Employment Law

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The Public Interest Disclosure Act.

The Health & Safety at Work Act.

Data Protection Act 1998.

Computer Misuse Act 1990.

Freedom of Information Act 2000.

The Fraud Act 2006.

Regulation of Investigatory Powers Act.

Information Commissioner’s Office.

More Information

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We offer a fast and efficient service and are committed to a high level of client satisfaction.

We offer an ‘Unbundling’ service, where we provide separate items of legal assistance where required, leaving you the client to handle the more routine matters and keep costs well under control. We can offer highly competitive fixed prices for each stage of the case.

The case remains client- led and elements can include advice on law and procedure, drafting documents, consent orders and arranging advocacy with barristers via direct access. You handle the routine correspondence. This is extremely cost-effective.

What is gross misconduct?

Gross misconduct constitutes one or more of the following things:

1) Theft of office property or from other members of staff

2) Being drunk at work

3) Being under the influence of drugs at work

4) Verbal or physical violence against another member of staff

5) Insubordination (e.g. selling the company’s secrets to a competitor)

6) Racial, religious or sexual harassment

Help with NHS and other Employer Disciplinary Procedures

A Court of Appeal ruling against an NHS trust illustrates the complexity and legal implications, of public sector disciplinary procedures, and should act as a warning to employers to tread carefully.

It was the second time that the claimant in Mezey v South West London Mental Health NHS Trust went to the Court of Appeal to challenge the way in which her employer was conducting disciplinary proceedings against her. And for the second time she was successful in obtaining an injunction

Dr Mezey was employed by the trust as a consultant forensic psychiatrist and also undertook academic duties at its medical school. In September 2004, one of her patients absconded from a medium-secure mental health unit, having been granted unescorted leave to a hospital garden area. The following day he attacked and killed a stranger in Richmond Park.

Following two internal inquiries conducted by the trust into Dr Mezey’s role in this matter, the trust decided to proceed to a formal disciplinary hearing.

The patient was convicted of manslaughter, following which a further inquiry was commissioned in accordance with Department of Health guidelines. This third report was delivered in October 2006. The trust then suspended Dr Mezey from all her duties, including her academic duties. Dr Mezey obtained an injunction restraining the trust from suspending her, having given a voluntary undertaking not to carry out clinical duties pending a further investigation that was due to be carried out by a panel.

No serious fault

The report was supportive of many aspects of Dr Mezey’s treatment of her patient. It found her to be a highly experienced, conscientious and distinguished clinician and academic who was widely regarded as an asset to her profession. However, it also found that the decision to allow the patient unescorted leave was inappropriate, even though it was satisfied that other competent consultants at the time might have made the same decision. It was clear that this did not amount to serious professional incompetence. It concluded that no serious fault had been proven.

Despite this, the trust attempted to set up a formal disciplinary hearing to consider whether or not any disciplinary action should be taken against Dr Mezey, up to and including dismissal. This led Dr Mezey to commence further proceedings against the trust to prevent it from holding a disciplinary hearing and from continuing to exclude her from clinical work.

This caused the trust to reconsider its position. It agreed to lift Dr Mezey’s exclusion from clinical work. Further, it indicated that dismissal would be excluded from the potential outcomes, meaning they would be restricted to various warnings and reprimands. However, its stance remained that it wished to convene a disciplinary hearing to consider the report and the possibility of a warning or reprimand.

The Court of Appeal, found that in the relevant circumstances there was simply no basis for the trust to continue its disciplinary procedure and hold a disciplinary hearing.

Complex procedures

This is a reminder of the complexity of the contractual disciplinary procedures that apply to employment in many parts of the public sector, not only the NHS, and the potential legal consequences if they are not followed properly. In light of failures by the trust to follow the applicable contractual procedures, Dr Mezey was twice successful in obtaining an injunction relief from the Court of Appeal: first in relation to her suspension, and second in relation to the continuation of internal disciplinary proceedings.

This case, like recent cases examining if and when employees are entitled to legal representation in disciplinary proceedings, illustrates how careful public sector employers need to be in disciplinary cases.
We can turn this to your advantage. You not alone.

We can help – Consult the experts – Call us on 020 7381 8111  or email law@hylton-potts.com and see how we can help you defend your case concerning the General Medical Council laws.

