- At Kemp Little, we are known for our ability to serve the very particular needs of a large but diverse technology client base. Our hands-on industry know-how makes us a good fit with many of the world's biggest technology and digital media businesses, yet means we are equally relevant to companies with a technology bias, in sectors such as professional services, financial services, retail, travel and healthcare.
- Kemp Little specialises in the technology and digital media sectors and provides a range of legal services that are crucial to fast-moving, innovative businesses.Our blend of sector awareness, technical excellence and responsiveness, means we are regularly ranked as a leading firm by directories such as Legal 500, Chambers and PLC Which Lawyer. Our practice areas cover a wide range of legal issues and advice.
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- Our team provides practical and commercial advice founded on years of experience and technical know-how to technology and digital media companies that need to be alert to the rules and regulations of competition law.
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- Our litigation practice advises on all aspects of dispute resolution, with a particular focus on ownership, exploitation and infringement of intellectual property rights and commercial disputes in the technology sector.
- We have an industry-leading reputation for our outsourcing expertise. Our professionals deliver credible legal advice to providers and acquirers of IT and business process outsourcing (BPO) services.
- We work alongside companies, many with disruptive technologies, that seek funding, as well as with the venture capital firms, institutional investors and corporate ventures that want to invest in exciting business opportunities.
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- At Kemp Little, we advise clients in diverse sectors where technology is fundamental to the ongoing success of their businesses.They include companies that provide technology as a service and businesses where the use of technology is key to their business model, enabling them to bring their product or service to market.
- We bring our commercial understanding of digital business models, our legal expertise and our reputation for delivering high quality, cost-effective services to this dynamic sector.
- Acting for market leaders and market changers within the media industry, we combine in-depth knowledge of the structural technology that underpins content delivery and the impact of digitisation on the rights of producers and consumers.
- We understand the risks facing this sector and work with our clients to conquer those challenges. Testimony to our success is the continued growth in our team of professionals and the clients we serve.
- We advise at the forefront of the technological intersection between life sciences and healthcare. We advise leading technology and data analytics providers, healthcare institutions as well as manufacturers of medical devices, pharmaceuticals and biotechnological products.
- For clients operating in the online sector, our teams are structured to meet their commercial, financing, M&A, competition and regulatory, employment and intellectual property legal needs.
- Our focus on technology makes us especially well positioned to give advice on the legal aspects of digital marketing. We advise on high-profile, multi-channel, cross-border cases and on highly complex campaigns.
- The mobile and telecoms sector is fast changing and hugely dependent on technology advances. We help mobile and wireless and fixed telecoms clients to tackle the legal challenges that this evolving sector presents.
- Whether ERP, Linux or Windows; software or infrastructure as a service in the cloud, in a virtualised environment, or as a mobile or service-oriented architecture, we have the experience to resolve legal issues across the spectrum of commercial computer platforms.
- Our clients trust us to apply our solutions and know-how to help them make the best use of technology in structuring deals, mitigating key risks to their businesses and in achieving their commercial objectives.
- We have extensive experience of advising customers and suppliers in the retail sector on technology development, licensing and supply projects, and in advising on all aspects of procurement and online operations.
- Our years of working alongside diverse software clients have given us an in-depth understanding of the dynamics of the software marketplace, market practice and alternative negotiating strategies.
- Working with direct providers of travel services, including aggregators, facilitators and suppliers of transport and technology, our team has developed a unique specialist knowledge of the sector
- Your life as an entrepreneur is full of daily challenges as you seek to grow your business. One of the key strengths of our firm is that we understand these challenges.
- Kemp Little is trusted by some of the worlds leading luxury brands and some of the most innovative e-commerce retailers changing the face of the industry.
- HR Bytes is an exclusive, comprehensive, online service that will provide you with a wide range of practical, insightful and current employment law information. HR Bytes members get priority booking for events, key insight and a range of employment materials for free.
- FlightDeck is our portal designed especially with start-up and emerging technology businesses in mind to help you get your business up and running in the right way. We provide a free pack of all the things no-one tells you and things they dont give away to get you started.
Social media in the workplace
On 30 April 2013, Kemp Little held a seminar on social media in the workplace, in conjunction with Portolano Cavallo Italy, SKW of Germany and Bersay of France, providing practical hints and tips for dealing with social media in an employment context. Below is a summary of the section of the seminar that dealt with taking action against employees for misuse of social media.
Most, if not all, businesses now use some form of digital media to provide flexibility in the way that they work, or to boost their public image. However, despite all the advantages it offers, the ever growing wave of employees “tweeting”, “trolling”, “blogging”, “linking-in” and “poking” during working hours is creating some interesting challenges for employers.
We have seen some clear patterns emerge in the way that existing employment law principles are being applied to these new scenarios. In this article, we outline three of these areas in more detail.
