MARCH 2007

 

WORK AND FAMILIES ACT 2006

The Work and Families Act 2006 (the “Act”) came into force in October 2006. The Act is implemented largely by the “Maternity and Parental Leave and the Paternity and Adoption Leave (Amendment) Regulations” (the “Regulations”). Significant changes have been made to the law relating to maternity rights, flexible working and adoption leave.

Additional Maternity Leave qualifying period has been removed. All pregnant employees (with an expected week of childbirth (EWC) on or after 1 April 2007) will qualify for 12 months’ maternity leave provided they give the correct notice to their employer. Maternity leave will continue to be divided into 26 weeks Ordinary Maternity Leave (OML) and 26 weeks AML, with differing rights for the mother during each period.

Notification of Return from Maternity Leave – a female employee is entitled to change her mind about the start date or amount of maternity leave to be taken provided she gives at least eight weeks’ notice (increased from 28 days) of the change to her employer.

Removal of Small Employer Exemption - small businesses will be subject to the same requirements as other employers to allow an employee to return to the same job.

Keeping in Touch Days - employees on maternity (or adoption) leave can (but are not obliged to) agree with their employer to return to work for up to ten days during their statutory maternity leave, without bringing the maternity leave to an end or losing statutory maternity pay. This also applies to women in receipt of maternity allowance. Employees who undertake, consider undertaking, or refuse to undertake such work will be protected from detriment or dismissal on those grounds.

Reasonable Contact - employers will now be able to make “reasonable contact” with employees while they are on maternity leave in order to discuss, for example, the employee’s return to work or to keep her informed of any important developments at the workplace.

Statutory Maternity Pay, Maternity Allowance and Statutory Adoption Pay - extension from 26 weeks to 39 weeks for women whose EWC (or date of adoption) falls on or after 1 April 2007. A further power exists within the Act for these periods to be increased further still, to 52 weeks. Also, the SMP period or maternity allowance period will, from 1 April 2007, start on any day of the week concurrently with the OML.

Adoption Leave and Pay - the qualifying period for additional adoption leave (AAL) has been removed so that adopters will be entitled to up to 26 weeks’ ordinary adoption leave (OAL) and up to 26 weeks’ AAL. Statutory Adoption Pay has also been extended from 26 weeks to 9 months where the date of adoption is on or after 1 April 2007. “Keeping in Touch” days will enable adopters to work for up to 10 days during their adoption leave period.

Paternity Leave – an extension of paternity leave up to 26 weeks’ is likely to be introduced by the government at a later date (some of which could be paid).

Flexible Working - from 6 April 2007, the entitlement will be extended so that carers of adults (ie those over the age of 18) will be able to apply for flexible working.

The Act is a significant piece of legislation that is designed to create family friendly provisions within the workplace. Employers, regardless of size, must ensure that they are able to implement the provisions successfully into their organisation and that they are able to cope with the loss of members of staff for lengthy periods of time.

For further information, please contact:
JANE KLAUBER on 020 8394 6483 or Jane.Klauber@russell-cooke.co.uk 

 

FURTHER WARNING FOR LANDLORDS?

In the widely reported case of Siddorn v Patel, a residential tenant sued her landlord for injuries she suffered when she climbed out of the window of her flat and began dancing on the roof of a neighbouring garage. The tenant fell through a glass skylight in the garage roof and suffered severe head injuries. Whilst the tenant was ultimately unsuccessful, the case is a reminder that landlords may be liable for a tenant’s accident even when (or perhaps because) they had no conception of a potential risk.

Under occupiers’ liability legislation, a landlord has to ensure that rented property is reasonably safe for tenants. It is widely recognised that that a landlord is not legally liable if a tenant uses the property irresponsibly, or if the ‘risk’ was so obvious that it would unnecessary to give a warning.

There are a number of points that a landlord must always bear in mind:

For further information, please contact:
PAUL GREATHOLDER on 020 7440 4824 or Paul.Greatholder@russell-cooke.co.uk  

 

DISABILITY DISCRIMINATION IN RESIDENTIAL PREMISES

In December 2006 the Court of Appeal held that the refusal of consent to the installation of a stair-lift did not constitute discrimination within section 22(3) of the Disability Discrimination Act 1995. The case of is one of the first cases to consider the application of disability discrimination law to premises.

Section 22 (3) of the Act makes it unlawful for a person managing any premises to discriminate against a disabled person occupying those premises in the way he permits that person to make use of any benefits or facilities.

An 81 year-old woman occupied a flat on the third floor of a block of flats under a long lease. She had mobility problems and could only get up and down the stairs with great difficulty. She applied for permission to install a stair-lift on the communal staircase. Her landlord refused permission citing the fact that other tenants voted against the proposal, aesthetics, cost of repair and inconvenience to the residents as a whole.

The issue for the court was whether this refusal amounted to disability discrimination. At first instance the court held that it did. The landlord appealed that decision arguing that it treated the tenant no differently from anyone else making a similar application.

The Court of Appeal overturned the decision of the lower court and ruled that the treatment of the tenant did not constitute discrimination as no one in the building was allowed to install a stair-lift.