How to discipline a ‘sick’ employee?

An employee is under a disciplinary sanction but has since been signed off sick. You suspect he is ‘swinging the led’, or having a ‘helpful’ doctor.

Generally, when disciplining a sick employee, you should be prepared to postpone any meeting for a reasonable period. If the employee remains absent, you should try to obtain medical advice about whether the employee is well enough to attend a meeting and, if not, when they are likely to be. You can then decide whether the matter can wait.

But you should ensure that the matter is not allowed to drag on if the return date is constantly being extended. You should consider conducting the disciplinary hearing in another way, such as by telephone, at the employee’s home or closer to it, or by written submissions.

In the end, you might need to hold the disciplinary hearing in the employee’s absence and make a decision on the basis of all the evidence available.

Consult the employment experts – Call us on 020 7381 8111  or email law@hylton-potts.com

Equality Act helps Employees and widens scope of discrimination law

Equality Act 2010

Brings in new rights for employees, namely disability discrimination rights, and rights for people who are discriminated against indirectly, such as carers who look after elderly parents or who are affected by bullying at work.

Allowing offensive jokes about disability, sex and gender reassignment at work or criticising dyslexics will leave employers facing substantial claims.

The old discrimination legislation protected employees who are discriminated against on the ground of a protected characteristic, including sex, disability, race, religion or belief, sexual orientation and age, the level of protection available varied.

The new law introduces much wider protection for many employees, and enables employees to bring discrimination and harassment claims based on a third party’s protected characteristic.

If a colleague tells a joke at work about disability, which an employee finds offensive, regardless of whether he or she is disabled, an employee can under the Equality Act bring a harassment claim against the employer.

If a person has caring responsibilities outside work for a disabled or elderly relative and is overlooked for promotion on an assumption that he or she will not be as focused on the role, the employee can now bring a disability or age-discrimination claim based on the association with that individual, even though not disabled or elderly himself.

The new law also makes it harder to dismiss people suffering from depression of sufficient severity to qualify as a disability. Also it is unlawful (except in certain prescribed circumstances) for employers to ask about a candidate’s health before offering him or her work;

Secrecy clauses in contracts are unenforceable where they relate to an employee sharing information about pay.

The new law introduces direct disability discrimination, so that employers must objectively justify rules or requirements that disadvantage disabled people.

The new law makes employers liable for persistent harassment of employees by third parties.

If you have been discriminated against in the workplace on grounds of gender, race, disability and sexual orientation, consult the employment experts – Call us on 020 7381 8111  or email law@hylton-potts.com

Get rid of older employees

The default retirement age (DRA) was be consigned to history in October 2011.

Employers are no longer be able to require people to stop working at 65, purely because of their age.

Employers should think of having a much older retirement age – 70 or 75.

Employers would no longer be able to issue compulsory retirement notifications under the DRA procedure from 6 April 2011.

Employers are only be able to operate a compulsory retirement age where they can objectively justify it as a ‘proportionate means of achieving a legitimate aim’.

Consult the employment experts – Call us on 020 7381 8111  or email law@hylton-potts.com

A Legal Guide to leaving your job

Try to avoid an exit pursued by lawyers

It pays to keep on the right side of a former employer, even when it seems they are out to make your new life difficult

When you start a business, it makes sense to do something you know and understand. For many people, the inspiration comes while working for someone else and deciding you want to branch out on your own. But you need to beware of breaching any contractual curbs placed on you by your employer when you leave.

The first thing to do is see if your employment contract contains a restrictive covenant agreement, or post-termination restriction,.

Most employees have restrictions in their contracts. Employers are often but HyltonPotts ready to enforce these restrictive covenants because of the drop in retail spending and the difficult economic climate. Whe last thing they want in a competitive market is for an employee they have trained and invested in to start stealing their clients.

There are three main kinds of restrictive covenant:

Those that prevent you from approaching clients of your former employer;

Those that prevent you from poaching employees;

Those that prevent you from competing against your former employer generally.

The last is most difficult to enforce and will only be upheld by the courts, if it is deemed to be reasonable.

Restrictive covenants vary in length from six months to a year, and if you decide to ignore one, your former employer could not only get an injunction to close your business but could claim damages for loss of income.

