Two commonly misunderstood terms in employment law are Unfair Dismissal and Wrongful Dismissal, although they sound similar, they differ in their legal basis, focus and remedies.

Legal Basis

Unfair dismissal is governed by the Employment Rights Act 1966 and focuses on whether the employer’s decision to terminate the employee was justified and handled fairly. Employees are required to have a period of two years qualifying service in order to challenge their dismissal as unfair, if they believe it was without a valid reason or carried out improperly.

Wrongful dismissal, however, arises from contract law rather than statutory law. It occurs when an employer breaches the terms of an employee’s contract e.g., failing to provide the correct notice period (or payment in lieu of notice). A wrongful dismissal claim does not focus on the reason for dismissal but rather on whether the employer adhered to the agreed contractual terms.

Focus

For Unfair Dismissal, the focus is on the reason and process of dismissal, for example being dismissed for discriminatory reasons, without a valid reason e.g redundancy or not following a proper disciplinary or grievance procedure. For Wrongful Dismissal, however, the focus is on the contractual rights of the employee. For example, an employee might claim Wrongful Dismissal if the employer dismisses them without serving the correct notice period and the dismissal breaches other terms of their contract.

Eligibility

To be able to make a claim for Unfair Dismissal, employees generally need to have a minimum of two years qualifying period of continuous employment to bring a claim. Certain dismissals, for example those related to discrimination or whistleblowing are deemed automatically unfair and do not require a qualifying period.

For Wrongful Dismissal, there is no minimum service requirement and any employee with a valid contract can bring a claim for Wrongful Dismissal if their contractual terms are breached.

Remedies

Remedies for Unfair Dismissal are determined by a Tribunal and can include the following:

1. Reinstatement to the employee’s former role

2. Re-engagement in a similar role

3. Compensation, which often consists of a basic award and a compensatory award based onlost earnings and future prospects

Remedies for Wrongful Dismissal is primarily damages to compensate the employee for the financial loss caused by the breach of contract. This damage usually covers the unpaid notice period or other contractual entitlements e.g., bonuses or benefits.

Recent changes that have been made to the law

The government has recently introduced some reforms to the law which aims to enhance worker protections and modify existing employment practices. One of the biggest changes they have introduced is a day one right to claim Unfair Dismissal instead of needing to have a minimum of two years of continuous employment. This is beneficial to employees as they would gain immediate protection against being unfairly dismissed, which would improve their sense of security and confidence in their workplace. However, for employers, it would mean they would need to be more diligent from day one in documenting reasons for termination to ensure it complies with the law.

To conclude, Unfair Dismissal and Wrongful Dismissal both relate to the termination of employment, however their distinctions lie in the underlying laws, focus and remedies. Employers must ensure that they follow the correct procedures and contractual obligations to minimise the risk of disputes.

For employees, understanding these key differences can help in seeking the appropriate legal advice if they believe their dismissal was unfair or unlawful.

 If you are facing a dismissal issue and would like to seek legal advice further, please contact our Employment Law team on 01604 936512 / 01908 953674 or email info@franklins-sols.co.uk.

The video game industry is constantly expending with not only multi-national corporation but also small publishers who develop games worldwide making it a multi-billion-dollar global market. From developers to publishers and distributors, all parties involved in this industry have to navigate complex legal issues. These include, amongst other things, licensing.

Video game licensing encompasses areas such as intellectual property law, contract law and competition law.

  1. Copyright

Video game licensing is partly governed by copyright law as video games are considered to be literary and artistic works, which are protected under copyright law.

Under copyright law, the inventor of the game will be the owner of it and will therefore get exclusive rights to reproduce or distribute the game. With licensing, this allows the owner to grant specific rights to third parties (i.e. distributors, publishers etc) for a consideration.

  1. Trademark

When creating a video game, developers will often include distinctive names or logos. Under trademark law, these would be protected against unlawful use by third parties. However, licensing would play a significant role in the development and distribution of the game worldwide. As for copyright, the owner of the trademark would license the right to use the trademark, therefore allowing third parties to use the names, logos or character.

This would be the case when merchandise is developed, such as clothes, figurines or goods in general.

Notwithstanding the above, there are a wide range of elements to take into consideration when preparing a licence agreement and specific provisions would have to be included within such a document, such as:

Video games licensing is a complex field of law and our commercial team would be happy to assist companies with the process.

For further advice and assistance please contact our Commercial Solicitors on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

The Coronavirus pandemic has caused the Government to order the mandatory closure of all schools and nurseries across the United Kingdom, but where does that leave those parents whose children attend independent schools and nurseries? This is a concern that has been raised by many parents who are unsure as to whether they are entitled to a refund in respect of those fees that they have already paid for the remainder of the school year.

Undertaking a review of the terms of any parent contract that you may have entered into with the school and/or nursery in question when your child first joined, is key to understanding the contractual obligations and liabilities imposed upon you and whether you will be entitled to claim a refund for all, or some, of the school fees that have been paid for the following term. Some independent schools and nurseries may not have envisaged a closure of this nature and whilst some are offering a reduction in fees in light of the un-planned closures, this is not the case across the board.

