Pothecary Witham Weld Solicitors

Saturday 4th February 2012
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Agency Worker Developments Print
Monday, 07 March 2011 09:20

Britain’s businesses and agency workers have enjoyed the benefits of agency work arrangements for some years.  Agency workers, who find the flexibility of temporary work a benefit for personal or domestic reasons have no doubt assisted businesses with financial planning and navigation through the recent hard economic times.   Whether the Agency Workers Regulations 2010, which are intended to provide some workers with equal employment conditions from 1st October 2011, will affect the recruitment of agency workers, remains to be seen. 

The Government guidance on the impact of the Regulations, is due to be published in April 2011, but some key considerations for employers budgeting for the period following 1st October 2011, is that agency workers, will, after a qualifying period of 12 weeks, be entitled to no less favourable terms of employment than had they been hired directly by the end user organisation, in receipt of their services.  The Regulations carefully define who is to benefit from the intended equal treatment, but employers should be aware that the Regulations have been drafted to cover workers who are supplied by a temporary work agency, on a temporary work basis under the supervision of the end user organisation and with a contract in place between the worker and work agency; in other words, those workers providing services but who “remain on the books” of the agency. 

Organisations and workers operating under genuine outsourcing arrangements should not be affected by the Regulations, but it is expected that employment tribunals will be cautious about sham outsourcing or other contractual arrangements formed for or by end user organisations hoping to avoid their obligations to workers.  Those who legitimately provide services through their own limited company or are otherwise genuinely self-employed will not benefit from the Regulations. 

The equal treatment to which agency workers should benefit is limited to terms relating to working time, holiday, pay, access to facilities so that the workers can enjoy the same pay, rest breaks, hours, annual leave, bonus (with exceptions),  canteen, childcare, transport facilities as those provided to a comparable directly employed worker. 

Employers should exercise caution with terms since some, maternity pay for instance, are removed from the scope of the Regulations.  However, workers rights not to be subjected to detrimental treatment on the grounds of their sex, race, age, disability and other unlawful discrimination is unaffected. 

The Regulations develop the law in this area but do not simplify it.  Employers may find the recruitment of agency or temporary workers legally more complex, particularly when disputes arise.  To minimise risks, organisations should seek advice about their specific obligations before recruitment.

Should you have any questions please contact Maria Donnelly.
 
Charitable Incorporated Organisations (CIOs) likely to be available in early 2011 Print
Tuesday, 30 November 2010 13:07

Nick Hurd, the Minister for Civil Society, has indicated that the new legal entity the Charitable Incorporated Organisation will probably become available next year. In answer to a written parliamentary question the Minister said on 22nd November 2010 that the secondary legislation required to bring the new legal form into force would be put before Parliament "with a view to the first charitable incorporated organisations being established from spring 2011”.

Many of our clients are interested in securing limited liability for their trustees. Until the CIO comes into operation the only vehicle currently available is the limited company, which requires the charity to register and file accounts with both Companies House and the Charity Commission.

Some of the key differences between the CIO and other charitable structures are:

  • CIOs will only be required to submit accounts and annual returns to the Charity Commission;
  • A CIO will only come into existence once it has been registered with the Charity Commission;
  • There is no minimum income registration threshold; and
  • CIOs will have to comply with the other additional responsibilities outlined in the Charities Act 2006 and the CIO Regulations.

Our advice to clients for the moment is to wait and see. We still do not know exactly when the CIO will be available nor indeed whether what it offers is enough to warrant conversion. To clients wishing to obtain limited liability we still recommend the charitable company (limited by guarantee).

Should you have any questions please contact Arthur Byng Nelson or your usual contact in the Church and Charities Department.

30th November 2010

Pothecary Witham Weld
70 St George’s Square
Pimlico
London
SW1V 3RD
 
Potential for increase in claims of discrimination against charities Print
Thursday, 30 September 2010 12:45

The Equality Act 2010 (‘the Act’) comes into force on 1st October 2010. The passing of the Act, which aims to strengthen anti-discrimination laws, could result in a greater number of discrimination claims against charities.

In light of the Act, the Charity Commission’s recent summary guidance, and further to our article on the subject in our July 2010 newsletter, we suggest that charity trustees now review their charity’s governing document.

Charity trustees should consider the following questions:

1. Do my charity’s objects impose a restriction on who may benefit from the charity’s work? If the answer is no, no action is required.
2. If the answer is yes: Is the restriction defined by one of the following characteristics: age; disability; gender; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sexual orientation? If the answer is no, no action is required.
3. If the answer is yes (and it will be for many of our religious clients) the next question is: Is the restriction in place in order to prevent or compensate for a disadvantage linked to such a characteristic? In other words can the restriction be justified by the charity on the grounds that it is, through its work, ‘filling a gap in the market’ and providing for needs particular to that group? If the answer is yes, no action is required.
4. If the answer to that question is no, the next question is: Can, nevertheless, the restriction be justified as being a fair, balanced and reasonable way of carrying out a reasonable social policy objective? If the answer is yes, no action is required.

