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.26: Rights, duties & the 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 27:
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 27
MODEL 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.


BEING CLEAR ABOUT OVERTIME PAY

Added 24/1/12. This information updates s.27.2.5 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
If an employee is or might be required to work overtime, the arrangements for the overtime and for overtime pay (if any) must be included in the statement of particulars required under the Employment Rights Act 1996. If the pay arrangements (or an alternative, such as time off in lieu) are not specified, a court may imply a "reasonable sum" for overtime pay into the contract.

In Driver v Air India, a case involving an airline catering services manager, Driver's contract said he could be required to work overtime, and said the details would be set out in notices and circulars. However such documents were never provided to Driver, nor were they produced in court when he brought claims against the company.

Driver had worked for Air India in Frankfurt from 1972 to 1997, and then at Heathrow. He regularly worked overtime, and was generally paid for this until December 2001. When overtime payments stopped in 2002, he raised a number of grievances about this and other issues, until leaving the company in January 2007. During that period a committee set up by Air India to investigate his claims and make recommendations found that Driver was a conscientious and effective worker who had saved the company money and that he did the overtime only when it was legitimately necessary (for example, to meet a landing plane on his day off), and recommended that he should be paid. However, the employer still failed to pay for the overtime.

Driver brought a claim in the high court, which found in favour of Air India and Driver appealed. One of Air India's arguments was that the overtime working had to be authorised in advance; the court of appeal said the contract as worded did not require this, and in any case the overtime working was essential rather than just a failure to fit the required work into the contractual hours, and in many cases his overtime pay claims had been signed by his manager. The court also noted that Air India had paid for overtime in the past, and even when responding to Driver's grievances had never said he did not have a right to overtime pay. The court of appeal, finding in favour of Driver, awarded him more than £77,000 overtime pay, plus interest.

The court of appeal decision in Driver v Air India is at www.bailii.org/ew/cases/EWCA/Civ/2011/830.html.

This was a complex case, with a number of very specific circumstances, so everyone who thinks they are owed overtime pay shouldn't get too excited. However, the case does appear to indicate that even where a contract does not specify the amount of overtime pay, there may be an implied entitlement to such pay if the contract says that overtime working is or might be required; the contract does not state that overtime working must be authorised in advance (or, if it does say this, the overtime working has been authorised as required); the overtime is necessary for specific ad hoc tasks rather than just because there is too much work to do within the normal working hours; the overtime is recorded at the time it is taken and overtime pay is claimed promptly; and the claim is not explicitly rejected by the employer.


TUC GUIDANCE ON DRUG TESTING

Added 7/11/10. This information expands s.27.5.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Although drug testing is regularly used by employers in safety critical areas such as transport, energy generation and construction or after an incident, it is generally rejected by other employers because of cost, union objections, or doubts over its effectiveness.

In its Drug testing in the workplace guidance, published in May 2010, the TUC agrees that drug use in the work place must be tackled but says that random drug testing is of "dubious legality", and employers need be very clear about their reasons and methods before undertaking such tests. The guidance is at www.tuc.org.uk/h_and_s/tuc-18000-f0.cfm.

The TUC recommends a drugs and alcohol policy as an effective way to combat drug use, which further supports the employer's duty to protect workplace safety. ACAS's Health, work and wellbeing, updated in September 2010 and available at www.acas.org.uk/CHttpHandler.ashx?id=854, includes checklists of elements of a good drugs and alcohol policy.

In addition to health, safety and capability issues, public sector bodies have to abide by the Human Rights Act 1998, which gives a right to privacy and dignity which many people believe is breached by drug testing. Such bodies may require organisations which they fund, or from which they purchase services, to comply with the HRA.

Even where the HRA may not directly apply, the Information Commissioner's Office's employment practices code covers employees' privacy and data protection, and puts strict limits on the health information that can be obtained by employers. The ICO code says that random testing of all workers "will rarely be justified".

The ICO's quick guide to its employment practices code can be accessed via tinyurl.com/2e2ycl. The full code is at tinyurl.com/qochx. Supplementary guidance, including detailed guidance on medical, drug, alcohol and genetic testing, is at tinyurl.com/6ht8oc.

An additional legal factor is that employment tribunals have ruled that an employer cannot dismiss someone simply because they have been found in possession of drugs outside the workplace.

Unless there is contractual obligation to provide a drug test sample, an employer cannot force employees to provide a sample of urine, hair, saliva or blood for any purpose.

An employer who decides to introduce a testing programme must ensure that:

  • it is done by a laboratory accredited by the UK Accreditation Service;
  • it is part of an effective and agreed workplace drug and alcohol policy which aims at supporting any person with a drug or alcohol problem;
  • it is only done after impairment testing has been carried out and there is evidence that the person may be impaired as a result of drugs;
  • no samples are taken without the informed consent of the person, and this consent was not given under duress;
  • there is an appeals process, with right to union representation, for anyone who tests positive.



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for the voluntary sector

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