If the restrictive covenant is not in your contract of employment, it may be in the employee handbook or even in a separate agreement, so you need to check all documents.

While a restrictive covenant sounds onerous, you are allowed to start researching and preparing for your business. You should try to part on good terms with your employers. If you leave acrimoniously it can seriously affect their attitude towards what you are doing, and the extent to which they are likely to pursue you through the courts. Also things and work out and you have to go back into employment you might need a reference.

No matter how tempting it may be, you should never depart with confidential information, such as client lists or business plans.

While it is fine to use the skills and knowledge you have developed as part of your job, walking away with anything more could land you in hot water.

Where employees often go wrong is the belief that what they have created during the course of their employment belongs to them rather than the employer, but that is not the case. Sverything that you create in the course of your employment belongs to your employer.”

Leave gracefully

– Check your employment contract and related documents to see if they contain any restrictive covenants.

– Try to leave on good terms. If your new business doesn’t work out, you may need to go back. If it works brilliantly, you may one day want your former employer to buy it.

– Do not leave with client lists or confidential information.

– Negotiation can work — and your former employer may agree to you taking some clients with you.

Whether you are an employer or employee, we can help with this minefield.

Consult the employment experts – Call us on 020 7381 8111  or email law@hylton-potts.com

Whistleblowing law / summary

Whistleblowing occurs when an employee or worker provides certain types of information, usually to the employer or a regulator, which has come to their attention through work. Whistleblowing is therefore ‘making a disclosure in the public interest’ and occurs when a worker raises a concern about danger or illegality that affects others, for example members of the public.

The Public Interest Disclosure Act 1998, which came into force on 2 July 1999, governs whistleblowing. This Act was incorporated into the Employment Rights Act 1996, and introduced sections 43A to 43L and section 103A into the 1996 Act.

The legal position

Employees and workers who make a ‘protected disclosure’ are protected from being treated badly or being dismissed. The situations covered include criminal offences, risks to health and safety, failure to comply with a legal obligation, a miscarriage of justice and environmental damage.

For a disclosure to be protected it must be made to an appropriate body. For example, disclosing a health and safety issue to the Health and Safety Executive is likely to be protected, but not if the concern was disclosed to the media.

If you have a whistleblowing issue, as employer or employee we can help

Consult the employment experts – Call us on 020 7381 8111  or email law@hylton-potts.com

Whistleblowing, as public interest (or protected) disclosures are more commonly known can take three forms. A protected disclosure can be made in relation to five issues; health and safety, criminal acts, failure to comply with a legal obligation, miscarriages of justice and damage to the environment. There is also a prescribed format for a disclosure to be a qualifying disclosure, you can’t just tell your friend and claim to have made a protected disclosure. A protected disclosure can be made by anyone who is a worker or an employee.

A qualifying disclosure

The first requirement is, naturally enough, that you believe the information you are disclosing is true. You can’t just accuse your employer of a fictitious criminal offence and then rely on this as a protected disclosure.

The second is that the act which is being disclosed must have happened, be ongoing or be likely to occur. So for instance, if your employer requires a licence to carry out their operations and this licence is due to expire and they have not applied to renew the licence then it could (potentially) be said that they are likely to fail to comply with a legal obligation.

It is also necessary to make the disclosure to the correct person. As a rule any disclosure should be made to the employer, although where someone other than the employer is responsible for the act being disclosed then the disclosure should be made to them. It is also possible to make a protected disclosure to the following:

A legal advisor in the course of obtaining advice;
A minister of the crown (although only in specific circumstances)
A prescribed person (such as the Health and Safety Executive or an Ombudsman)
You must also ensure that whilst making a disclosure, you do not break the law as this will prevent it from being a qualifying disclosure. If you make money from making a disclosure, this can also prevent it from qualifying.

Detriments/dismissal

The law gives a considerable level of protection to workers who make protected disclosures. The principle being that the areas which attract protection are sufficiently important that a worker should be able to disclose them without fear of retaliation from their boss. It is against employment law for an employer to subject a worker to any detriment because they have made a protected disclosure. Detriment is broadly defined and can include an act or a deliberate failure to act by the employer. Typical detriments will be disciplinary proceedings, demotion (or being overlooked for promotion) or reassignment to menial duties, but many more acts or omissions can amount to a detriment.

