SANDY ADIRONDACK
Legal and governance training and consultancy
for the voluntary sector
OTHER CHAPTERS
I. THE ORGANISATION

Ch.1: Setting up an organisation
Ch.2: Unincorporated organisations
Ch.3: Incorporated organisations
Ch.4: Charitable status, charity law & regulation
Ch.5: The organisation's objects
Ch.6: The organisation's name
Ch.7: The governing document
Ch.8: Registering as a charity
Ch.9: Branches, subsidiaries & group structures
Ch.10: Changing legal form
Ch.11: Collaborative working, partnerships and mergers
II. GOVERNANCE
Ch.12: Members of the organisation
Ch.13: Members of the governing body
Ch.14: Officers, committees & sub-committees
Ch.15: Duties & powers of the governing body
Ch.16: Restrictions on payments & benefits
Ch.17: The registered office & other premises
Ch.18: Communication & paperwork
Ch.19: Meetings, resolutions & decision making
Ch.20: Assets & agency
Ch.21: Contracts & contract law
Ch.22: Risk & liability
Ch.23: Insurance
Ch.24: Financial difficulties & winding up
III. EMPLOYEES, WORKERS, VOLUNTEERS & OTHER STAFF
Ch.25: Employees & other workers
Ch.27: Model contract of employment
Ch.28: Equal opportunities in employment
Ch.29: Taking on new employees
Ch.30: Pay & pensions
Ch.31: Working time, time off & leave
Ch.32: Rights of parents & carers
Ch.33: Disciplinary matters, grievances & whistleblowing
Ch.34: Termination of employment
Ch.35: Redundancy
Ch.36: Employer-employee relations
Ch.37: Employment claims & settlement
Ch.38: Self employed & other contractors
Ch.39: Volunteers
IV. SERVICES & ACTIVITIES
Ch.40: Health & safety
Ch.41: Safeguarding children & vulnerable adults
Ch.42: Equal opportunities: goods, services & facilities
Ch.43: Data protection & use of information
Ch.44: Intellectual property
Ch.45: Publications, publicity & the internet
Ch.46: Campaigning & political activities
Ch.47: Public events, entertainment & licensing
V. FUNDING & FUNDRAISING
Ch.48: Funding & fundraising: General rules
Ch.49: Fundraising activities
Ch.50: Tax-effective giving
Ch.51: Trading & social enterprise
Ch.52: Contracts & service agreements
VI. FINANCE
Ch.53: Financial procedures & security
Ch.54: Annual accounts, reports & returns
Ch.55: Auditors & independent examiners
Ch.56: Corporation tax, income tax & capital gains tax
Ch.57: Value added tax
Ch.58: Investment & reserves
Ch.59: Borrowing
VII. PROPERTY
Ch.60: Land ownership & tenure
Ch.61: Acquiring & disposing of property
Ch.62: Business leases
Ch.63: Property management & the environment
VIII. BACKGROUND TO THE LAW
Ch.64: How the law works
Ch.65: Dispute resolution & litigation
UPDATED INFORMATION FOR CHAPTER 26:
THE RUSSELL-COOKE
VOLUNTARY SECTOR LEGAL HANDBOOK

This page contains information that has appeared on Sandy Adirondack's legal update website for voluntary organisations at www.sandy-a.co.uk/legal.htm. For current updates, including potential changes that are in the pipeline, see the legal update website.

These websites for each chapter update the 3rd edition of The Russell-Cooke Voluntary Sector Legal Handbook by James Sinclair Taylor and the Charity Team at Russell-Cooke Solicitors, edited by Sandy Adirondack (Directory of Social Change, 2009). The websites are not intended as a comprehensive update and should not be treated as such.

To order a copy of The Russell-Cooke Voluntary Sector Legal Handbook, print out the order form at www.sandy-a.co.uk/bookserv.htm or send an email order by clicking . It costs £60 for voluntary organisations or £90 for others, plus 10% p&p.

