conducted their own meetings and they were required to obtain WWUK's specific approval in relation to time, date and place of any meetings. Although the contract contained an express substitution clause, the Leaders were obliged to find a suitably qualified replacement if they did not want to lead a meeting. The Upper Tribunal dismissed WWUK's appeal and concluded that the Leaders were employees of WWUK rather than self employed contractors. The Upper Tribunal held that the Leaders were required to provide their services personally and that WWUK imposed a high degree of control as they were required to follow WWUK's programme and expected to turn up and conduct the meetings at a certain time and place each week. Whilst WWUK had written a 'substitution clause' into the contracts, the Upper Tribunal adopted a purposive interpretation of the contracts in accordance with the decision of the Supreme Court in the case of Autoclenz v Belcher and concluded that in reality, the right to substitute was "fettered" because the Leaders were required to find a suitably qualified replacement and show good reason for proposing not to take a meeting.
RESTRICTIVE COVENTANTS
22 February 2012 What does "solicitation" mean in a post termination non solicitation clause? Pinsent Mason reports:
In Towry EJ Limited v Barry Bennett and others , in a 350 page judgment handed down Mrs Justice Cox held that it should be generally defined as meaning if an employee "directly or indirectly request[s], persuade[s] or encourage [s] clients of their former employer to transfer their business to their new employer" (para 440) So far, so straightforward. However, how can an employer actually show that a former employee has solicited former clients in breach of a non solicitation clause? Can this solicitation be inferred only from the fact that a "tidal wave" of clients have moved across to the business where the old employees now work where there is no primary evidence of requesting, persuasion or encouragement by those employees? In Towry, Mrs Justice Cox's answer was "no". The Claimnt was not able to show that those clients had not moved across out of a sense of loyalty towards their former employee rather than due to request/persuasion/ encouragement (para 884). Mrs Justice Cox did not hold that a wholly inferential case would have been impossible (see para 893-4) just that the burden of proof rests firmly on the employer - who was placed in the unenviable position of cross examining a catalogue of its former clients. This case demonstrates the key difference in strength between a "non dealing" post termination restriction and a significantly less strong "non solicitation clause". Had the employees had non dealing clauses in their contracts, their conduct would have been straightforwardly unlawful.
SHARES IN CASH BOX COMPANIES SHOULD BE SUBJECT TO INCOME TAX
22 February 2012 Shares awarded to employees in 'cash box' companies as part of an avoidance scheme are 'readily convertible assets' on which an employer must account for income tax under PAYE.
CIPP Policy News Journal
09/10/2012, Page 64 of 234
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