From 6 April 2013, a new statutory test will replace the existing rules fordetermining if you are UK resident. While the test will provide clarity, it isimportant to understand it now so that you can plan ahead.
Take a look at our detailed flyer, which includes the test to see if it will affect you.
The
Office of the Police and Crime Commissioner for Norfolk is excited to be
partnering with the Suzy Lamplugh Trust to drive
awareness of street harassment and upskill and empower bystanders across
Norfolk to deal with all harassment types.
We are asking local businesses for their support, as
employers in Norfolk to arrange for as many of their staff to attend this free
training as possible. The training is provided by the Suzy Lamplugh Trust and is funded by L’Oréal Paris.
This is a globally approved program by the American
NGO Right To Be and L’Oreal Paris, which aims to create a global community of
bystanders who can safely intervene when they see harassment to support the
victim and deter the harasser. To date this program has rolled out across 40
countries and trained over 3.4M bystanders.
The training of even more of the moment now, as The Worker Protection (Amendment of
Equality Act 2010) Act 2023 mandates that employers take ‘reasonable steps to
prevent sexual harassment.’ It is imperative that employers take action to
fulfil this duty of care and the Anti-harassment/Bystander training complements
any other training and measures that these organisations are implementing in
this regard.
Norfolk’s
Police and Crime Commissioner, Sarah Taylor, said: “L’Oreal Paris have funded this much
needed initiative and we are working with the Suzy Lamplugh Trust to organise
free training for local businesses. It is everyone’s responsibility to
ensure that people are safe, especially women and young girls, when they go for
a night out enjoying the bars and clubs in the nighttime economy. So, I would
urge employers to take advantage of this special opportunity to sign up to the
“Stand Up Against Street Harassment” training programme.
About the free, 30 minute training
Following a growing national conversation around what
the public can do to increase women’s safety, people and organisations want to
take steps to be able to address the prevalence of unwanted and aggressive
behaviors such as harassment that underly the broader cycle of violence against
women and girls.
To accommodate public demand, the Suzy Lamplugh
Trust and L’Oréal Paris formed a partnership to bring the expert approved
international “Stand Up Against Street Harassment” training programme
to UK audiences.
The programme is free of charge as it is sponsored
by L’Oréal Paris, driving awareness of harassment, as well as upskilling
and empowering bystanders across various settings such as public transport,
educational institutions, festivals, public spaces, and workplaces, to help
defuse situations, discourage harassers, and support victims. You can get a glimpse of what this is
all about here.
Exclusive
dates for businesses in Norfolk have been offered by the Suzy Lamplugh Trust.
You can book on to them using the following links:
These
training sessions are open to anyone from Norfolk and are ideal for licensed
venues, taxi companies,
food vendors, bus and rail providers, retailers, large employers,
manufacturing and farming; hospitals and care settings and further education.
If you
cannot make those dates, don’t despair. We will be providing more dates over
the next few months.
If you would
like to arrange a free, one-off and/or face-to-face session for your
organisation/s, please contact [email protected].
Such a session has a minimum sign up of 75 people.
The Court of Appeal has handed down its judgment in the case of NHS Leeds v Larner, dealing with the issue of carrying forward accrued holiday entitlement during sick leave. Professional Support lawyer, Elizabeth Stevens, reports.
In this case, the Employment Appeal Tribunal (EAT) had ruled that an employee who was dismissed after a long period of sickness absence was entitled to be paid in lieu of all her accrued holiday. The EAT was satisfied that she was entitled to be paid in lieu of the full amount, including in respect of the previous holiday year, even though she had not made any request to carry the leave forward (see our previous briefing).
Following this decision, the case of Fraser v Southwest London St George’s Mental Health Trust was heard by a different division of the EAT, which concluded that in order to be entitled to carry the leave forward to a subsequent holiday year, the employee must expressly request to take the leave (see our previous briefing).
As a consequence of these two EAT decisions we had conflicting authorities on the issue. The case of NHS Leeds v Larner was then appealed to the Court of Appeal and was heard on 27 March 2012. The decisions was handed down on 25 July 2012.
