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.27: Model contract of employment
Ch.28: Equal opportunities in employment
Ch.29: Taking on new employees
Ch.30: Pay & pensions
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 31:
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 31
WORKING TIME, TIME OFF AND LEAVE


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.


ON-CALL TIME AS WORKING TIME

Updated 2/4/10. This information is included in s.31.2.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
After years of uncertainty about what constitutes on-call time for the purposes of the Working Time Regulations 1998, the European Court of Justice eventually confirmed in 2003 that on-call time includes time when a worker is required to be at or near a place of work specified by the employer, even if they are sleeping or doing something other than working. If they are not required to be at a place of work, working time includes only the time they are actually working.

In 2008 discussions took place within the EU about whether the EU working time directive, on which the working time regulations are based, should be amended so that on-call time would be divided into active (when carrying out work for the employer) and inactive, with inactive on-call time not counting as working hours. This proposal was not agreed.

For the purposes of minimum wage the rules are different, and time when on call but sleeping is not working time for minimum wage, unless their contract says they will be paid for the whole time while on call.


THE WORKING TIME OPT-OUT:
STILL IN PLACE


Updated 4/5/09. This information is included in s.31.2.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Under the Working Time Regulations 1998 an individual worker may agree at any time to opt out of the 48-hour working week limit, but cannot be forced to do so. There was a possibility that the EU working time directive, on which the working time regulations are based, would be revised and the right to opt out would be amended or removed.

The EU social affairs council proposed in June 2008 that the provision for opting out should be retained, but with a limit of 60 hours per week averaged over three months for opted-out workers. If inactive on-call time is counted as working time the maximum should be 65 hours. Then the EU parliament voted on 17 December 2008 that opt-outs should not be allowed, there should be an absolute maximum 48 hours per week working time but it should be averaged across 12 months rather than the current 17 weeks or the social affairs council's proposed three months, and EU member states which allow opt-outs should cease to do so within three years of the new EU directive being adopted.

A conciliation process collapsed on 28 April 2009, with the differences between the European Commission, the EU parliament and member states unable to be resolved. The current working time directive therefore remains in force.


INCREASE IN STATUTORY ANNUAL LEAVE

Updated 14/6/09. This information is included in s.31.4.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Statutory annual leave increased from 4.8 weeks to 5.6 weeks (from 24 days to 28 days for a person working a five-day week) on 1 April 2009. Some employers include the eight bank holidays as part of the statutory entitlement. The change in effect ensures that from April 2009 all full-time workers working a five-day week get their entitlement of 20 days under the EU working time directive, plus time off equivalent to the bank holidays. For part-time workers, the entitlement is pro rata.

To ensure employees get the correct entitlement, it is essential to look closely at contracts of employment, and at the holiday entitlement that employees were given prior to April 2009 if it is different from what is in their written contract. The exact wording may make a difference to their new entitlement.

Business Link has detailed information about statutory annual leave, including how to calculate entitlement for part-time, casual and other atypical workers. The Business Link guidance can be accessed via tinyurl.com/9v7p7y.

The Working Time (Amendment) Regulations 2007 are at www.opsi.gov.uk/si/si2007/20072079.htm.


ROYAL WEDDING BANK HOLIDAY

Added 30/1/11. This information updates s.31.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Statutory annual leave is 28 days (5.6 weeks) for a person working a five-day week, representing 20 days leave entitlement under the EU working time directive, plus time off equivalent to eight bank holidays (new year's day, Good Friday, Easter, early May, late May and August bank holidays, Christmas and boxing day). For part-time workers, the entitlement is pro rata.

If the contract of employment says nothing about holidays, a full-time employee is entitled to 28 days/5.6 weeks (pro rata for part-time) with no additional entitlement to either ordinary or special bank holidays (like the royal wedding holiday on 29 April 2011). If the contract specifies a certain number of days or weeks (which must be at least 20 days/4 weeks) plus bank holidays, the employee will be entitled to the royal wedding day or another day in lieu, or for part-timers a pro rata number of hours.

Detailed information about statutory annual leave and bank holidays, including how to calculate entitlement for part-time, casual and other atypical workers, is on the Business Link website via tinyurl.com/9v7p7y.


QUEEN'S DIAMOND JUBILEE BANK HOLIDAY

Added 27/2/12. This information updates s.31.4.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The bank holiday which would normally have been 28 May is being moved to Monday 4 June 2012, with an additional bank holiday on Tuesday 5 June to create a long weekend for the Queen's diamond jubilee.