The obvious detriment not mentioned above is dismissal. This is also prohibited and dismissal on the grounds of making a protected disclosure makes the dismissal automatically unfair. Further, and possibly more importantly, you do not need one year’s service if you are dismissed for this reason. Whether you are subjected to a detriment or dismissed, you can bring a claim to a tribunal and be awarded compensation, provided you are able to establish that you made a qualifying disclosure and that this was the reason for the treatment you have suffered.

Remedies

The remedies available for being subjected to a detriment include a declaration to that effect and possibly compensation (although this is not guaranteed). Compensation is assessed in terms of any loss actually suffered (for instance from being overlooked for a promotion) and what the tribunal considers to be a fair result in the circumstances.

If the detriment is dismissal then the compensation is the same as is typically awarded for any other unfair dismissal. In addition, it may be possible to obtain interim relief where the reason for dismissal is the making of a protected disclosure. An order for interim relief is an extreme sanction and is awarded only rarely. When ordering interim relief the Tribunal orders that the contract be continued, that is that the worker continues to be paid for the period that the tribunal proceedings are ongoing. The tribunal can order that the worker continues to work for their employer whilst this happens. To obtain interim relief it is necessary to act very quickly (within seven days).

If you have a whistle-blowing issue, as employer or employee we can help

Consult the employment experts – Call us on 020 7381 8111  or email law@hylton-potts.com

Can I make an absent employee redundant?

You want would like to put employee through the consultation phase, but one is off at the moment with long-term sickness. Can I put this person through the phase even though they are not at work and, if so, are there special requirements that I have to fulfil before notifying them?

As far as possible you need to treat any employee on long-term sick leave or maternity leave, in the same way as any other employee who is attending for work and going through the redundancy process. It is often tempting to deal with absent employees differently to those who are physically at work, but this is a mistake. They need to be treated in the same way as everyone else, despite the fact that communicating with them may be a bit trickier.

There are no special requirements, the answer is no. The absent employee should receive the same notifications of the process as employees who are physically present. This may mean that stipulated times for responses should be slightly longer and accommodation will need to be made to avoid any disadvantages being caused if the employee suffers from any disability.

The selection for redundancy should be as objective as possible, but should be weighted to reduce the impact of the long-term absence as far as possible. Failure to do so may result in a dismissal being seen to be unfair and may also raise the risk of claims on grounds of disability discrimination if qualifying conditions are met by the employee.

If you are an employer or an employee, with redundancy situation consult the experts – Call us on 020 7381 8111  or email law@hylton-potts.com

Interviewee has right to see notes

A candidate who didn’t get a job has asked to see the notes made at her interview. Is he entitled to see them?

Yes. Under the Data Protection Act 1998, everyone has a right to request a copy of personal information held about them by an employer. This includes notes made about job applicants during interview – regardless of whether a job offer was made. In fact, you are obligated to advise applicants how the information you ask them to provide in the recruitment process, will be used at the outset.

This right isn’t just limited to obtaining copies of interview notes. It also applies to sickness records, grievance or disciplinary notes, training records, appraisal or performance review notes, Word documents and e-mails, audit trails or just general information held in personnel files.

It is up to you whether this information is stored in a computer file or a paper record. However, it would be wise to have a system that allows you to retrieve it should you receive a request. By law you have 40 days from when the request has been received to supply the information.

You may, however, charge an administration fee of up to £10 for copying the information or arranging access to it.

So be careful what you storing your computer or put on paper.

If you have an employment problem consult the experts – Call us on 020 7381 8111  or email law@hylton-potts.com

Harassment at work

The legal framework protecting employees from acts of harassment by third parties originates from case law, including the infamous decision in ‘Bernard Manning’ case. De Vere Hotels was found liable for the harassment of two of its staff, who became the subject of the comedian’s racist and sexist jokes during his performance, despite the fact that he was not an employee of the hotel group. Essentially, De Vere Hotels was held liable for failing to take steps to prevent the discrimination complained of from taking place.

Wide-ranging provisions providing protection to employees from third-party harassment being introduced via the Equality Act 2010

This introduced a definition of harassment that applies across all relevant strands of discrimination. It also introduced significantly broadened provisions dealing with third-party harassment.