The Court of Appeal has upheld the EAT decision, meaning that a worker who has been on long-term sick leave can claim a payment in lieu of his or her accrued holiday entitlement in full, regardless of whether they made any request either to take the leave or to carry the leave forward to the next holiday year.
In handing down its judgment, the Court reviewed the numerous European decisions on the issue of statutory holiday entitlement during sickness absence under the provisions of the Working Time Directive (WTD). The Court was satisfied that Article 7 of the WTD, which provides the right to paid annual leave, does not impose any requirement for the worker to make a prior leave request in order for the holiday entitlement to be carried forward to a subsequent holiday year.
Crucially for private sector employers, the Court also ruled that it was possible for the Working Time Regulations 1998 to be interpreted in light of the European rulings on Article 7 WTD. This means that employees working in the private sector, as well as those in the public sector, can rely on these European decisions to pursue a claim for any unpaid holiday entitlement on termination of their employment.
Comment This decision means that, subject to any further appeal to the Supreme Court, employers will now have very little scope for refusing to pay employees in respect of their accrued holiday, if their employment is terminated following a long period of illness.
The Government is due to be issuing draft amendments to the current Working Time Regulations in order to take account of the European decisions on the issue of annual leave entitlement and sickness absence.
A copy of the Court of Appeal judgment is available here
We’re delighted to announce the launch of the new Britannia Training website which will allow you to search for and book the courses you need online.
Because customer service is important to us, we will be following up each booking in exactly the same way as before – making sure that you have found the perfect course to suit your needs, and ensuring that you know what to expect on the day. We hope you will have a browse of our new website and let us know what you think! We would appreciate your feedback!
Britannia Safety & Training has a Twitter page, you can find us at Britannia_train, just type this is the search engine and tweet us! Keep updated with the latest news, legislation and updates on Health & Safety.
Britannia also has a page on IPatter, you can find us at Britannia Safety & Training, Wymondham.
COMING SOON! WATCH THIS SPACE! Britannia will have a Facebook page “Britannia Bad Boys”, you can read the lastest health & safety information and play videos!
Employment Principal Lorna Townsend considers a recent decision of the Employment Appeal Tribunal (EAT), in which it was held that a diminution in work alone did not result in a redundancy situation when there was no reduction in the number of employees required to carry out the work.
In this case (Welch v Taxi Owners Association (Grangemouth) Ltd), the claimant, a radio controller, brought a claim for constructive dismissal after her employer sought to impose a reduction in her hours. She argued before the tribunal that her employer should have approached the issue as a redundancy situation.
The tribunal hearing her claim concluded that there was no redundancy situation, since the company’s requirements for radio controllers had neither ceased nor diminished at the relevant time. It held that the claimant’s dismissal had been fair for ‘some other substantial reason’, namely the company’s genuine business need to reduce the hours of its radio controllers following a downturn in business.
The EAT has since upheld this decision, confirming that the claimant’s dismissal was not by reason of redundancy. In accordance with long-established case law authority, it was satisfied that for a redundancy situation to arise there must a diminution or cessation in the employer’s requirement for employees (i.e. the number of employees) to carry out the work in question, rather than merely a diminution in the work itself.
Comment
The difficulty with this decision is that it appears to directly conflict with the recent EAT decision in Packman t/a Packman Lucas Associates v Fauchon (see our previous briefing). In that case, a different division of the EAT concluded that an individual who was dismissed as a result of refusing to accept a significant reduction in hours was redundant, regardless of the fact that there was no reduction in the requirement for the number employees to carry out the work.
However, the present case was principally concerned with whether the claimant had been constructively dismissed, rather than the EAT considering in any detail the question of whether it could be interpreted as a redundancy situation.
In light of the apparent conflict between these two EAT decisions, an appeal to the Court of Appeal in either or both cases is desirable in order to clarify the position. In the meantime, employers should exercise caution in seeking to make any significant reduction in hours and be prepared for affected employees claiming a redundancy payment.