For a person working a five-day week, statutory annual leave is 28 days (5.6 weeks), representing 20 days leave entitlement under the EU working time directive, plus time off equivalent to eight bank holidays (new year's day, Good Friday, Easter, early May, late May and August bank holidays, Christmas and boxing day). For part-time workers, the entitlement is pro rata.

There is no statutory entitlement to extra paid time off if there is an extra bank holiday. So if the contract of employment says nothing about holidays, a full-time employee is entitled to 28 days/5.6 weeks (pro rata for part-time) with no additional entitlement to either ordinary or special bank holidays. If the contract specifies a certain number of days or weeks (which must be at least 20 days/4 weeks) plus bank holidays, the employee will be entitled to the extra jubilee day or another day in lieu, or for part-timers a pro rata number of hours.

Even if the contract does not allow for extra paid time off for ordinary or special bank holidays, employees may be entitled to this through custom and practice if the employer has usually provided it in the past. An employer who has provided paid bank holidays above the statutory or contractual entitlement in the past should take advice before discontinuing the practice.

Detailed information about statutory annual leave and bank holidays, including how to calculate entitlement for part-time, casual and other atypical workers, is on the Business Link website via tinyurl.com/82hgufa, and in the ACAS Holidays and holiday pay booklet at www.acas.org.uk/CHttpHandler.ashx?id=955&p=0.

See also Arrangements and time off during the Olympics and Paralympics.


EMPLOYEE'S FAILURE TO GIVE NOTICE
FOR ANNUAL LEAVE


Added 15/2/10. This information updates s.31.4.6 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Although there is a statutory entitlement under the Working Time Regulations 1998 to 5.6 weeks annual leave, the employee must give notice to the employer as required under the contract of employment, a workplace agreement, or the default statutory provisions. The regulations also say that statutory annual leave must be taken within the leave year and cannot be carried over, and that except on termination of employment, there is no entitlement to pay for statutory leave not taken.

The employment appeal tribunal confirmed on 18 January 2010 that if an employee fails to give notice as required, and there is then not enough time to give correct notice and take the leave before the end of the year, the employee cannot carry the leave over and use it in the next year. Although some commentators describe this decision as "use it or lose it", it can more accurately be described as "give proper notice or lose it".

The decision in Lyons v Mitie Security Ltd is at www.bailii.org/uk/cases/UKEAT/2010/0081_09_1801.html.

Note that this rule is likely not to apply where the employee is prevented from giving proper notice because of sickness — see Holiday pay and long-term sickness and Sickness during annual leave below.


FIT NOTES

Updated 30/1/11. This information updates in s.31.6.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Since 6 April 2010, sick notes saying an employee is not fit for work have been replaced with computer-generated fit notes saying the person is either not fit for work, or "may be fit for work taking account of the following advice". A third option, certifying that the employee is fit for work, was not included, because of widespread concern that GPs would not know enough about particular jobs to know whether the employee is fit to do them.

The purpose of the fit note is to facilitate a return to work, by listing options such as a phased return to work, changes in duties and/or hours, or workplace adaptations, and by encouraging discussion between the GP and employee and between the employee and employer. Proposals for a longer list of options, including an option that the employer refer to employee to an occupational health consultant, have not been included in the final regulations.

Employers need to carefully consider recommendations made by the GP, especially where the employee is or could be legally disabled under the Disability Discrimination Act 1995 and could therefore bring a claim against the employer for failure to make reasonable adjustments.

But ultimately it is the employer in consultation with the employee who makes the decision about whether to follow the GP's advice. If a change or adaptation to enable the employee to return to work is not possible, the employee remains not fit for work until the end of the fit note period, or until a suitable change or adaptation is possible.

If a change or adaptation is agreed, it should be for a clear period and should be kept under review (not "until you feel able to do more" but "for three weeks [or whatever] and then we will review it".

During the first six months of a health condition, the maximum period for a fit note is three months. After the first six months, the fit note can be for "any clinically appropriate period".

The Department for Work and Pensions' guidance, Statement of fitness for work: A guide for employers, with a summary of the rules, case studies and frequently asked questions, is at www.dwp.gov.uk/docs/fitnote-employer-guide.pdf.
Guidance for employees is at www.dwp.gov.uk/docs/fit-note-employee-guide.pdf.

CIPD, the Health and Safety Executive, Healthy Working Lives and the British Occupational Health Research Foundation have produced guidance specifically for managers who are supporting employees returning to work after long-term sickness. It can be accessed via tinyurl.com/2uw4vdm.