To avoid spamming, an email address is not given on screen. If you can't see the word 'here' or have trouble sending an email by clicking on it, the address is bookservice at sandy-a.co.uk, with the spaces and 'at' replaced by the @ symbol.

The information here covers the law applicable to England and Wales. It may not apply in Northern Ireland and/or Scotland. These news items are not a full or definitive statement of the law and are not intended as a substitute for professional legal advice. No responsibility for loss occasioned as a result of any person acting or refraining from acting can be taken by the author.


Chapter 26
RIGHTS, DUTIES AND THE CONTRACT OF EMPLOYMENT


The items below formerly appeared on the legal update website for voluntary organisations and are archived here. The content may be out of date and links may not work. For current updates to the chapter, see the legal update website for voluntary organisations at www.sandy-a.co.uk/employment.htm.


EMPLOYMENT RESOURCES

Updated 14/1/12. This information updates various sections in The Russell-Cooke Voluntary Sector Legal Handbook.
PEACe — the Personnel, Employment Advice and Conciliation service based at London Voluntary Service Council — has a dedicated website with a document bank containing template HR policies, model procedures and guidance documents produced in partnership with Russell-Cooke Solicitors. These cover the employment basics through to the complex HR issues encountered by the voluntary and community sector. Many of the resources are free, but for others there is a charge. An annual subscription, providing unlimited downloads and an update alert service, is £100 + VAT, with a 10% discount for LVSC, NCVO or Children England members and Target HR participants. Details are at www.lvsc.org.uk/peace.

The Church Urban Fund has updated Just employment: A guide to employing staff in faith-based projects. This includes a large range of online guidance, case studies and templates intended primarily for faith-based organisations but suitable for most small organisations. It is at tinyurl.com/7g2xzoy. Its eight sections include introduction, recruitment and selection, documentation, pay and reward, performance management, dismissal and redundancy, policies and procedures, and volunteers.

Acas has created an online "model workplace" to help employers identify and resolve problems at work. Its 10 modules, each of which includes seven to 10 multiple choice questions and takes about 15 minutes, cover recruitment, selection and induction; pay and reward; performance management; flexible working and work-life balance; equality and diversity; communication and involvement; employee representation; discipline and grievance; managing change; and key performance indicators in people management. Details are at www.acas.org.uk/index.aspx?articleid=2806.

Enforcing basic workplace rights, published by the Trades Union Congress on 2 December 2011, is intended for union officials and representatives, but useful for everyone. It outlines the role played by the UK's four main employment-related statutory agencies — the Health and Safety Executive, Employment Agency Standards Inspectorate, Gangmasters Licensing Authority and HMRC national minimum wage enforcement team — and describes the powers of enforcement officers and the sanctions employers can face for breaking employment law. It is at www.tuc.org.uk/tucfiles/177/enforcingbasicworkplacerights.doc.

The government's pay and work rights confidential helpline gives employers, workers and union reps basic information and advice about the national minimum wage, agricultural minimum wage, working time (in particular the 48-hour limit and night work), employment agency standards and gangmaster licensing standards. The telephone helpline is open 8am-8pm weekdays and 9am-1pm Saturdays, on 0800 917 2368 (free from landlines and most mobiles). An online enquiry form is at https://payandworkrights.direct.gov.uk/. The telephone helpline has translation facilities.

The Cranfield Trust has a free internet HR advice service for registered charities. After becoming a member of the service, charities are able to post their HR queries on a dedicated website and receive bespoke answers from experienced HR professionals. Where questions are about sensitive situations, or where confidentiality is required, questions can also be dealt with off forum. More information is available on the Trust's website via tinyurl.com/d25w49. The Trust also provides free tailored management consultancy projects addressing HR and other management issues, working with a national register of 700 volunteer consultants who are management professionals from the commercial sector. Information is at www.cranfieldtrust.org.