The case gives some comfort to landlords but emphasises the uncertainty surrounding the application of the Disability Discrimination Act to premises.

Provisions added to the Disability Discrimination Act on 4 December 2006 impose a duty on landlords to make reasonable adjustments to premises to facilitate a disabled person’s use of their letting. However, this does not include the remove or alteration of a physical feature, such as a stair-lift.

Richmond Court (Swansea) Limited –v- Dorothy Williams [2006] EWCA Civ 1719

For further information, please contact:
JAMES MCCALLUM on 020 8394 6481 or James.McCallum@russell-cooke.co.uk

 

A CHARITY COMMISSION FOR NORTHERN IRELAND

The Charities (Northern Ireland) Order 2007 is expected to come into effect in April 2007, having been laid before Parliament in January. The Order will establish a Charity Commission for Northern Ireland, which will create and maintain an up-to-date register of charities. Charities based in England and Wales, or Scotland, that operate in Northern Ireland may have to register with the new Commission.

Although the purposes listed as charitable are similar to those for England and Wales, there are some additions specific to Northern Ireland. "The advancement of human rights, conflict resolution or reconciliation, or the promotion of religious or racial harmony", is to include the advancement of peace and good community relations. "The promotion of the efficiency of the armed forces or the emergency services" is not a charitable purpose under the Order. It does however recognise charitable purposes under existing law, and purposes analogous to those listed.

There is also a rigorous public benefit test to determine whether a charitable purpose actually produces a benefit to the public. This involves considering whether disadvantages are also incurred and if the purpose benefits one section of the public only, whether any condition on obtaining the benefit is unduly restrictive.

The new legislation also provides for the constitution of charitable incorporated organisations, a new legal entity for charities which the Charities Act 2006 introduces in England and Wales. This is designed to remove the need for charities wishing to become incorporated to register as a company and be subject to dual registration.

For further information, please contact:
SHIVAJI SHIVA on 020 8394 6486 or Shivaji.Shiva@russell-cooke.co.uk

 

SMOKING BAN

The Health Act 2006 and the Smoke-Free (Premises and Enforcement) Regulations 2006 made under the Act outlaw smoking in “substantially enclosed” areas including company cars if more than one person might use them. The provisions will come into force on 1 July 2007.

In addition to the penalties provided by the legislation employers who do not enforce the smoking ban may face grievances by employees dissatisfied with working in a smoky environment and constructive dismissal claims from staff arguing that requiring them to work in a smoky environment is a breach of trust and confidence. Employees who complain about an employer’s failure to comply with the legislation may have made a protected disclosure under the whistleblowing legislation.

For further information, please contact:
JANE KLAUBER on 020 8394 6483 or Jane.Klauber@russell-cooke.co.uk

 

TAX LIABILITIES FOR THE SELF-EMPLOYED

The risks of confusing self-employment with employment are twofold: the risk of unfair dismissal claims and the risk of tax liability for undeducted PAYE and national insurance.

In the past HM Revenue and Customs have given credit for tax actually paid by the contractor on a self-employed basis but in the recent case of Demibourne v HMRC [2005] STC(SCD) 667 where an individual who had paid tax on a self-employed basis for 10 years but was subsequently held to be held an employee, the Revenue recovered PAYE from the company but did not give any credit for tax previously paid by the employee. The case emphasises how costly it can be to treat workers as self-employed if it turns out they are in fact employed. While contracts with self-employed workers should require them to be responsible for their own tax and to indemnify the employer for any liability that arises, enforcement can be difficult in practice and it will always be safest to review the relationship in detail at the outset and to keep under review.

For further information, please contact:
JANE KLAUBER on 020 8394 6483 or Jane.Klauber@russell-cooke.co.uk

 

FORTHCOMING EVENTS:

SEMINAR: Fundraising and the Law

This seminar will introduce the main pitfalls associated with fundraising, including corporate promotions, contracting professional fundraisers, negotiating fundraising agreements and data protection.

Tuesday 24 April 2007, 8 Bedford Row, London WC1, 5.30 - 7.30 pm

Further information and a booking form can be found at:
www.russell-cooke.co.uk/serv_charities_events.htm

 

SEMINAR: Role of the Company Secretary

 A review of the company secretary’s duties and responsibilities and key procedures in the wider context of company and charity law.

Wednesday 16 May 2007, 8 Bedford Row, London WC1, 5.30 – 7.30 pm

Further information and a booking form can be found at:
www.russell-cooke.co.uk/serv_charities_events.htm

 

DIARY DATES:

Annual Trustee Conference

 Thursday 21 June, the Royal Society of Arts, London For further information please see our brochure at: www.russell-cooke.co.uk/downloads/Trustee_Conference_2007.pdf

Employment Conference

Thursday 28 June, Directory of Social Change, London NW1 2DP. Full details will be available shortly.

To register your interest, contact: Rhonda Chang on 020 8394 6493 or Rhonda.Chang@russell-cooke.co.uk

 

RECRUITMENT:

The Charity Team is seeking to recruit an Assistant Solicitor to join our busy team. For details, see: http://www.russell-cooke.co.uk/other_recruitment.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, January 2007

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