A copy of the EAT judgment is available here
Steeles Law’s Michael Fahy looks at some of the more contentious property aspects surrounding wind farms.
Click here to view the article in full published by Local Government Lawyer.
Lexia Media is celebrating a successful start to the summer with new client wins.
The company has been selected by Echo Barrier to help enhance the company’s trade and national profile.
Echo Barrier is at the forefront of noise-reduction and is becoming internationally recognised for its acoustic barrier technology. The company’s product designs are helping construction and high footfall sites throughout the UK to achieve significantly reduced noise issues – benefiting both contractor and nearby communities.
The firm approached Lexia Media to take part in a competitive tender, before selecting them for the creativity of their proposals and their established credentials with trade and national PR.
Lexia has also been selected by SO ACTIVE, a social enterprise that helps people with their physical and mental health through sport, outdoor and leisure activities. Lexia will be helping SO ACTIVE increase brand awareness across Suffolk and throughout the UK, as they continue their successful growth.
Managing director Deborah Watson said: “We are very excited to be increasing our portfolio of clients with a range of national and local, trade and consumer clients. The team is looking forward to implementing some creative campaigns for these organisations. We’re delighted to have been chosen for these contracts and we’re excited to get started.”
We are delighted to announce that complimentary room hire will be offered to all customers looking to hold a three-course dinner with us at Norwich City Football Club*. Choose from one of our stylish function rooms for your next awards dinner, anniversary party or wedding and our experienced Event Co-ordinators will work with you to find a menu that’s right for you.
To take advantage of this fantastic offer call Canary Catering now on 01603 218704 or e-mail [email protected].
*This offer excludes bookings taking place throughout the month of December and minimum numbers will apply.
With injunctions being served by Facebook, and the first “Twibel” case in the UK (libel duty comments made by Twitter) being won, a recent case regarding contracts made by email highlights how the law is attempting to keep pace with our ever changing forms of media.
Golden Ocean case
The case of Golden Ocean came to the Court of Appeal earlier this year. Golden Ocean claimed that a charterer had failed to honour its obligations to take delivery of the vessel under a guarantee worth in excess of $50 million. The defendants claimed there was no contract or guarantee in existence despite oral communication and an extensive chain of emails. Relying on section 4 of the Statute of Frauds 1677 (which requires that certain types of contracts must be recorded in writing with sufficient detail in order to be legally binding), the defendants argued that the guarantee was incomplete as it was contained over a number of emails which could not be patched together sufficiently, the names could not constitute signatures and that the final email referred to a formal contract being produced which never materialised.
The Court of Appeal, however, agreed with the claimants and the High Court, confirming that the string of negotiated emails promptly signed, albeit even if informally, such as by first name, initials or nickname, would constitute an enforceable guarantee. The key was that the parties intended to be bound by the arrangement irrespective of the fact that the formal document which was expected to be drafted was never actually produced.
This judgment is, perhaps, not all that controversial, as it has long been established that contracts can be formed over email and through other means of instantaneous communication. However, what is clear from Golden Ocean is that if parties show intent to be legally bound to one another, they will be. Stating “Subject to Contract” on the top of all communications and draft documentation can be a useful way of clearly indicating that you do not want the content to be legally binding.
Looking ahead
It is increasingly clear that the law needs to adapt to keep up with the ever moving world of media and social networking. It is expected that the Parliamentary Joint Committee on Privacy Injunctions will recommend that social networks, such as Facebook and Twitter, be subject to injunctions and in doing so force sights to remove libelous comments. The same Committee may also request that Google censors search results in order to block such material from being accessed.
The ways in which businesses choose to communicate with each other are changing and as they do we need to look to see how the law applies to new forms of media. What Golden Ocean shows us is that laws that are centuries old can be applied to the media reality of today. Whilst the method may be different, the same rules can still apply – statements made through new media will be taken as seriously as those made by traditional forms.