The Social Security(Medical Evidence) and Statutory Sick Pay (Medical Evidence) Regulations 2010 are at www.opsi.gov.uk/si/si2010/uksi_20100137_en_1.


MANAGING LONG-TERM SICKNESS ABSENCE

Added 15/2/10. This information updates in s.31.6.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The National Institute for Health and Clinical Excellence (NICE) published guidance in mid-2009 for employers and managers who manage long-term, or recurring short- or long-term, sickness absence and incapacity. It is also relevant for trade union and employee representatives, employees, and people receiving incapacity benefit or employment and support allowance.

The recommendations for employers are:

  • identify someone who is suitably trained and impartial to undertake initial enquiries with an employee who is experiencing long-term sickness absence or recurring short- or long-term sickness absence, in particular those with musculoskeletal disorders or mental health problems;
  • if necessary, arrange for a more detailed assessment by relevant specialist(s), which could be coordinated by a suitably trained case worker;
  • coordinate and support any health, occupational or rehabilitation interventions or services and any return-to-work plan agreed with the employee;
  • ensure employees are consulted and jointly agree all planned health, occupational or rehabilitation interventions or services and the return to work plan, including workplace or work equipment modifications.
The guidance can be accessed at www.nice.org.uk/ph19.

TIME OFF FOR PUBLIC DUTIES

Updated 15/2/10. This information updates s.31.7 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Employees have a statutory right to time off, which may be either paid or unpaid, for specified public duties. The Department for Communities and Local Government consulted in 2008 on whether the right to time off should be extended to include members of probation boards, court boards and youth offender panels; board members of probation trusts; lay advisors for multi-agency public protection arrangements; co-opted overview and scrutiny committee members; board members of registered social landlords; and board members of tenant management and armís length management organisations. The consultation was also about ways to encourage participation in voluntary sector boards, but DCLG did not propose a statutory right to time off for this.

The government announced in October 2009 that it would take a non-regulatory approach. This will include an information pack outlining the range of roles available, and what the government sees as the benefits to employers of allowing employees time off to undertake these roles.

Standing for office: Time off entitlements - Government response is available via tinyurl.com/yeq943c.


TIME OFF FOR TRADE UNION DUTIES

Added 15/2/10. This information updates s.31.8.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
An updated ACAS code of practice on time off for trade union duties and activities came into effect on 1 January 2010. Failure to comply with the code is not in itself an offence, but will be taken into account if a relevant claim is brought against the employer. Updated content includes the use of electronic communications, and the responsibility of line managers and union representatives to ensure time off arrangements are effective.

The code can be accessed at www.acas.org.uk/index.aspx?articleid=2391, along with ACAS guidance on the roles, responsibilities and rights of trade union representatives and — where there is no recognised union — employee representatives.


ISSUES, ARRANGEMENTS AND TIME OFF DURING THE OLYMPICS AND PARALYMPICS

Added 29/2/12. This information adds a section on 'special events and situations' at the end of s.31.8 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
As usual whenever there is a special event that could create travel difficulties for staff, make them want time off and/or lead to them spending work time watching the event on the internet, employers need to plan in advance for issues arising from the Olympics and Paralympics.

  • Transport. The new Get ahead of the Games website at www.getaheadofthegames.com has — and will continue to add — detailed information about road, bus, underground, rail and river transport during the Games.

    The LOCOG website has advice specifically for businesses and other organisations, including issues around staff getting to and from work, work-related travel, deliveries, collections, suppliers and visitors, at tinyurl.com/6yqo5tv. The LOCOG website also includes an action plan template and example case studies.

    Where possible, organisations may want to agree with relevant staff that hours can be temporarily changed so they are not travelling during busy times, and/or that work can be done in compressed hours to reduce travel (for example five days work done in four days), and/or that work can be done from home or at another location. Such decisions can be more easily and fairly made if the organisation has assessed its operational requirements during the Games periods, so everyone knows which hours need to be covered, how many staff must be present etc.

    Where employees are allowed to work from home, issues such as data protection, confidentiality and security should be considered.

    Where staff hours cannot be changed or staff cannot work from home, they should be encouraged to look at alternative means of travel, alternative routes and car sharing. Journeys for work purposes should be minimised.

    Because of delivery and parking issues supplies may need to be ordered further in advance than usual, and if the organisation offers 'next day delivery', 'delivery within one week' etc it may need to make clear than this cannot be guaranteed during the Games.