If the answer is no to either questions 3 or 4 then the charity should consider making changes to its governing document in order to comply with the Act.

If you wish to discuss the justifications in questions 3 and 4 or have any questions please contact Jerry Hawthorne by email or Gerald Kidd by email or by telephone on 0207 821 8211.

 

30th September 2010

Pothecary Witham Weld
70 St George’s Square
Pimlico
London
SW1V 3RD
 
Summary of the recent decision by the Charity Commission in Catholic Care (Diocese of Leeds) Print

The Charity Commission has concluded that Catholic Care (Diocese of Leeds) (“the Charity”) may not amend its governing document to allow only heterosexuals to adopt children via the Charity. 

The full reasons for the Charity Commission’s refusal of the Charity’s application may be found in its decision here. 

The Charity provides services to vulnerable adults and children, including an adoption service. The Charity applied to the Charity Commission under Section 64 of the Charities Act 1993 for consent to amend its objects with the effect of limiting its adoption services to heterosexual potential adoptive parents. 

On 17th March 2010 the High Court allowed an appeal from the Charity against a decision of the Charity Tribunal dated 1st June 2009 that had refused consent to the proposed change in objects. The High Court remitted the case back to the Charity Commission to consider the application in light of the High Court judgment of Mr Justice Briggs of 17th March 2010.       

As the Charity Commission is a public authority it is required to act in a way that is compatible with the rights set out in the European Convention on Human Rights (“ECHR”). In coming to its decision the Charity Commission considered Article 8 (the right to respect for private and family life) and Article 14 (the right to the enjoyment of Convention rights without discrimination on any ground) of the ECHR. It also considered the Equality Act (Sexual Orientation) Regulations 2007 which deal specifically with sexual orientation discrimination in relation to the provision of services (soon to be replaced by the Equality Act 2010).   

In support of its application the Charity stated that unless it was able lawfully to discriminate, its adoption service would have to close. This was because it would no longer be able to rely on essential funding from the Catholic Church.     

The Charity was under a duty to show “particularly convincing and weighty reasons” that the proposed discrimination was a “proportionate means of achieving a legitimate aim”.  The reasons put forward were that it had success in providing a last resort (it did not claim to be the last resort) for local authorities in housing “hard to place” children; it had a better rate of successful placements than local authorities; and other adoption agencies existed that would provide adoption services to homosexual prospective parents. 

The Charity Commission, upon a consideration of the evidence provided by local authorities, voluntary adoption agencies and an examination of European case law concerning sexual orientation and the provision of services, concluded that the Charity had not satisfied the requirement to provide “convincing and weighty reasons” for the proposed discrimination.  Particularly, the Commission considered that the attitudes of those providing part of the funding were not sufficient to justify the discrimination and noted the evidence from local authorities that, despite what the Charity had argued, the closure of the Charity’s adoption service would not result in children not being adopted. 

Catholic Care (Diocese of Leeds) was, as of 19th August 2010, considering “whether there is any other way in which the Charity can continue to support families seeking to adopt children in need”. 

For further information on this case and on how the decision might affect your organisation, please contact Jerry Hawthorne by email or Gerald Kidd by email or  telephone  020 7821 8211.

24th August 2010 

Pothecary Witham Weld
70 St George’s Square
Pimlico
London
SW1V 3RD
 
Director's Responsibilities - May be criminal to ignore! Print

The recent credit crunch has made the threat of insolvency a real one – bringing director’s responsibilities under the spotlight. Unsuspecting directors stand to lose much more than just their position in a company.

The Insolvency Act 1986 (“IA 86”) and the subordinate legislation that accompanies it (the Insolvency Rules 1986) is the basis of insolvency law in the UK.  Two further statutes - The Insolvency Act 2000 (“IA 2000”) and The Enterprise Act 2002 (“EA 2002”) - have brought about significant changes to this landscape, the first having altered the company voluntary arrangement (CVA) procedures in relation to small companies whilst the second, has had a huge impact on the position of secured and unsecured creditors and altered the administrative receivership regime. In an attempt to remove the stigma associated with insolvent companies, the EA 2002 has also introduced the concept of ‘rescue culture’. So what does this all mean for directors? 

 
Read more... [Director's Responsibilities - May be criminal to ignore!]
 
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