend a significant portion of that period traveling to a required break area. 

Read full article

Mobile workers and travel time


Regular readers of the Miller Samuel blog will remember back in late June we posted a piece looking at an opinion of one of the Advocates General of the European Court of Justice (ECJ). The opinion related to a case – Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL – which was at the time due to be considered by the ECJ. By way of brief recap, the main issue was whether peripatetic employees – mobile workers without a regular fixed place of work – were to be considered at work when travelling directly from home to their first daily assignment and when returning home from their final assignment at the end of their working day. It was the opinion of the Advocate General (Yves Bot) that this travel time for peripatetic employees ought to be regarded as time spent “at work”. 

Read full article