Employers will be liable for harassment where:

a third party harasses an employee in the course of the employee’s employment;

the employer failed to take such steps as would have been reasonably practicable to prevent the third party from doing so; and

the employer knew that the employee had been harassed in the course of employment on at least two other occasions by a third party.

It is not essential for the alleged harassment to be carried out by the same person. What is important, however, is that the complainant has suffered harassment at the hands of a third party on at least three separate occasions.

What is harassment?

Harassment is broad and covers various forms of behaviour, ranging from the extreme, such as inappropriate touching and sexual assault, to less obvious acts such as engaging in jokes, flirting or banter which the perpetrator believes to be just innocent fun.

It is the effect on the victim that is important – not whether the alleged harasser intended to cause any harm. It is also not necessary for the behaviour in question to be directed at the complainant. A person can suffer harassment from simply overhearing a conversation between others that he or she should not be party to.

To fall within the statutory definition, the act complained of needs to be related to a relevant ‘protected characteristic’, namely: age; disability; gender reassignment; race; religion or belief; sex; and sexual orientation.
There is no limit as to who may constitute a third party for the purposes of the law, and employers should remember that they could be held liable for the actions of virtually anyone who is not part of their organisation. This includes customers, suppliers, contractors and even members of the general public.

Employers should therefore pay ­particular attention to employees who have external-facing roles.

Three strikes and you are out

The test requires employers to ‘know’ that an employee has been harassed on at least two separate occasions before they are at risk of being liable.

This could, in the right circumstances, provide employers with a potential loophole to escape liability. For example, it could be argued that an employer did not know about the acts of harassment complained of until it carried out an investigation into the matter, and established that harassment had in fact occurred. Attempting to verify an employee’s complaint could be difficult in a number of scenarios, such as where the employee in question routinely travels alone, has a busy, customer-facing role or routinely deals with members of the public.

There may be no internal witnesses or any objective evidence to corroborate the complainant’s story.

Reasonable steps

An employer can escape liability for third-party harassment where it has taken ‘reasonable steps’ to prevent it.

Here are some general examples to help you.

Have a clear policy on harassment, with a specific section dealing with harassment of staff by third parties, and make sure that everyone is aware of it.

Bring your anti-harassment policy to the attention of those that you do business with and display a public notice to remind others how staff should be treated. Quite often, perpetrators may not be aware that their behaviour is causing a problem or are otherwise not mindful of its consequences. Letting them know what is and is not acceptable behaviour could prevent harassment.

Do not rely on the victim to ‘push’ for action to be taken. Once the employer is on notice that acts of harassment have taken place, there may come a point where the employer is expected to take action to deal with the situation, even where the complainant is not asking for this to be done. Simply ignoring the problem will leave the employer exposed to risk.

Investigate the issues and take steps to deal with the problem.

What is an employer required to do?

Speaking to the perpetrators to ask them to stop the behaviour in question. Another option available to the business could be to consider asking the employee, if he or she would like to change roles within the organisation.

Keep up to date with the law. There are some very real uncertainties as to how the ‘three strikes’ test will operate in practice, and the area is ripe for litigation. Keeping on top of developments in this area will allow employers to understand what is expected of them and to take preventative action to protect themselves from claims before they manifest themselves.

Work-related events

Employers should also be wary of the potential for harassment by third parties at events connected to work. One recent example involved a female employee attending a client’s cricket event where she was subjected to sexual harassment by another guest. As her employer could be liable if this is repeated again, it was important that the employer could show it took action.

If you are involved with harassment in the workplace, whether as an employer or employee consult the experts – Call us on 020 7381 8111  or email law@hylton-potts.com

Reputation protection

If you feel that your reputation has been attacked, and you need advice on reputation protection, Consult the employment experts – Call us on 020 7381 8111 or email law@hylton-potts.com

Can a former employee poach my customers?

A senior member of staff has recently left our business and a “non-compete” clause in her contract forbids her to work for our clients for six months. But I have just discovered that her new employer has begun advising one of our clients. She claims that she isn’t involved with that account. Is there anything we can do?

If you can prove that the restriction has been put in place to protect a legitimate business interest, and that the clause goes no further than is reasonably necessary to protect that interest, then a court is likely to enforce it.