Some advice
In conclusion here are three top tips to bear in mind when you are negotiating a legal arrangement:
1.Complete a formal agreement: if you do wish to formally document an arrangement then you should take it upon yourself to draft (or indeed have a suitably qualified lawyer draft) the appropriate agreement and not start trading with a counter-party until such agreement is finalised.
2.“Subject to Contract”: clearly write the term “subject to contract” on the top of all communications and draft documentation which you do not wish to be binding.
3.Don’t be fooled by modern media: do not be naive and think that by using email, Twitter, Facebook and various other forms of modern media that you are somehow out of the reach of the law.
Leathes Prior’s Sports Team has continued to develop its expertise in assisting football clubs to survive in the difficult economic climate by advising Welling United of the Blue Square South division on its successful conversion to a Community Interest Company. See www.wellingunited.com for further details.
Full Contact’s Dan Chapman, assisted by Leathes Prior corporate lawyer Richard Guthrie, have advised Welling United throughout on their transfer from an unincorporated entity to a limited company which also has CIC status. Believed to be one of the first football clubs to have achieved such status, Welling may now become an example for other clubs to follow.
Richard Guthrie commented: “There is a growing trend for companies who have a real focus on supporting and being supported by their local community to seek CIC status, which is a relatively recent vehicle introduced in 2005 under the Companies (Audit, Investigation and Community Enterprise) Act 2004. Leathes Prior is able to advise companies in all sectors, sporting or otherwise, of the potential benefits of a conversion, taking into account other options such as CASC and charitable status”.
Dan Chapman added: “In an era where, quite rightly, more football clubs are considering passing some or all of their control to their fans, the community, supporters trusts and other such stakeholders it is vital that clubs take proper advice as to the best way to structure themselves. The CIC status was right for Welling United for a number of reasons, and we very much hope it is the start of a new era for this club which already does a lot for its local community. In a time when so many are commenting on the riches which are at play in the upper echelons of the football game, it is rewarding to be involved also in the real heartbeat of the game.”
One of the most notable features of a CIC is that it must operate at all times for the benefit of the community, and it is protected by an ‘asset lock’ which ensures (in the case of a football club) that decisions cannot ever be taken for private gain.
A recent Court of Appeal decision highlights the increasingly far reaching liability of employers for the actions of their employees.
Judgment in JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust was handed down on 12 July 2012. The question before the court was whether the church should be responsible for paying damages to a child who was abused by the priest at the church in the 70’s. The court said yes, the (now grown up) victim should be compensated by the church.
To many, it would seem intuitive that a victim of child abuse should be able to recover compensation from the wrongdoing organisation. However, the case actually threw up two key issues, namely: can sexual abuse ever fall within the course of the priest’s duties, and should the church be liable for the priest’s actions?
The first question was relatively straightforward to answer, thanks to a recent decision of the higher court. To be clear, an employer is not merely responsible for what its employees do under direct instruction from the employer. An employer is responsible for all actions which the employee takes which have a sufficiently close connection to the employee’s employment.
So in a 2001 case, Lister v Hesley Hall, the House of Lords confirmed that if an employee was entrusted to look after children, the employer would be liable for sexual abuse by the employee when he was supposed to be looking after them, and the victims could obtain damages from the employer. This was despite sexual abuse clearly being outside of the employee’s duties; his actions were sufficiently closely connected to his employment to pin liability on his employer.
So, in JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust, a victim of sexual abuse at the hands of the priest at the church was, in principle, able to claim damages against the bishop to whom the priest answered.
However, the church employed a further argument to avoid liability. The court took expert advice from Roman Catholic academics and found that the priest was not actually an employee (their relationship was intended to be determined by canon law, not civil law, so no employment relationship arose). The court therefore had to decide whether they could extend liability to a situation which was “akin to employment”.
In JGE, the Court of Appeal explicitly said “I confess I have found this difficult to decide”. Although the legal framework is a very real constraint on the court, the judges must have felt huge reluctance to find that a victim of child abuse should not be able to recover damages, particularly when even the barrister for the church described the priest’s actions as “abhorrent”, and rightly too.
