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.31: Working time, time off & leave
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 32:
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 32
RIGHTS OF PARENTS AND CARERS


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.


DISMISSAL ON GROUNDS OF PREGNANCY

Added 2/12/12. This information updates ss.28.3.1, 32,2 & 34.7.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3). .
Under the Equality Act 2010 and previously the Sex Discrimination Act 1975, less favourable treatment on the grounds of pregnancy and maternity leave is direct sex discrimination. Women have the right not to be subjected to any detriment for a reason due to their pregnancy, childbirth or maternity leave, and under the Employment Rights Act 1999, dismissal on the basis of pregnancy or childbirth is automatically unfair.

You would think that an independent school for girls would be aware of this. But when Rebecca Raven, a teacher at Howell's School in Denbigh, North Wales, applied for maternity leave in May 2011, to start at the end of November, the school told her a few days later that she would have to leave at the end of the summer term. She was then told she could apply for a part-time post starting in September, which she did. When she was not appointed she appealed and issued a grievance but there was no response from the school. Not surprisingly, the employment tribunal found she had been unfairly dismissed and discriminated against, and in September 2012 awarded her nearly £34,000 compensation.

Dr Philip Dixon, director of the Association of Teachers and Lecturers, said, "The supreme irony of a girls' school dismissing a teacher when she became pregnant almost beggars belief. This is an appalling example to give to pupils who are, hopefully, being educated to be young, independent women with fulfilling careers and lives."

For summaries and articles about cases, do a Google search on key words in the case name or content.


ADDITIONAL PATERNITY LEAVE AND PAY

Updated 11/3/12. This information updates ss.32.3.3 & 32.3.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Additional Paternity Leave Regulations 2010 gave a new right to additional paternity leave (birth) in relation to babies expected on or after 3 April 2011. To be eligible the person must be the child's father or the husband/civil partner of the mother, must have or expect to have the main responsibility (apart from any responsibility of the mother) for bringing up the child, and must have been entitled to ordinary paternity leave from the employer (see below). The term 'fathers' as used below therefore refers to anyone eligible for the new leave and pay, regardless of their gender or whether they are actually the father.

Where a couple who are married or civil partners are notified that they are matched with a child for adoption, and one person in the couple is entitled to statutory adoption leave, the other is entitled to additional paternity leave (adoption) if they were entitled to ordinary paternity leave.

  • Fathers/the second adopter in a couple continue to be entitled to ordinary paternity leave and statutory paternity pay [see above] for two weeks at or around the time of the birth or adoption, provided they have 26 weeks' continuous employment with the employer by the end of the 15th week before the expected week of childbirth or by the end of the week before being matched with a child for adoption, are still employed at the time of the leave, and have average earnings of at least the national insurance lower earning limit (£107 per week from 6 April 2012).


  • All mothers remain entitled to 52 weeks statutory maternity leave (SML). One person (either male or female) in an adopting couple remain entitled to 52 weeks statutory adoption leave (SAL) provided they have 26 weeks' continuous employment by the end of the week before being matched for adoption. But if the mother or adopter returns to work without taking their full 52 weeks leave, a father/adopter who was entitled to ordinary paternity leave becomes entitled to the mother's/adopter's remaining leave as additional paternity leave (birth) or additional paternity leave (adoption).


  • The maximum entitlement to additional paternity leave is six months. It cannot be taken until at least 20 weeks after the birth or placement for adoption, and cannot last beyond 12 months from the date of birth or placement.


  • A mother on statutory maternity leave or adoptive parent on statutory adoption leave is entitled to 39 weeks statutory maternity pay (SMP) or statutory adoption pay (SAP) is s/he has the necessary 26 weeks of continuous employment and average earnings above the national insurance lower earnings limit. But if the mother or adopter returns to work without using their full entitlement to SMP or SAP, the father/other adopter is entitled to the remainder as additional statutory paternity pay, paid at the same rate as SMP/SAP.


  • There are special rules for adoptions from overseas.


  • Parents must "self-certify" entitlement to additional paternity leave and pay by providing details of their eligibility to their employer. Employers and HM Revenue & Customs may, if they consider it necessary, carry out further checks on entitlement.