Your “non-compete” clause sounds like a “non-dealing” covenant that prevents a former employee dealing with former clients, rather than a “non-solicitation” clause that prevents the poaching of clients.

These non-dealing covenants have to be carefully worded and stipulate that the restriction bites regardless of which party approached the other. If yours does not do that, then your former employee can successfully claim that she did not approach the client, and the client approached her business independently.

But if you are confident and can prove that the relevant clause has been breached and that your business has suffered a financial loss as a result, you can consider seeking an injunction.

Before embarking on a legal process – Consult the experts – better than solicitors – For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Pillow talk

One of my employees recently got married and her new husband works for our closest competitor. I am extremely concerned that she may disclose confidential information to him. Have we got any legal right to dismiss her or, at least, move her into a new role that doesn’t compromise our most valuable intelligence?

Dismissing an employee simply because her husband works for a competitor will almost certainly land you with a claim for unfair dismissal and unlawful direct discrimination.

Dismissing employees in anticipation that they may breach their duty of confidentiality might be considered fair under the Employment Rights Act 1996. The Act provides some leeway if the action is taken for “some other substantial reason”.

An employment tribunal appeal in a similar case, ruled that it was unlawful for employers to discriminate against someone not just because they were married, but because they were married to a particular person.

Treating someone less favourably than another because of what the Equality Act 2010 deems to be a “protected characteristic” amounts to discrimination: marriage is one of those characteristics and dismissing a person for that reason would certainly be considered to be less favourable treatment.

Likewise, moving your employee into a new role would leave you open to a claim for constructive dismissal as well as discrimination.

If faced with an employment problem consult the expertsConsult the experts – better than solicitors – For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

Pay battles of the sexes

I am concerned about some serious pay gaps between my male and female staff. However, my business is under serious financial pressure. Can I undertake a review of equality in pay with a view to downgrading – rather than increasing – salaries to ensure that they match up?

Female employees who are paid less than male employees for the same work can bring equal pay claims at an employment tribunal, so you are right to be concerned.

However, closing the pay gap by unilaterally reducing pay for male staff won’t resolve the problem. In fact, it could even make things worse – by further exposing your business to potential claims of discrimination, breach of contract and even constructive dismissal.

A better solution would be to perform a complete review of all staff salaries to understand what pay differences there are, and why this is the case.

Perform a financial review as well as an equal pay audit, to understand the impact of any differences in salary and any potential changes.

If, after the review, you decide to make changes, ensure any new structure is transparent and based on unbiased reasoning which does not unfairly affect people of the same gender, race, religion or belief, sexual orientation, disability or age, compared with others.

Keep staff fully informed and expressly agree new written terms with them where possible.

If faced with an employment problem consult the experts – Consult the experts – better than solicitors – For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.

‘Cyberholes’ and employment contracts

I am concerned about the increasing challenges of managing social media risks and fear that our standard employment contracts are littered with “cyber holes” – especially when it comes to restrictive covenants, such as preventing staff from copying valuable contacts from our Twitter and LinkedIn accounts. Can we carry out a review of our existing contracts and insert social media clauses? And, if so, what would they look like?

This problem isn’t limited to social media. It’s easy for a member of staff to just download client lists on to a USB stick, or send them to a web-based email account.

You should make sure that your contracts of employment forbid removal of company data without the express written consent of a director.

Ideally, you should also include clear restrictive covenants preventing (ex-) employees from soliciting your existing customers with whom they’ve had contact for, say, six months after departure.

You already have some legal protection if an employee deliberately downloads, photocopies or memorises a list of your clients for the purpose of competing. A court will often grant you an injunction (and damages) even without a restrictive covenant, unless the information is already in the public domain.

But it’s very difficult to protect the identity of contacts from Twitter and LinkedIn accounts. By their very nature, they are in the public domain, and anybody (including your competitors) can see them.

One of the downsides of shouting into the “Twittersphere” is that people hear you shout – you cannot keep the information confidential.

If your client list is confidential, there is only one solution: don’t replicate it on Twitter or LinkedIn.

If faced with an employment problem consult the experts – Consult the experts – better than solicitors – For more information or a free legal opinion telephone 020-7381-8111 or email law@hylton-potts.com.