  • Volunteering. The approximately 70,000 Olympic and Paralympic volunteers will generally need to commit to 10 days during the Games and three days training before. ACAS has guidance for employers and employees at www.acas.org.uk/olympics, on whether employees have a right to take time off for volunteering (no, unless their contract or an organisational policy says they do), and whether employees have a right to be paid for the time they are volunteering (no, unless they take it as paid annual leave, their contract entitles them to paid time off for volunteering, or the employer agrees special paid leave).

    Where employees do not have enough annual leave, the guidance says that many employers recognise the value of volunteering and may give special leave, paid or unpaid, if this can be done without jeopardising the work of the organisation.


  • Paid or unpaid leave during the Games. Employees may want to take annual leave to attend the Games or watch them on TV, or to avoid the worst of the traffic congestion, or because this is when they would be taking annual leave anyway.

    Because of the likely increased demand for time off between 27 July and 9 September, employers may need to develop or adapt an existing policy on annual leave, taking into account legal issues and HR implications. Employers should already be identifying employees who will want to take annual leave for whatever reason during this period. Where there is a statutory or contractual right for the employer to require employees to work during a specified period or for the employer to refuse requests for annual leave, such decisions should be based on operational needs, with a clear policy for situations where operational needs are not in themselves an issue. In relation to agreeing or refusing requests, such a policy might be as simple as 'first come first served', or may be based on other criteria provided these do not have the effect of discriminating unlawfully.

    Requests for unpaid leave should also be based on operational considerations or a clear policy.

    Organisations should also have procedures for dealing with "sickness" absence on the day of particularly significant events or the morning after big celebrations.

    An organisation's volunteers will be unlikely to have a contractual obligation to work when they have said they will, but they and/or the organisation may consider they have a moral obligation to do so. Volunteers should be encouraged to give the organisation as much notice as possible if they will not be able to, or will not want to, work for the organisation during some or all of the Games.


  • Distraction from work. Employers have to be aware that some staff will spend, or want to spend, a lot of time watching the Games on the organisation's computers or their own electronic devices, and that an outright ban may not be workable. If possible, employers should develop clear guidelines for what is and is not acceptable. Some employers may be willing to relax rules on personal use of the organisation's computers during lunch and rest breaks, or allow staff to adjust their lunch and break times so they can watch events of particular interest, or provide a television for staff who are not computer-based or do not have internet access to watch events during their breaks. For other workplaces, measures such as these may not be feasible.

    It should be clear that failure to carry out work as required, or failure to comply with the organisation's guidelines on whether and when the Games can be watched, will be dealt with as a performance issue.

    For volunteers it may be more difficult to enforce such requirements, but problems can be minimised by discussing the issues clearly with volunteers beforehand.


  • Disgruntlement. Staff who are not interested in the Games, or front-line staff who are not able to work from home or don't have internet access to watch at work even during their breaks, may become aggrieved at what they see as unfair treatment. Employers need to be aware of this and try to deal with it as sensitively as possible.
These issues are not unique to the Olympics — they come around regularly with royal events, world cups and other events that may attract, and therefore distract, large numbers of staff. But the Olympics and Paralympics are unique in lasting over periods of 17 and 12 days respectively, and at a time when many staff might want to take annual leave anyway to coincide with school holidays.

WORKERS MEMORIAL DAY

Updated 27/2/12. This information updates s.31.4.2.2 and adds a section on 'recognition days' at the end of s.31.8 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The government announced in January 2009 that the UK would officially recognise 28 April — which is also the international day of action for safety and health at work — as workers memorial day, to commemorate workers who have been killed, seriously injured or made ill through work. The first formally recognised day was 28 April 2010.

Despite a campaign to make workers memorial day a bank holiday, this has not happened. There is no right to time off for the day, but there may be local commemorations organised by individuals, employers, trade unions, community organisations and local authorities.

Information is available from the Trades Union Congress via tinyurl.com/33tav5u.


ANTI-SLAVERY DAY

Updated 2/12/12. This information adds a section on 'recognition days' at the end of s.31.8 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Anti-Slavery Day Act 2010, which received royal assent on 8 April 2010, provided for a date to be set to be observed each year as anti-slavery day. The first anti-slavery day was held on 18 October 2011 and the next will be 18 October 2013.

Like workers memorial day [see above] on 28 April and holocaust memorial day on 27 January it is not a bank holiday, but provides a focus to raise awareness of the millions of people who are victims of trafficking for sexual exploitation, child trafficking, trafficking for forced labour, and domestic servitude; and to draw attention to progress made to combat slavery, human trafficking and exploitation and what still needs to be done.

Information about participating organisations and events is at www.antislaveryday.com.

The Act is at www.opsi.gov.uk/acts/acts2010/ukpga_20100014_en_1.



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