UNFAIR DISMISSAL BY RELIGIOUS INSTITUTIONS
The case of Percy - v - Church of Scotland Board of National Mission in 2005 established that a minister could be an employee as well as an office holder and held that there should be no presumption against an intention to enter into a legally binding contract.
In a recent case (New Testament Church of God - v - S Stewart (2006) EAT 22.09.2006) it was held that a minister had a contract of employment and was entitled to bring a claim for unfair dismissal against the Church, which is a registered charity. On the evidence there was sufficient mutuality of obligation to create an employment contract.
See: http://www.employmentappeals.gov.uk/Public/Upload/06_0293FHCNDA.doc
The case opens the door to unfair dismissal claims by ministers against religious institutions of any denomination.
For further information, please contact:
JANE KLAUBER on 020 8394 6483 or klauberj@russell-cooke.co.uk
CARE STANDARDS LISTING SYSTEM BREACHES HUMAN RIGHTS
The Royal College of Nursing supported nurses working as care workers in their successful legal challenge to the "POVA List".
The list was established under the Care Standards Act 2000 for the listing of people who are unsuitable to work with vulnerable adults. The system involves provisional listing which prevents someone working. Those listed cannot appeal against their listing to the Care Standards Tribunal until they have been provisionally listed for 9 months.
The RCN argued that individuals were being prevented from earning a living and that the system infringed the European Convention on Human Rights. The Court agreed that while there was a need to protect vulnerable people, care workers needed an effective, quick way to challenge a provisional listing. The judge decided the existing system breaches article 6 of the convention (right to a fair trial) and article 8 (right to private and family life).
The case highlighted the difficulties faced by both employers who cannot employ provisionally listed persons, and by care workers themselves faced with a loss of livelihood and professional reputation.
The RCN is calling for the law to be changed.
For further information, please contact:
DAVID MEARS on 0208 394 6484 or mearsd@russell-cooke.co.uk
SLOW IMPLEMENTATION OF THE CHARITIES ACT
The provisional implementation timetable for the Charities Act makes clear that many of the substantive provisions may not come into effect until 2008 or 2009.
The sections to come into force in early 2007 will have little impact on most existing charities as the provisions centre on the role of the Charity Commission. These include the relaxation of the registration requirements for very small charities, and some useful but quite minor reforms such as:
- enabling the Commission to determine the membership of a charity,
- giving the Commission the ability to obtain a warrant to access premises,
- modifying restrictions on mortgages of charity land, and
- extending the ability to purchase Trustee Indemnity Insurance.
Later in 2007, useful provisions on mergers, audits and fundraising will be brought in.
We will have to wait until at least 2008 and 2009 for the new definition of charity, the public benefit test and the new Charitable Incorporated Organisation along with the Charity Tribunal and rules on remuneration of Trustees.
Exempt and Excepted charities are not likely to have to start coming within the new registration requirements until 2008 and the licensing for public collections is pushed on to 2009.
More details of implementation, which we fear may well slip further than is currently predicted, is available from the Office of the Third Sector.
http://www.cabinetoffice.gov.uk/third_sector/documents/charity_reform/implementation_plan.pdf
http://www.publications.parliament.uk/pa/pabills/200506/charities.htm
For further information, please contact:
JAMES SINCLAIR TAYLOR on 020 8394 6480 or taylorj@russell-cooke.co.uk
DOMAIN NAME DISPUTES – WWF
The World Intellectual Property Organisation (WIPO) arbitration panel recently ruled against the World Wildlife Fund in its attempt to gain control of the domain name wwf.com.
The decision highlights the problem of web-sites established using variants on well-known charity names as a means of generating ‘click through’ advertising revenue.
The wildlife charity had won the rights to the WWF initials from the World Wrestling Federation in 2001 but did not obtain a High Court Order for the transfer of all domain names which used the initials WWF. WWF argued that the individual who subsequently registered the domain did so “in bad faith” in order to earn revenue as visitors ‘clicked through’ in search of the charity’s site.
The WIPO panel found that some aspects of the site showed bad faith, such as the inclusion of wildlife related links, but concluded that the owner had originally acquired the name for a legitimate business purpose – the ‘Web Wrestling Forum’. The long delay between the registration of the site and the events complained of was a factor in the decision.
Amongst other things, the decision highlighted the need to act quickly in cases such as these.
For further information, please contact:
SHIVAJI SHIVA on 020 8394 6486 or shivas@russell-cooke.co.uk
COMPANIES ACT
The Companies Bill received Royal Assent on 8 November 2006. With 1300 sections it is the longest Companies Act ever.
It is expected to come into force in phases over the next two years. The next update will include a summary of the implications for charitable companies.
Meanwhile, the Act can be found here:
http://www.opsi.gov.uk/ACTS/acts2006/ukpga_20060046_en.pdf
For further information, please contact:
SHIVAJI SHIVA on 020 8394 6486 or shivas@russell-cooke.co.uk
GUIDANCE NOTES
AGE DISCRIMINATION:
Since 1 October 2006, it is no longer lawful to discriminate on grounds of age.
Jane Klauber’s summary of the key provisions of the new regulations can be found at:
http://www.russell-cooke.co.uk/serv_charities_articles.htm
GUIDE TO TRUSTEE DUTIES:
‘Reducing the risks’ is a new guide written by James Sinclair Taylor for the Governance Hub which provides unambiguous information on trustee liability. It dispels some of the myths around this issue, and offers practical advice on assessing and minimising the risks associated with trustee liability.
FORTHCOMING EVENTS:
SEMINAR: Charities as Tenants
Covers matters to be considered before entering into a lease; negotiating the lease terms; understanding the lease document. James McCallum discusses how to be a good tenant and avoid disputes, as well as how to get of the lease when necessary.
Wednesday 17 January, 8 Bedford Row, London WC1, 5.30 - 7.30 pm
SEMINAR: Reform of Company Law and Charity Law: Implications for Charities’ Constitutional Structures.
A review of the major changes brought in by the Charities Act and changes in company legislation including the choice of structure for an organisation, keeping the constitution up to date and incorporating modern developments.
Tuesday 6 February 2007, 8 Bedford Row, London WC1, 5.30 - 7.30 pm
CONFERENCE: Governance for the Arts - Setting the Tone for the 21st Century
We are holding a conference on legal and financial issues for arts organisations on 23 March 2007. The content was developed with support from the arts organisations we work with, including Arts & Business.
For more information, see: http://www.russell-cooke.co.uk/serv_charities_events.htm
OTHER EVENTS:
For a full list of forthcoming events see the Charity Team’s web-site at:
http://www.russell-cooke.co.uk/serv_charities_events.htm
The Charity Team
Russell-Cooke Solicitors, 2 Putney Hill,
Putney, LONDON
SW15 6AB
Tel: 020 8789 9111
www.russell-cooke.co.uk
This material does not give a full statement of the law. It is intended for guidance only, and is not a substitute for professional advice. No responsibility for loss occasioned as a result of any person acting or refraining from acting can be accepted by Russell-Cooke.
© Copyright: Russell-Cooke, December 2006
To subscribe to this monthly legal update please visit http://www.russell-cooke.co.uk/serv_charities_intro.htm and fill in the online request form, or send an email including your name and email to, charitylegalupdates@russell-cooke.co.uk
An archive of past updates can be found at http://www.russell-cooke.co.uk/serv_charities_updates.htm
If you would like to reproduce some or all of our updates in your own publication, contact Shivaji Shiva on 020 8394 6486 or e-mail on shivas@russell-cooke.co.uk
Wishing you a Merry Christmas and a Happy New Year