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.32: Rights of parents & carers
Ch.33: Disciplinary matters, grievances & whistleblowing
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 34:
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 34
TERMINATION 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.


NO-FAULT DISMISSALS FOR MICRO EMPLOYERS

Updated 4/4/13. This information adds a new section between 34.2.4 & 34.2.5 in The Russell-Cooke Voluntary Sector Legal Handbook.
The government announced in June 2012 that its proposal for compensated no-fault dismissals for micro-employers with fewer than 10 employees would not be taken forward. Under this proposal, a micro-employer would have been able to dismiss an employee even if there was no fair reason for doing so and without going through a disciplinary and dismissal procedure, on payment of a set amount of compensation. Instead, the emphasis will be on settlement agreements, which can be used by all employers but which cannot be forced on the employee.


NO-FAULT DISMISSALS FOR MICRO-EMPLOYERS?

Updated 1/4/12. This information adds a new section between 34.2.4 & 34.2.5 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Following its "red tape challenge" on employment-related regulations in October 2011, the government launched on 15 March 2012 a call for evidence on the implications of compensated no-fault dismissals for micro-employers with fewer than 10 employees, and on whether existing dismissal processes and the ACAS code of practice on discipline and grievance might be simplified for all employers. The closing date for submissions is 8 June 2012.

Under the no-fault dismissal proposal, a micro-employer would be able to dismiss an employee even if there was no fair reason for doing so and without going through a disciplinary and dismissal procedure, on payment of a set amount of compensation.

An employer will still be able to dismiss without paying compensation if it has a fair reason and acts reasonably. If the employer dismisses in this way and the employee subsequently wins a claim of unfair dismissal, it is unclear whether compensation will be capped at the level of a no-fault dismissal.

Workers dismissed through compensated no-fault dismissal would not be able to bring an employment tribunal claim for unfair dismissal. However, they would still be able to bring claims where they believed discrimination on the grounds of sex, race, disability, sexual orientation, age, religion or belief had taken place or where they believed they had been dismissed for an automatically unfair reason, including whistleblowing or asserting a statutory right, such as asking to be paid the national minimum wage. More than half of unfair dismissal claims include a claim for an additional reason such as these, so no-fault dismissals will not give comfort to employers who are themselves at fault.

The call for evidence is on the Department for Business, Innovation and Skills website via tinyurl.com/7tzqzb5.


ABOLITION OF DEFAULT RETIREMENT AGE

Updated 18/4/12. This information updates ss.28.6.1 & 34.2.8 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The default retirement age of 65, the statutory retirement procedure and the right to request working beyond retirement age were abolished from 1 October 2011.

From that date, compulsory retirement is lawful only if such a requirement is a proportionate means of achieving a legitimate aim [see article below].

Under transitional arrangements which were in effect from 6 April 2011, employers could issue notification of compulsory retirement under the previous default retirement age procedure only until 5 April 2011, and only for employees who would be 65 or older on 30 September 2011.

Under the Employment Equality (Age) Regulations 2006 which were in effect until 30 September 2011, the maximum notice of retirement the employer could give was 12 months, and the last date on which the employee could exercise his/her right to request to work beyond retirement was three months before the employer's notice runs out. So if the employer gave 12 months' notice of retirement on 5 April 2011 (the last possible day), the employee had until 5 January 2012 to exercise his or her right to request to work beyond retirement (discounting the day on which notice was given). If the employer gave on 5 April 2011 six months' notice (the minimum that could be given), the employee's deadline for requesting would have been 5 October 2011.

In theory, an employer could agree a fixed or indefinite period of working beyond retirement if an employee made a request. But under the 2006 regulations if the employer agreed an extension of more than six months, it would have had to issue a fresh notice of intention to retire — which it could not do after 5 April 2011. So in practice, the last possible date for retirement of an employee under the existing law is 5 October 2012. This assumes the employee was given 12 months' notice of intention to retire on 5 April 2011 (the last day possible), taking him or her to 5 April 2012, and the employee requested and was given the maximum six month agreed extension which could be given without a fresh notice of intention to retire (going to 5 October 2012).

ACAS guidance on the transitional arrangements is at www.acas.gov.uk/index.aspx?articleid=3203.


EFFECTIVE DATE OF TERMINATION
FOR SUMMARY DISMISSAL BY POST


Added 7/11/10. This information updates s.34.8.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The qualifying period and the time limit for bringing unfair and wrongful dismissal claims are based on the effective date of termination (EDT), so this date has fundamental implications for such claims. Where dismissal is without notice for gross misconduct, the EDT is the date the dismissal is communicated to the employee.

A ruling in the Supreme Court on 13 October 2010 confirmed decisions by the employment appeal tribunal and court of appeal that if notice of summary dismissal is sent by post, the date it is communicated to the employee is when the employee actually receives and reads the letter, even if the letter says that dismissal is from the date the letter is written.

Following a disciplinary hearing about an employee's inappropriate behaviour at a private party, Gisda Cyf, a charity based in Wales, had told the employee to expect a letter on 30 November 2006 with its decision. The letter arrived on 30 November and was signed for by the employee's son, but the employee was away from 30 November to 3 December visiting her sister who had just had a baby, and she did not read the letter until 4 December. After going through the organisation's internal appeal procedure, she brought a tribunal claim on 2 March 2007 for unfair dismissal and sex discrimination.

If the EDT was 30 November, when the letter was signed for, she would have been out of time for her tribunal claim, but if the EDT was 4 December, the claim would be within the time legislation. The Supreme Court accepted that she had legitimate reasons for being away over that period and had not deliberately postponed reading the letter, and confirmed that her claim was valid. In its decision, the Court stated that on policy grounds it is important to interpret the time legislation in a manner that is favourable to the employee, and that strict contractual laws concerning termination of contracts should not replace the statutory framework.

Good practice when sending a dismissal notice by post is to give notice to the employee orally, so it is clear that he or she has received the notice, and/or to send it recorded delivery.

The decision in Gisda Cyf v Barratt is at www.bailii.org/uk/cases/UKSC/2010/41.html.


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.




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