Legal Eagle

S asks:
What if a school is closed and staff have to stay at home with their children?

The Legal Eagle Responds
All employees have the right to unpaid ‘time off for dependants’, and this would also include a situation where a school is closed or a member of staff has to take time off to assist an elderly relative. There is no obligation to pay staff who are absent on this basis. The time off should be no longer than what is required to deal with the immediate emergency, generally no more than one or two days would be appropriate. Where the weather causes extended school closures, there is no definite rule that says parents have the ‘right’ to time off work to look after children. In dealing with such situations, employers must act reasonably.

Published on - Thu, 31 Jan 2013

F asks:
Is absence on account of adverse weather a disciplinary matter?

The Legal Eagle Responds
Most reasonable employers would count such absence normally as ‘authorised absence’, particularly if the employee has phoned in to inform the employer that he/she is unable to attend work.  Employers should also bear in mind that different employees may have different circumstances - perhaps a long commute or living in a particularly snowbound area. For this reason it is impossible to make a general rule about taking disciplinary action against those who do not get into work just because some employees do make it into work. Disciplinary action would only be appropriate if you have good reason to believe the employee is being untruthful about the snow being the reason for not attending work, or to reinforce the message that employees must notify you of their absence if they have not done so.

Published on - Thu, 31 Jan 2013

P asks:
If staff are unable to get into work are they entitled to be paid?

The Legal Eagle Responds
Generally no.  If your employees are unable to get themselves into work (for whatever reason) if the workplace is open then you are not legally obliged to pay them. However, you could consider alternatives, such as temporary home working or asking staff to take part of their paid holiday entitlement.

Published on - Thu, 31 Jan 2013

l am opening a new restaurant and want to make an application for a Premises Licence so that I can sell alcohol to diners. No-one in the vicinity objects but I understand that the law has recently changed widening the scope of those who can make representations. Is that true?

The Legal Eagle responds:
The Government has changed the law so that an objector no longer has to be someone who lives in or is involved in a business in the vicinity of the premises. The effect of this is that any person may make representations in relation to an application for the grant of a Premises Licence.

This inevitably opens the door to the prospect of representations from anywhere and anyone totally unconnected with and unaffected by the particular premises. The law provides that representations must relate to the licensing objectives and not be “frivolous or vexatious”. Unfortunately, it is not difficult for the well informed person to frame an objection so that it looks, on its face, to relate to one of the four licensing objectives namely: -

The prevention of crime and disorder;
Public safety;
The prevention of public nuisance;
The protection of children from harm

The Home Office Guidance states that the licensing authority should determine what is frivolous or vexatious on the basis of what might “ordinarily be considered to be vexatious or frivolous” which is not particularly helpful.

It then recommends that if there is any doubt about any aspect of the objection the benefit of the doubt should go in favour of the objector.  As a single representation is all that is necessary to trigger a hearing before the local authority licensing committee this could result in considerable and arguably unnecessary expense for applicants.

If you suspect that an objection is vexatious or frivolous it is worth consulting a solicitor at an early stage to see if a hearing can be avoided.

Published on - Thu, 25 Oct 2012

l have heard in the news that wheel clamping is to be banned. Is this correct and when does the ban come into effect?

The Legal Eagle responds:
A ban came into force on 1st October 2012 which applies to England and Wales (but not Northern Ireland or Scotland) and applies to private land only. Currently, individuals or businesses can clamp vehicles if they have a valid vehicle immobiliser licence from the Security Industry Authority (SIA) but once the ban comes into force it will be illegal to clamp, tow away or immobilise a vehicle parked on private land.

This will apply even if the clamper has no intention of charging a release fee for the clamp. Anyone breaking the new law will face criminal charges and a fine if convicted.
 

The ban will not apply to public land so the Police, Local Authorities, government agencies such as the DVLA, together with some other bodies acting in accordance with statutory or other powers will continue to have powers to clamp vehicles.

Published on - Thu, 25 Oct 2012

l am regularly receiving unsolicited text message to my mobile telephone marketing various things.  Is there anything I can do to stop this?

The Legal Eagle responds:
The Privacy & Electronic Communications Regulations 2003 cover the way in which organisations can send direct marketing by electronic means, which include by text message or SMS.

Assuming that your number is a personal and not a business one (which the regulations will not cover) organisations are not permitted to send you marketing text messages that you have not agreed to receive unless:

1. The sender has obtained your details through a sale or negotiations for a sale;

2. The messages are about similar products or services offered by the sender; and

3. You were given an opportunity to refuse the  texts  when  your  details  were

4. collected, and if you did not refuse then you must have been provided with a

5. simple way to opt out in respect of all the text messages you receive.

If you receive marketing by text message which you believe breaches the regulations you should write to or e-mail the organisation concerned and ask them to stop sending you any form of marketing or sending you unsolicited text messages. If it is unclear as to where the message comes from, or if it is from a company that you do not know anything about, it is advisable not to respond to the message because this may confirm to them that your number is live.

You can try to opt out from receiving further messages by texting “STOP” to the telephone number or five digit short code shown in the text message and see if the messages then stop. If you still receive messages from companies that you have asked to stop sending them to you then you should complain to the Information Commissioner’s Office who have powers to investigate the organisations responsible for sending unsolicited marketing communications.