UPDATED EMPLOYER'S CHARTER

Added 17/3/12. This information updates chapter 26 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Department for Business, Innovation and Skills announced on 15 March 2012 that the employer's charter, first published in January 2011, has been revised to include what BIS calls "pointers" on sickness absence and recruitment. The charter is intended to raise awareness and give clarity amongst employers on what they can or can't do when managing their staff, but I find it simplified to such an extent that an employer who relies on it could be more likely, not less, to end up in tribunal.

Examples that I gave in January 2011 — and that still remain — are that employers, as long as they act fairly and reasonably, are entitled to:

  • ask an employee to take their annual leave at a time that suits the business [but does not make clear that in relation to statutory annual leave, notice as required under the Working Time Regulations must be given, and an employee can be required to take contractual annual leave at a specified time only if the contract allows — see Russell Cooke Voluntary Sector Legal Handbook s.31.4.3.1];
  • make an employee redundant if the business takes a downward turn [but does not make clear that a person can be made redundant only if there is no suitable alternative work — see VSLH s.35.6];
  • ask an employee to take a pay cut [but does not make clear that imposing a pay cut without the employee's consent is likely to be a breach of contract — see VSLH s.26.9];
  • ask an employee about their future career plans, including retirement [but does not make clear that doing so in a way that implies, or could be taken as implying, that the employer is encouraging the employee to leave could potentially give rise to a claim for constructive unfair dismissal — see VSLH s.34.2.9].
The revised charter can be accessed via tinyurl.com/7dzmev9.

'DISCUSSION' ON EMPLOYER'S CHARTER

Added 30/1/11. This information updates chapter 26 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
From 27 January to 20 April 2011, the Department for Business, Innovation and Skills is asking for comments on a draft employer's charter "intended to raise awareness and give clarity amongst employers on what they can or can't do when managing their staff".

I find the charter simplified to such an extent that an employer who relies on it could be more likely, not less, to end up in tribunal. For example, it says that employers, as long as they act fairly and reasonably, are entitled to:

  • ask an employee to take their annual leave at a time that suits the business [but does not make clear that in relation to statutory annual leave, notice as required under the Working Time Regulations must be given, and an employee can be required to take contractual annual leave at a specified time only if the contract allows — see Russell Cooke Voluntary Sector Legal Handbook s.31.4.3.1];
  • make an employee redundant if the business takes a downward turn [but does not make clear that a person can be made redundant only if there is no suitable alternative work — see VSLH s.35.6];
  • ask an employee to take a pay cut [but does not make clear that imposing a pay cut without the employee's consent is likely to be a breach of contract — see VSLH s.26.9];
  • ask an employee about their future career plans, including retirement [but does not make clear that doing so in a way that implies, or could be taken as implying, that the employer is encouraging the employee to leave could potentially give rise to a claim for constructive unfair dismissal — see VSLH s.34.2.9].
Information about the charter and a link to the 'discussion' about the charter can be accessed via tinyurl.com/474d8ln.

RIGHTS OF AGENCY TEMPS

Updated 13/1/12. This information updates s.26.4.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
From 1 October 2011, when the Agency Workers Regulations 2010 came into effect, agency workers (often referred to as temps) in England, Wales and Scotland who are placed on assignment by a temporary work agency (TWA) are entitled to the same basic employment rights as a comparable employee or worker (the comparator) directly employed by the receiving organisation (the hirer).

Comparators
To be a comparator, the directly employed employee or worker must be working for and under the supervision and direction of the same hirer as the agency worker; and the employee or worker must be engaged in the same or broadly similar work as the agency worker, taking into account, where relevant, whether they have a similar level of qualification and skills. The directly employed employee or worker and agency worker must both work or be based at the same workplace, but if there is no employee or worker meeting the above criteria at that workplace, the comparator can be an employee or worker meeting the criteria who is based at another of the hirer's workplaces.

A person whose employment has ceased cannot be a comparator.

