EMPLOYMENT STATUS
The EAT has recently provided useful guidance on when tribunals may look beyond the terms of a contractual document to determine employment status.
The case of Ministry of Defence HQ Defence Dental Service v Kettle [2007] All ER (D) 301 (Jan) concerned a part-time orthodontist who held a series of annual contracts working three days a week. The advert for the post indicated that the post would be suitable for an independent contractor although it used employment terminology such as ‘salary’ and ‘job share’. Under the contract the consultant was responsible for her own tax, NI and negligence insurance and could provide substitutes to do the work. In fact the MoD arranged cover for her holidays and she worked as part of the MoD system. The EAT held that because her terms were not confined to the contract and taking into account the advert and the fact that she did not provide substitutes, she was an employee.
Whether a tribunal may have regard to factors outside the contractual document will depend on whether the parties intended it to contain all the terms of the contract. In this case the tribunal was entitled to look at the overall picture.
For further information, please contact:
JANE KLAUBER on
020 8394 6483 or Jane.Klauber@russell-cooke.co.uk
PROPERTY – DEFECTIVE PREMISES
The Court of Appeal has given an important judgment on the meaning of ‘defective premises’, and the duty owed by landlords if injury is caused on their premises, especially older buildings.
The courts are full of cases brought by people who have injured themselves on property belonging to others. More often than not the injured party argues that a landlord is not only negligent but also in breach of the Defective Premises Act 1972 (“the 1972 Act”). Section 4 of the 1972 Act states that in certain circumstances a landlord must take steps to ensure a visitor or tenant is ‘reasonably safe’ from any ‘relevant defects’.
The recent case of Alker v Collingwood could assist many organisations acting as landlords. Ms Alker was a tenant of Collingwood, and one day put her hand through the glass in the front door of her flat, suffering severe injury in the process. The glass was not strictly in disrepair (ie it was not broken), and the glass probably complied with building regulations when it was first used, but Ms Alker argued that it was still defective under the 1972 Act and therefore her landlord had breached its duty.
The Court of Appeal disagreed with Ms Alker. It held that the purpose of the 1972 Act was (amongst other things) a statutory embodiment of the landlord’s obligation to put or keep premises in repair, but it was not a statutory warranty that the premises are ‘reasonably safe’. The Court of Appeal referred to other helpful illustrations such as steep stairs, or a hidden step, which are often found in older buildings, by way of example of ‘problems’ that (if not in disrepair) are not ‘defects’.
For further information, please contact:
PAUL
GREATHOLDER on 020 7440 4824 or mailto:Paul.Greatholder@russell-cooke.co.uk
PARENTAL RIGHTS
The Working Families Act and the Maternity and Parental Leave and Paternity and Adoption Leave (amendment) Regulations 2006 came into force on 1 October 2006 affecting employees whose expected week of childbirth or date for adoption is on or after 1 April 2007.
The regulations:
- Remove the qualifying period for additional maternity leave;
- Extend paid maternity leave to 39 weeks from April 2007;
- Extend the notice an employee is required to give her employer of early return from four to eight weeks;
- Introduce a new provision entitling an employer to make reasonable contact with an employee while she is on maternity leave;
- Introduce the concept of “keeping in touch” days which enable those on maternity or paternity leave to work for up to 10 days during their statutory maternity pay period without losing entitlement to statutory maternity pay or ending their leave;
- Remove the exemption allowing an employer with five or fewer staff to avoid a finding of automatic unfair dismissal where a post is not held open for an employee returning from additional maternity leave;
- Mirror the above changes in relation to adoption leave.
It is anticipated that a new right to an additional period of 26 weeks’ paternity leave will be introduced by the Government in two years time alongside an extension of maternity pay from 39 weeks to 12 months. The purpose of this will be to enable fathers to take leave and receive statutory pay if the mother returns to work before the end of her maternity leave period. Consultation on the implementation of the scheme closes on 3 August 2007.
New flexible working regulations came into force on 6 April 2007 extending the right to request flexible working to the carers of adults providing that:-
- The employee must have been employed for at least 26 weeks; and
- The adult for whom they are caring must be over 18 and either a spouse or civil partner, near relative or living at the same address as the employee.
Near relatives includes parents, parents-in-law, adult children, children-in-law, adopted adult children, siblings (including those who are in-laws), uncles, aunts, grandparents and step-relatives.
The extension of maternity pay to 39 weeks does throw up some complications. The Social Security Act 1989 requires employers to maintain employment-related benefits during paid maternity, adoption and paternity leave. Employment-related benefits include pensions and benefits such as life assurance, private health insurance and probably childcare vouchers. Therefore as of April organisations are obliged to provide such benefits during part or all of additional maternity leave for as long as pay continues, where previously such obligations ceased at the end of the ordinary maternity leave period.
Although the Working Families Act does not require keeping in touch days to be paid, the maternity regulations specify that any work on any day constitutes a day’s work and questions arise as to whether failure to pay at the usual rate will constitute a breach of contract, a breach of the National Minimum Wage legislation and even a breach of the Equal Pay Act 1970. Alternatively, if the organisation pays for a KIT day during a period of unpaid maternity leave will the Social Security Act be triggered making pension contributions and other benefits due?
For further information, please contact:
JANE KLAUBER on
020 8394 6483 or Jane.Klauber@russell-cooke.co.uk
MERGERS
The merger of five Cumbria Councils for Voluntary Service has attracted the attention of the charity press.
See, for example: http://russellcookesolicitors.createsend.com/t/1/l/tyltu/l/www.thirdsector.co.uk/News/login/660359/
A full report, including an examination of the critical success factors and a summary of lessons learned is available on the NAVCA web-site, here:
For further information, please contact:
SHIVAJI SHIVA
on 020 8394 6486 or Shivaji.Shiva@russell-cooke.co.uk
CORRECTION: CONFLICTS OF INTEREST
Please note that the references to sections 75 – 77 and section 80 of the Companies Act 2006 in last month’s update were incorrect. The provisions relating to conflicts of interest are found in sections 175 –177 and sections 180 – 181.
ANNOUNCEMENT:
Please note that Russell-Cooke will be converting to a limited liability partnership (“LLP”) on 1 July 2007.
The change will not affect the service provided to clients who will continue to work with the same lawyers as at present.
If you have any queries about the conversion please contact the lawyer you usually deal with.
OTHER EVENTS:
For a full list of forthcoming events see the Charity Team’s web-site at:
http://russellcookesolicitors.createsend.com/t/1/l/mjlj/l/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
http://russellcookesolicitors.createsend.com/t/1/l/mjlj/l/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, June 2007
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