  • The right of all parents with at least one year's employment to 13 weeks unpaid parental leave before the child's fifth birthday (or 18th if the child is disabled) remains unchanged. So also does the right of parents with at least 26 weeks continuous employment and a child under 17 (or under 18 if the child is disabled) to request flexible working.


Guidance for employers is available from Business Link via tinyurl.com/4nw5vnq, for employees from Direct.gov via tinyurl.com/ygv5hku, and for both employers and employees at www.acas.gov.uk/index.aspx?articleid=1806.

The Additional Paternity Leave Regulations 2010 are at www.opsi.gov.uk/si/si2010/uksi_20101055_en_1.
The Additional Statutory Paternity Pay (General) Regulations 2010 are at www.opsi.gov.uk/si/si2010/uksi_20101056_en_1.

As part of its modern workplaces proposals, the government is proposing to introduce a new system of shared parental leave in 2015 [see below].

FLEXIBLE WORKING TO CARE FOR CHILDREN

Updated 4/8/12. This information updates s.32.5 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The statutory right to request flexible working arrangements to care for children was supposed to be extended on 6 April 2011 to apply to all children aged under 18. However the government announced on 18 March 2011 that it would repeal the extension, so the right continues to apply only if the child is under 17, or under 18 if the child receives disability living allowance. The right to request flexible working to care for children applies to parents, adopters and foster carers, and their partners.

Flexible working might include, for example, compressed hours, flexitime, home working, job sharing, teleworking, term-time working, shift working, staggered hours, or annualised hours. Once the employer and employee have agreed a flexible working arrangement, it is a permanent change to the contract of employment unless the agreement specifies otherwise.

The extension of the right to request would have removed the anomaly that if something happened so a child aged 17 started to need care but was not entitled to disability living allowance, the parent would not be entitled to request flexible working until the child turned 18 and the parent gained the right to request as the carer of an adult.

ACAS guidance and publications on flexible working are at www.acas.org.uk/index.aspx?articleid=1616.

The Flexible Working (Eligibility, Complaints and Remedies)(Amendment) Regulations 2010 are at www.legislation.gov.uk/uksi/2010/2991/made.
The Flexible Working (Eligibility, Complaints and Remedies)(Amendment)(Revocation) Regulations 2011 are at www.legislation.gov.uk/uksi/2011/989/made.

The right to request flexible working will be extended in 2014 to all employees who have 26 weeks continuous service, not just parents and carers as at present.


TIME OFF FOR DEPENDANTS

Added 11/3/12. This information updates s.32.8 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
A case in April 2011, Clarke v Credit Resource Solutions, illustrates the importance of understanding the statutory right of all employees, regardless of length of service, to take reasonable time off to deal with unexpected or sudden situations relating to dependants, or to make necessary longer-term arrangements for dealing with the situation. There is no right to pay for the time off unless the contract says it is paid, but it is unlawful to subject an employee to a detriment for exercising their right.

The case also illustrates the importance of employers having clear policies and ensuring managers and staff know about and understand them.

Mr and Mrs Clark both worked for Credit Resource Solutions. When their childcare arrangement unexpectedly broke down, Mrs Clarke went to work and said her husband would be late while he made alternative arrangements for the children.

Mr Clarke arrived half an hour late, and was told he had to sign a "late form" agreeing to an hour's deduction from his salary. He refused to sign, and when an hour's pay was deducted at the end of the month he became agitated when discussing it with the wages department. The finance manager then complained about his behaviour, whereupon Mr Clark was suspended and disciplinary proceedings started. At the disciplinary hearing he was told he would be dismissed for gross misconduct if he did not sign the late form, make a written apology and accept a final warning.

He refused, was dismissed, and went to tribunal. The tribunal agreed that he had been unfairly dismissed and had suffered the detriment of having an hour's pay deducted, being repeatedly pressured to sign the late form, and being dismissed.

The tribunal noted that the employer had a policy on time off for dependants, which actually allowed for discretionary payment for time off for dependants. But none of the witnesses had been aware of the policy when they had been pressuring Mr Clark to sign the form, and in any case the policy was not clear.

For summaries and articles about cases, do a Google search on key words in the case name or content.




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