If there is no comparator, there is no entitlement to agency worker rights except for the right to paid time off for ante-natal appointments and for pregnancy- and maternity-related adjustments. Agency workers are, of course, entitled to the statutory rights that all employees and workers have such as national minimum wage, working time rights, and rights to protection under the Equality Act.

Rights from Day 1
From Day 1 of starting an assignment by a temporary work agency, an agency worker must be granted the same access as a comparator to on-site collective facilities and amenities such as canteens, childcare facilities, showers, transport services, staff rooms and car parking. This access does not have to be provided if the hirer has objective justification for not doing so. Cost on its own is unlikely to be treated as sufficient justification.

Also from Day 1, the agency worker must must be given or have access to the same information about the employer's vacancies as a comparable directly employed employee or worker at the same location (but not at a different location) would be given or have access to, and must have the same opportunities to apply for permanent jobs.

Rights after 12 weeks
After a 12-week qualifying period in the same job with the same hirer, an agency worker is entitled to the same contractual rights as a comparator in relation to key elements of pay, including salary, overtime, shift allowances, annual leave pay, bonuses relating to the individual's performance or productivity, meal vouchers, duration of working time, night work, rest periods, breaks and annual leave. There are, however, a number of exceptions in relation to pay, including contractual sick pay and pension rights, as well as contractual maternity, paternity, adoption and redundancy pay.

All expectant and new mothers will benefit from increased protection after completing the 12 weeks' qualifying period, without there having to be a comparator. These are the right to paid time off for ante-natal appointments, and for classes and medical examinations if these are recommended by the woman's doctor; and the right to adjustments to working conditions and working hours if required for health and safety reasons. The agency worker must notify the agency of her pregnancy, and must also notify the hirer in writing. The hirer must carry out a risk assessment at any time during the pregnancy, with six months of the birth or if the mother is breastfeeding if it determines that one is necessary or if the agency asks the hirer to do so. If the hirer identifies a risk it must make an adjustment if it is reasonable to do so. If it is not possible for the hirer to adapt the work, the agency must offer suitable alternative work with another hirer if it is available, or pay the worker until the original assignment would have ended.

For agency workers on assignment on 1 October 2011, the 12-week period starts on that date. Work before 1 October is not counted towards the qualifying period.

Accrual of the 12-week qualifying period is 'paused' by a break of six weeks or less in the assignment, absence due to sickness or jury service (up to 28 weeks), annual leave, planned shutdowns such as factory closures or school holidays, or when the worker is unable to work because of industrial action. Accrual of the 12 weeks continues, without being paused, during absence related to pregnancy, childbirth or maternity, or during maternity, paternity or adoption leave. Accrual of the 12-week period is broken if there is a gap of more than six weeks in the assignment, or if a second assignment is significantly different from the first.

Liability
Both the agency and the hirer can be held liable for breach of the regulations. There is an exception for on-site facilities, where the hirer is solely liable.

The hirer should check that the agency has appropriate procedures in place to comply with the regulations, and to protect itself in case of a tribunal claim the hirer should keep records of how it determined comparable pay and conditions for its agency workers.

Further information
The Department for Business, Innovation and Skills has a detailed guide setting out definitions of temporary work agency, agency worker, comparator etc; the rights to which agency workers are entitled; criteria to be used when determining comparable pay and conditions; how the 12-week qualifying period is worked out and how breaks in work are dealt with, etc. It is at tinyurl.com/66uszcm.

Acas has a summary of the main points at www.acas.org.uk/index.aspx?articleid=1873.

The Trades Union Congress's guide to the regulations is at www.tuc.org.uk/workplace/tuc-20092-f0.cfm.

Directgov has information intended for agency workers at tinyurl.com/3vczsvx.

The Agency Workers Regulations 2010 are at www.legislation.gov.uk/uksi/2010/93/contents/made.
The Agency Workers (Amendment) Regulations 2011 are at www.legislation.gov.uk/uksi/2011/1941/made.

The regulations implement the EU Agency Workers Directive (also called the Temporary Agency Workers Directive).



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