1. The need for a clearly drafted social media policy
With most employers now using at least two different types of social media to promote their services, the use of written policies regulating this technology has skyrocketed over the past decade. However, recent case law has shown that it’s no longer enough for an employer to simply have a policy in place - in order to successfully rely on a breach of the policy to discipline or dismiss an employee, the document needs to very clearly drafted.
In the case of Grant and Ross v Mitie Property Services UK Limited, two sisters were dismissed for their excessive use of social media sites, including Facebook. The employer’s IT policy permitted employees to access the internet “outside of core working hours”, but the court said that the dismissals were unfair because the policy was unclear about what “core working hours” actually meant.
2. Balance the sanction applied against the harm caused
For most businesses, protecting their public image is a key concern and the increased use of social media is making this more difficult. Having said that, reputational damage caused through the misuse of social media is often speculative and tricky to substantiate.
What the tribunals have made clear in recent case law is that where an employer is relying on damage to reputation as the reason for taking disciplinary action against an employee, or dismissing them, the action taken needs to be proportionate to the harm actually caused.
In Taylor v Somerfield Supermarkets, a manager posted a video on YouTube of two colleagues hitting each other with plastic bags in the storeroom. The video was taken down by the manager after 3 days but the employer found that the video brought Somerfield into disrepute and the employees were dismissed. However, the Tribunal held that the dismissal was unfair - the video had only had 8 ‘hits’ on YouTube, most of which resulted from the disciplinary investigation panel viewing the video. Somerfield was not able to reasonably say that it had been brought into disrepute by the video and so the dismissal was not within the band of reasonable responses.
3. Human Rights – the freedom to tweet?
Increasingly, employees are relying on arguments of a breach of the Human Rights Act - or even the European Convention on Human Rights (“ECHR”) - in addition to claiming unfair dismissal, especially if they have been dismissed for using social media sites outside of their working hours.
In particular, claimants have tried to demonstrate either that their employer’s reliance on their social media activities is a breach of their right to privacy, or a breach of their right to freedom of expression. Whilst, generally speaking, these cases will only be of direct relevance to public sector employers (as employees can only bring a claim for a breach of the ECHR directly against a public sector employer), private sector employers should still have regard to their principals, as the courts (so far as possible) will interpret all legislation in a way that is compatible with the ECHR.
Right to privacy
Employees will struggle to establish that they have a reasonable expectation of privacy in relation to comments made on social media sites such as Facebook. Although an employee’s Facebook page may only be open their "friends", it is not private as comments can easily be copied and passed on to others.
In Teggart v TeleTech UK Limited Mr Teggart was dismissed for harassment after he posted an obscene comment about the promiscuity of a female colleague on his Facebook page while at home. The comment mentioned his employer and was read by his Facebook friends, which included some work colleagues. Mr Teggart claimed unfair dismissal and breaches of his rights to privacy, freedom of belief and freedom of expression under the ECHR. The Northern Ireland Tribunal found that when Mr Teggart put his comments on his Facebook page, he had waived any right to consider his comments as being "private".
Freedom of expression
As for employees’ freedom of expression, in Crisp v Apple Retail UK Limited, Mr Crisp was dismissed for damaging Apple’s reputation by posting derogatory comments on Facebook about his employer, Apple Inc. Mr Crisp argued that these posts were private, as they could only be viewed by his friends, and he had a right to freedom of expression so his dismissal was unfair. However, the Tribunal found that the dismissal was fair.
It was critical that Apple had made clear in its policies that protecting its image was a "core value" and had specified that making derogatory comments on social media was likely to constitute gross misconduct. In this case, the Tribunal found that the employer’s action in dismissing Mr Crisp was proportionate to the harm caused by the posts.
In contrast, in the case of Smith v Trafford Housing Trust, Mr Smith, who was a Christian, posted a link on his Facebook wall to a news article titled "Gay church 'marriages' set to get the go-ahead", and added his own comments implying that he didn’t approve. The employer’s Equality Opportunities Policy expressly prohibited employees from promoting their religious and political views at work and, as a result, Mr Smith was found guilty of gross misconduct and demoted.
The court found that the employer had no right to demote him, as the postings were not capable of bringing the Trust into disrepute. Mr Smith's views were expressed moderately, on his personal Facebook page and out of working hours, and could not lead a reasonable reader to think the worst of the Trust for having employed Mr Smith. The employer’s policy which prevented the promotion of religious views could not extend to Mr Smith’s Facebook wall in such circumstances, as this was an unnecessary fetter on the right to freedom of expression. This decision supports employees’ rights to privacy and views Facebook essentially as a social and personal medium - it suggests that, unless the context implies otherwise, a work-related context will no longer be easily presumed.