1. Employment

The Myth

“If I hire agency workers, I don’t have to comply with employment legislation”

The Reality

Although recent case law suggests that the court is likely to decide that an agency worker is not an employee of an end user, much depends on the facts and circumstances of each case and it would be unwise to rely upon this assumption.

An agency worker may not be classed as an employee, he or she may be classed as a “worker” which affords them certain rights of protection.  Under the Employment Rights Act 1996 an agency worker could be a “worker” or, indeed, an “employee”.  An agency worker could also be “in employment” for the purposes of the Equality Act 2010 which means that it would be unlawful for someone within the business to discriminate against, intimidate or harass such a worker.

In addition, employers should be aware of the Agency Workers Regulations 2010, due to come into force on 1 October 2011, which will provide additional protection to agency workers.

  1. Data Protection

The Myth

“The Data Protection Act prevents me from adding event delegates to my database without their consent”

The Reality

Consent is only one of six possible justifications for data processing.  The others include:-

  • processing which is necessary in relation to a contract with the individual; and
  • a “legitimate interests” condition which permits you to process personal data where it is necessary for your legitimate interest, unless the processing is unwarranted because of its prejudicial effect on the individual.

ICO, the Data Protection watchdog, advises that “It is better to concentrate on making sure that you treat individuals fairly rather than on obtaining consent in isolation.

A key aspect of fairness is telling people how you will use their data at the time you collect it.  This can be done by providing a privacy notice on your website or signup forms.  Consent will however usually be required for e-mail marketing to individuals (this requirement stems from the Privacy and Electronic Communications Regulations and not the Data Protection Act).

  1. Health & Safety

The Myth

“If a contractor is injured whilst providing services at my event, I am not liable as they are not my employee

The Reality

An organizer of an event could be liable if they fail to meet an obligation which has been imposed upon them by current health and safety regulations.

For example, under Regulation 5(1) of the Workplace (Health, Safety & Welfare) Regulations 1992, a workplace must be maintained in an efficient state, in efficient working order and in good repair.  It is important to note that this obligation is imposed upon any employer who has, to any extent, control of a workplace and not simply the direct employer of a contractor.

Based on the scenario above, an injured party is likely to be successful in a claim for damages against the organiser of an event if they can prove that (i) the organiser is an employer who had controlled the workplace; (ii) the organiser failed in their obligation to keep the workplace in good repair; and (iii) that failure resulted in the contractor’s accident.

  1. Licensing

The Myth

“If I am running an event in the grounds of licensed premises, I do not need to obtain any other approvals or licences”

The Reality

The starting point will be to consider the premise’s licence and associated operating plant.  In some cases external areas may be designated as part of the licence premises.  If they are any event must be congruent with the activities and timings specified in the operating plan.

If the external area is not designated as part of the licence premises, alcohol may not be served there although it may be brought out from the premises if there is offsale permission subject to any local bylaw preventing outside drinking.  An organiser of an event should consider whether or not an occasional licence might be required to allow alcohol to be provided externally.

Consideration will also need to be given as to whether or not other licences such as a public entertainment licence will be required.  In the case of wedding ceremonies, it is essentially that there is an appropriate approval in place in terms of the Marriage (Approval of Places) (Scotland) Regulations 2002.

  1. Intellectual Property

The Myth

“I am not breaking any law by copying a photograph from the internet and using it in the marketing of my event”

The Reality

The photographer is the owner of the copyright in their work and it allows them to control how their photographs are copied, displayed or reproduced. Where the photographs are taken on commission then, in certain circumstances, the commissioner can control how the photographs are used or exploited.

If anyone else displays or reproduces the photographs then they will need the copyright holder’s permission to do so. If they reproduced the work without permission they do so in violation of the holder’s copyright. The copyright holder would be entitled to demand that they bring the violation to an end by way of a cease and desist letter.

Modern technology means that photographs can often be reproduced and accessed free of charge, particularly on the internet. However, the fact that they are free doesn’t mean that there is no violation taking place. Charging for someone else’s copyrighted work would simply mean that damages would be available in court in addition to the remedies already available to the holder.