If you have taken out a school fees insurance policy that may provide you with some protection, however careful consideration of the policy wording and terms is required in order to assess whether you will be entitled to claim. In any event, you should firstly make contact with the school and/or nursery to establish how they are proposing to deal with the current crisis.

Understanding your legal position in light of the Coronavirus pandemic is crucial to determining your right to a refund.

If you require any legal assistance with regards to understanding the terms of a parent contract or insurance policy, or if you are in dispute with a school and/or nursery at present and require our assistance to draft a suitable letter on your behalf, then please do not hesitate to contact Christopher Buck, Associate Partner in the Commercial Services Department on 01908 660966 / 01604 828282 or email christopher.buck@franklins-sols.co.uk.

Key task for now…and in the future

The first task for any business is to review their contracts and these may vary depending upon whether your company negotiates a bespoke contract for each business relationship.

The second job, is to ensure that any contract you are entering into from now on has a wider drafted “force majeure” clause or exclusion clause to cover situations like this or ones that arise that are similar.

Why do I need to do this when the government has declared COVID-19 a pandemic?

Whereas the Chinese Government has issued force majeure certificates to companies that are unable in the current outbreak of the virus to satisfy their commercial terms, companies in England and Wales will find their position governed by their contract.

Key clauses in your contract

The key clauses to review in your contract are:-

Why does everyone refer to force majeure and what does that mean?

Evident from its spelling, force majeure, is not an English term. It originated from French law.

This type of clause will usually outline what happens in the event of something unforeseen happening and what impact it has on the parties to the contract.

The principle is that if an event, defined in the contract, occurred that was out of the control of the parties, they could seek to rely upon this clause. The party unable to fulfil the contract are effectively excused from performing their obligations or entitled to suspend performing them. Law is rarely straight forward though so it will depend upon the circumstances and what the parties envisaged at the time the contract was drawn up.

These types of “force majeure” events are usually extreme and ones not caused by either contracting party.  In the past, they have been natural disasters and war.  Whether or not the current COVID-19 is such an unforeseeable event will depend upon how this has been defined within the contract itself.  Some clauses will refer to disease or epidemics.

Too late to add an exclusion clause?

A force majeure clause cannot be added to a contract at a later date. The parties seeking to use this specific exclusion have to rely upon what was understood at the time the clause was drafted.

The Courts when considering these clauses, interpret them true to their wording and therefore strictly.

Type of wording to look out for

The scope of the clause therefore would dictate its coverage.

Frustration

There will probably be a lot of frustration with the uncertainties…but the legal implications of a contract frustrated are clear.

It may be that if your force majeure or clause does not apply, then your contract could be frustrated under English law.  Frustration means that if an event prevents a party fulfilling its contractual obligations and they are commercially impossible, the contract can be deemed frustrated.

The contract is automatically terminated upon the occurrence of the frustrating event.  As neither party is at fault and there is no party therefore against whom damages can be claimed, the common law provides that losses are dealt with where they lie.

Would a Court classify the COVID-19 as a force majeure event?

It depends upon your contract.

There is currently very limited case law testing the scope of the clause and we go back to 1920 and the case of Lebeaupin v Crispin [1920] 2 KB 714 which suggests that an epidemic may constitute a force majeure of event:

“Force majeure. This term is used with reference to all circumstances independent of the will of man, and which it is not in his power to control…  this, war, inundation is and epidemics are cases of force majeure or; it has even been decided that a strike of workmen constitutes a case of force majeure”

The above has not been tested in court relative to these current circumstances. The contract will play a big part in the interpretation of the various clauses.

What do I do now?

  1. Review each contract and check in the aforementioned clauses: definitions, force majeure, exclusions and termination alongside any further time bars and performance criteria
  2. Assess based upon the wording and any information that is available as to when the contract was drafted, whether the force majeure or clause is likely to cover COVID-19 or not
  3. Take steps to mitigate any non-performance – what measures are you putting in place and what actions form part of your business continuity policy?
  4. Have conversations with the relevant parties in an attempt to work together to find solutions.
  5. Consider the impact of the terminating the contract and any losses that may be it arising as a result. This could be an expensive option for you so not one to be taken lightly and without a full review;
  6. Consider your legal position and gain advice.
  7. Consider any reputational risks.
  8. Consider whether declaring a force majeure or receiving a force majeure claim impacts upon any insurance arrangements that you have in place. You should be checking your insurance in any event.
  9. Any new contract should make provision for COVID-19 (with a wide definition if possible)
  10. At a time when we are bombarded with negative news and challenges, review how you can improve your working relationships with your customers and supply chain to show that you are proactive, collaborative and responsible. There is always an opportunity for good to come from a difficult situation. Morrisons declared that they would pay all small businesses supplying their stores much sooner. They are in a position to be able to do this and many can’t. What can you do that shows how you respond positively in these times?

For more information on Contract Law negotiations or drafting, contact our Business Services team or, for information on how to handle a contract dispute due to the current pandemic situation, please contact our Dispute Resolution team who would be happy to help. Call 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk.