Framlington Group Ltd and Axa Framlington Group Ltd v Barnetson (Court of Appeal)
Hot on the heels of Brunel University & Schwartz v Webster & Vaseghi (see case of the week, Personnel Today, 12 June), which dealt with the circumstances in which the 'without prejudice' rule can be set aside, comes a second Court of Appeal case - Framlington Group Ltd and Axa Framlington Group Ltd v Barnetson.
Written or oral communications made in a genuine attempt to resolve a dispute will generally be protected by the without prejudice rule. This means that those communications cannot be used as evidence in court proceedings in relation to that dispute.
It is well established that where settlement negotiations occur in the context of litigation, or threatened litigation, those negotiations will be covered by the without prejudice rule. However, in the 2004 case of BNP Paribas v Ms A Mezzotero the EAT restricted the operation of the rule and said that it would only apply where litigation was likely and not before that point.
Framlington follows on from Mezzotero, and considers, for the first time, whether discussions that took place months before litigation started, or was even likely, will be covered by the rule.
Facts
In early 2005, Mr Barnetson started employment as chief operating officer at Framlington Group Ltd. He was told that his orally agreed terms and conditions would be confirmed in writing at a later date. However, when Barnetson pursued this written confirmation, a difference of opinion arose as to the terms that had been agreed. Discussions around his terms took place until the end of October 2005, at which point Framlington told Barnetson it intended to dismiss him at the end of the year.
Further negotiations ensued, during which a compromise agreement was produced and Barnetson set out the terms on which he would be prepared to settle. These discussions broke down and on 20 December 2005, Barnetson was given notice that his employment would terminate.
Barnetson brought proceedings for damages for wrongful dismissal in April 2006. Framlington alleged that certain parts of Barnetson's witness statement in support of his claim should not be allowed because they related to without prejudice discussions that had taken place between the end of October and 20 December 2005. The High Court judge rejected this argument. Framlington appealed.
Decision
The Court of Appeal held that, once Framlington had told Barnetson it intended to dismiss him, the discussions that followed were without prejudice and could not, therefore, be used as evidence in the court proceedings.
There was a public policy consideration underlying the without prejudice rule namely, to encourage people to settle their disputes without resorting to litigation. In light of this aim, it was not appropriate to set a time limit prior to litigation before which any discussions would not be protected. Rather, courts should determine the point at which, during the course of negotiations, the parties contemplated, or might reasonably have contemplated, litigation if they could not reach agreement.
Key implications
This case clarifies the circumstances in which discussions with staff will be covered by the without prejudice rule:
There is no need for litigation to be threatened or underway for negotiations to be protected. If it is clear that the parties understood that litigation might result if the negotiations failed, then such discussions are likely to be protected.
The discussions in this case were only protected from the point at which Barnetson was told of his employer's intention to dismiss him. Discussions during internal grievances are unlikely to be protected.
By Laura Green, assistant solicitor, Lovells' Employment Group
HR Link : http://www.personneltoday.com
Showing posts with label กรณีศึกษา. Show all posts
Showing posts with label กรณีศึกษา. Show all posts
Saturday, July 28, 2007
Ownership of contacts lists after employment has ended
PennWell Publishing (UK) Limited v Isles
Who owns a contacts list maintained by an employee in Outlook on the employer's computer system? In PennWell Publishing (UK) Limited v Isles, the High Court decided that the list belonged to the employer, despite the fact that it contained personal contacts and contacts that the employee had made before his employment had started.
Background
Mr Isles, a journalist, was employed as a publisher and conference chairman for PennWell. During his employment, he created and maintained a contacts list on PennWell's Outlook system, which included personal contacts, journalistic contacts and contacts that he had made before his employment started, as well as business contacts that he developed in his role with PennWell.
After Isles left PennWell to set up a competing business, it discovered that he had downloaded the entire Outlook contacts list from his work laptop.
Isles's contract stated that all documents used during employment belonged to the company and had to be returned before he left.
PennWell applied for an injunction for the return of the contacts list. Isles argued that most of the contacts on the list were personal to him.
Decision
The High Court had to decide whether the contacts list belonged exclusively to either PennWell or Isles or whether it was jointly owned by both.
The High Court said that where an address list is contained in Outlook or a similar software that is part of the employer's e-mail system and backed-up by the employer, the database or list belongs to the employer and may not be copied or removed in its entirety by employees for use outside or after employment. The High Court said that it would be "highly desirable" for employers to publish e-mail policies to communicate this to employees. While PennWell had an appropriate e-mail policy, the policy had not been effectively communicated to Isles and, therefore, PennWell was not entitled to rely on it.
Had Isles maintained his list of contacts as a separate, private address book, he would most likely have been entitled to that list. The court distinguished between contacts developed for the purposes of employment, where removal of contact information would be detrimental to the employer, and other contacts that an employee might keep for career purposes.
The court concluded that the list belonged to PennWell, but that Isles could copy from it his journalistic contacts and those made before his employment started.
Key implications
The confusion over ownership of the contacts lists that led to this case coming to court highlights the need for clear policies on ownership of contacts information. Employers should as a minimum:
Review e-mail policies to ensure they clearly identify what information is considered to belong to the employer, and confirm that it may not be removed or copied.
Communicate e-mail policies to all existing staff and bring these to the attention of new employees.
Ensure that confidentiality and return of property provisions in contracts cover contacts information and state what information will be protected/must be returned after employment.
Consider giving employees the option of a personal contacts folder to maintain contacts that are personal and/or those that pre-date employment.
Judith Harris, professional support lawyer, Addleshaw Goddard
HR : http://www.personneltoday.com
Who owns a contacts list maintained by an employee in Outlook on the employer's computer system? In PennWell Publishing (UK) Limited v Isles, the High Court decided that the list belonged to the employer, despite the fact that it contained personal contacts and contacts that the employee had made before his employment had started.
Background
Mr Isles, a journalist, was employed as a publisher and conference chairman for PennWell. During his employment, he created and maintained a contacts list on PennWell's Outlook system, which included personal contacts, journalistic contacts and contacts that he had made before his employment started, as well as business contacts that he developed in his role with PennWell.
After Isles left PennWell to set up a competing business, it discovered that he had downloaded the entire Outlook contacts list from his work laptop.
Isles's contract stated that all documents used during employment belonged to the company and had to be returned before he left.
PennWell applied for an injunction for the return of the contacts list. Isles argued that most of the contacts on the list were personal to him.
Decision
The High Court had to decide whether the contacts list belonged exclusively to either PennWell or Isles or whether it was jointly owned by both.
The High Court said that where an address list is contained in Outlook or a similar software that is part of the employer's e-mail system and backed-up by the employer, the database or list belongs to the employer and may not be copied or removed in its entirety by employees for use outside or after employment. The High Court said that it would be "highly desirable" for employers to publish e-mail policies to communicate this to employees. While PennWell had an appropriate e-mail policy, the policy had not been effectively communicated to Isles and, therefore, PennWell was not entitled to rely on it.
Had Isles maintained his list of contacts as a separate, private address book, he would most likely have been entitled to that list. The court distinguished between contacts developed for the purposes of employment, where removal of contact information would be detrimental to the employer, and other contacts that an employee might keep for career purposes.
The court concluded that the list belonged to PennWell, but that Isles could copy from it his journalistic contacts and those made before his employment started.
Key implications
The confusion over ownership of the contacts lists that led to this case coming to court highlights the need for clear policies on ownership of contacts information. Employers should as a minimum:
Review e-mail policies to ensure they clearly identify what information is considered to belong to the employer, and confirm that it may not be removed or copied.
Communicate e-mail policies to all existing staff and bring these to the attention of new employees.
Ensure that confidentiality and return of property provisions in contracts cover contacts information and state what information will be protected/must be returned after employment.
Consider giving employees the option of a personal contacts folder to maintain contacts that are personal and/or those that pre-date employment.
Judith Harris, professional support lawyer, Addleshaw Goddard
HR : http://www.personneltoday.com
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