The court therefore confirmed that liability in relationships “akin to employment” can be found under specific circumstances, and indeed found such liability in this situation. So, even though the priest was specifically held to not be an employee, the church could still be liable for his actions because he was in a position which was “akin to employment”; the key question being one of control.
This decision does, of course, have huge implications for a modern economy. A business (or, indeed, charitable organisation) can no longer absolve itself of the wrongdoings of another simply because that other is not an employee. A business must ensure that all individuals over whom they exercise sufficient control take proper care in the exercise of their duties (and should probably obtain appropriate insurance), even if the business does not employ them.
Conversely, an injured victim may now be able to obtain compensation from the organisation which had actual control of a situation, and the organisation which might more properly be expected to be insured.
The church has been refused permission to appeal to the Supreme Court, but specifically because that court is due to give judgment in a similar case, Various Claimants v The Catholic Child Welfare Society and the Institute of Brothers of the Christian Schools & ors, very soon (the hearing was on 23 July 2012). That case may provide further clarity.
It may surprise some readers to learn that the above cases have almost no bearing whatsoever on employment law and the rights and obligations as between employers and employees. This fact serves only to show how complex the law of both employment and personal injury is, and proper advice should be sought if in any doubt whatsoever.
Employers using zero hours contracts should be aware of a recent decision of the Employment Appeal Tribunal (EAT), in which it was held that individuals engaged under such a contract had continuity of employment. Professional support lawyer Elizabeth Stevens reports.
This case concerned a group of care workers, employed to provide 24 hour care to a severely disabled woman. The contract for the provision of the care service between their employer, Carewatch Care Services Ltd (Carewatch), and the local primary care trust was terminated and a new contract was entered into with Pulse Healthcare Limited (Pulse). The individuals who were engaged to provide the care claimed that their employment transferred to Pulse under the provisions of TUPE.
Pulse denied that the claimants were employees on the basis that they were engaged under a contract headed “Zero Hours Contract Agreement”, which included a provision stating that they were free to work for other employers. Pulse therefore claimed that the ‘mutuality of obligation’ necessary for an employment relationship did not exist. If the claimants were not employees, they would not be covered by the provisions of TUPE.
The employment tribunal disagreed that this reflected the reality of the situation, highlighting the fact that the claimants had worked fixed hours on a regular basis over a number of years. The contract made repeated references to “employment”, and included many of the usual provisions of an employment contract including annual leave, sickness, termination and pension. The individuals were provided with a uniform and were paid on a PAYE basis. The employment tribunal therefore concluded that the individuals were employees, with continuity of employment. Pulse appealed the tribunal’s decision.
The EAT has upheld the tribunal’s decision on the employment status of the claimants. The judge highlighted the evidence demonstrating the critical nature of the care package provided by the claimants and the importance of maintaining an established team of carers for the client. In the judge’s view, it was fanciful to suppose that Carewatch relied on ad hoc arrangements in the provision of such a package. The EAT considered that the tribunal had been justified in its conclusion that the “Zero Hours Contract Agreement” did not reflect the true agreement between the parties.
Comment
This decision reflects the willingness of the courts and tribunals, particularly since the decision of the Supreme Court in Autoclenz v Belcher (see our report), to look beyond the terms of the written agreement to assess the true nature of the relationship between the parties.
It seems clear from the evidence in this case that the contract was not drafted in terms properly consistent with a genuine zero-hours arrangement, and that the reality of the arrangement was consistent with an employment relationship.
The case will now return to the employment tribunal to determine whether the claimants’ employment transferred to Pulse under TUPE.
In practice, the majority of zero-hours contracts will establish an employment relationship. With careful drafting, and depending on the frequency an individual is engaged under such a contract, it might be possible to prevent continuity of employment arising in between each assignment under the contract. However, employers should be very cautious in relying on such contracts if they do not reflect the reality of the arrangement between the parties.
A copy of the EAT judgment is available here