KitKat battle sees legal setback for Nestle

Confectionery giant Nestle has failed to convince European judges that it has the right to trademark the shape of its four-finger KitKat bar in the UK.

The European Court of Justice said that the company had to demonstrate the public relied on the shape alone to identify the snack. The judges concluded this was difficult to prove if goods also showed a brand name such as KitKat. Rival Cadbury has battled to prevent Nestle obtaining the trademark. Both Nestle and Cadbury said they were “pleased” with the ruling. The case will now return to the UK High Court for a final decision.

Nestle claimed that in the 80 years since the chocolate bar was introduced, the four fingers have become almost completely associated with KitKats. In June, a senior European court lawyer, the advocate-general, disagreed saying such a trademark did not comply with European law. Nestle has not sought to trademark the two-fingered bar.

Sally Britton, intellectual property lawyer at Mishcon de Reya, said that Nestle was likely to continue arguing its case, “even if, as now appears likely, the English court decides that the KitKat shape should not be registered as a trade mark”. She said Nestle had experience of trying to register difficult marks. It took more than 40 years for it to register the slogan “Have a Break” as a trade mark, finally succeeding in 2006, she added. Continue reading “KitKat battle sees legal setback for Nestle”

Overtime should count in holiday pay

Overtime should count in holiday pay

Workers have won a ground-breaking case at the Employment Appeal Tribunal to include overtime in holiday pay.

This means all people working overtime could claim for additional holiday pay. Currently, only basic pay counts when calculating holiday pay.

The tribunal also ruled that workers can make backdated claims, but only for a limited period.

However, the ruling could be referred to the Court of Appeal, meaning a final decision may be years away.

“Up until now some workers who are required to do overtime have been penalised for taking the time off they are entitled to,” said Howard Beckett of the Unite union.

“This ruling not only secures justice for our members who were short changed, but means employers have got to get their house in order.”

‘Matter of urgency’

The tribunal ruled on three cases – road maintenance company Bear Scotland versus Fulton, engineering firm Amec vs Law and industrial services group Hertel vs Wood. The employers won their original claims and the tribunal has now rejected the companies’ appeals.

The ruling has widespread implications for all companies paying overtime to their staff.

The government estimates that one-sixth of the 30.8 million people in work get paid overtime. This means around five million workers could be entitled to more holiday pay.

The coalition and business groups had argued strongly that overtime should not be included in holiday pay calculations.

Employment Appeal Tribunal to include overtime in holiday pay.
Businesses are concerned about the extra money they will have to pay out

After the ruling, Business Secretary Vince Cable said he would be setting up a task force to assess the impact of the ruling.

“Government will review the judgement in detail as a matter of urgency,” he said.”To properly understand the financial exposure employers face, we have set up a task force of representatives from government and business to discuss how we can limit the impact on business.”

Financial implications

Business leaders were more forthright.

“This is a real blow to UK businesses now facing the prospect of punitive costs potentially running into billions of pounds – and not all will survive, which could mean significant job losses,” said CBI director general John Cridland.

“This judgement must be challenged. We need the UK government to step up its defence of the current UK law, and use its powers to limit any retrospective liability that firms may face.”

Case studies:

The employee – Shane Brown, Leicester

“I work 35 hours a week as a cleaner but am only contracted to 28 hours.

“Being on near enough minimum wage is bad enough, but to have to push to get one extra day to make ends meet makes life at work very stressful.

“It also makes me less likely to want to take a holiday because no matter what I say or do, I’ll be losing out. I can’t afford to only be paid for 28 hours for even one week in a month.

“It currently has a massive knock-on effect that means I have to make a choice between eating properly (and by properly, I mean one meal a day as it’s all I can realistically afford) or not eating for a couple of days that week just to be able to have some simple pleasure in life.

“Being paid holiday for overtime worked would be extremely useful. It would take a massive weight off my shoulders so if I was to take a holiday, I wouldn’t be constantly worrying about how I’m going to make ends meet while I’m off work and I would actually be able to relax.”

The employer – Lance Harris, Bristol

“I run a small business employing 27 staff with approximately 18 working regular overtime at one and a half times the normal rate.

“My employees take home far more in wages than if they worked a normal week. This practice has been place more many years, even during the recession.

“If I have to back date a holiday pay supplement, I will curtain overtime working.

“Any such curtailment will hurt everyone but small employers are under great strain from continuous changes to working conditions, contracts, never-ending training, paternity leave, Health & Safety etc.

“Much more of this and I may well bring my retirement plans forward, to the detriment of all staff!”

Given the financial implications for companies, lawyers suggested an appeal was likely.

“The potential financial implications for many employers will be significant,” said Jean Lovett, employment and incentives partner at the law firm Linklaters.

“We envisage that the tribunal’s decision will not be the last word on this issue. As significant sums are involved, we expect the decision to be appealed.”

“Due to the costs involved many employers may now look to reduce the availability of overtime, where feasible.”

The cases centre on the interpretation of the EU-wide Working Time Directive, and in particular the Working Time Regulations implemented in the UK in 1998.

The tribunal ruling suggests that UK companies have been interpreting the EU directive wrongly.

New employment tribunal laws come into force

New rules aimed at reducing the number of employment tribunals have come into force from 6 April 2014.

Staff wanting to bring a case of unfair dismissal or discrimination now have to first notify the conciliation service Acas to see if the dispute can be resolved.

Another change sees employers facing fines if they lose a case at tribunal.

Ministers said the changes would help avoid “stress, time delays and excessive costs”.

Previous government measures include the introduction last year of fees for workers looking to take their employers to tribunal.
Continue reading “New employment tribunal laws come into force”