Published on - Thu, 25 Oct 2012

I am considering  gender reassignment, will I get protection from discrimination?

The Legal Eagle responds:
It is unlawful to discriminate against workers because of gender reassignment. Employers should ensure they have policies in place which are designed to prevent discrimination.

Gender reassignment is a personal, social, and sometimes medical, process by which a person’s gender presentation (the way they appear to others) is changed. Anyone who proposes to, starts or has completed a process to change his or her gender is protected from discrimination under the Equality Act. An individual does not need to be undergoing medical supervision to be protected. So, for example, a woman who decides to live as a man without undergoing any medical procedures would be covered.

It is discrimination to treat transsexual people less favourably for being absent from work because they propose to undergo, are undergoing or have undergone gender reassignment than they would be treated if they were absent because they were ill or injured, or if they were absent for some other reason.

The Equality Act 2010 protects employees from discrimination in the following areas:
•direct discrimination: treating someone less favourably than other employees because of their gender reassignment, whether actual or perceived, or because they associate with someone who intends to undergo, is undergoing or has undergone gender reassignment
•indirect discrimination: can occur where there is a policy, practice or procedure that applies to all workers, but particularly disadvantages people who intend to undergo, are undergoing or have undergone gender reassignment. An example might be a policy or procedure that forces individuals to disclose their gender reassignment. Indirect discrimination can only be justified if it is a proportionate means of achieving a legitimate aim
•harassment: when unwanted conduct related to gender reassignment has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading or humiliating environment
•victimisation: unfair treatment of an employee who has made or supported a complaint about gender reassignment discrimination.
If you feel you’ve been discriminated against, you’ll be able to bring a claim to an Employment Tribunal. However, it’s best to talk to your employer first to try to sort out the matter informally, in order to minimise the negative effects on all parties involved.

Published on - Thu, 02 Aug 2012

How Long Must I Work Before I Can Complain Of Unfair Dismissall?

The Legal Eagle responds:
Before you can complain to an Employment Tribunal that you have been unfairly dismissal, currently the same employer must have continuously employed you for at least one continuous year.   There are plans from the government to increase this to two years.

Special rules govern what is “continuous employment”. Service is counted in weeks. Statutory maternity leave is included, as are other periods of absence due to pregnancy or child-birth. Periods of absence due to illness or injury, or due to lay-off, are included. If you finish one job and are re-employed by the same employer the following week, you preserve continuity.

Sometimes you can include periods of employment with another employer, e.g. if you move from a parent company to a subsidiary (or vice versa) without interruption; or there is a transfer of an undertaking, or a change in the members of the partnership which employees you. [You may need specialist advice to work out your period of continuous employment.

You do not need one year’s service at all if you were dismissed because:
•you were a union member or joined in your union’s activities
•you “asserted a statutory right”, e.g. complained that you had not be given a pay slip, or of an unlawful deduction from pay, or not getting the national minimum wage
•your dismissal related to health and safety, e.g. you were dismissed for your work as a safety representative, or because you took appropriate steps to protect yourself and others from a serious and imminent danger
•you were pregnant, or for a reason related to pregnancy/maternity, parental leave or dependant leave care
•of your work as a pension scheme trustee
•of your being or seeking election as an employee representative for consultation with your employer on redundancies or transfers of undertakings
•you refused to sign an opt out from the 48 hour maximum working week, or made a claim under the Working Time Regulations
•you “blew the whistle” on malpractice by making a qualifying disclosure to a responsible person under the (complex) Public Interest (Disclosure) Act
•you are a shop worker or betting worker who refused Sunday work
•you supported a union’s application to the Central Arbitration Committee for recognition
•you asked to be accompanied to a disciplinary or grievance hearing, or accompanied a worker to a hearing
•you took “protected” i.e. official industrial action
•you claimed adoption, parental, or paternity rights, or requested flexible working
•you claimed the right to equal treatment as a part-time employee with a full-time employee
•you claimed the right to equal treatment as a fixed-term employee with a permanent employee
•you claimed working families’ tax credit or disabled persons tax credit
If you are dismissed because of your race, gender, disability, religion/belief, or sexual orientation, you can bring a discrimination complaint to an Employment Tribunal regardless of your length of continuous service.

Published on - Thu, 02 Aug 2012

Can my employer make me work on bank holidays?

The Legal Eagle responds:
In some cases, yes. There is no general legal right to time off on bank holidays, though it is a common practice to give time off.
Many people have the right to bank holidays written into their contract with their employer.
But if you don’t have this, employers can require you to work on public holidays. Of course many jobs (such as the emergency services and the media) have always worked on bank holidays, but many other sectors (such as retail) now expect staff to work bank holidays too.

Published on - Thu, 02 Aug 2012

l run a small business and one of my customers is regularly late in making payment of my invoices. I do not want to have to take them to Court if I can avoid it but would like to claim interest from them. Can I do this?

The Legal Eagle responds:

If your terms and conditions of business provide for interest to be paid on overdue invoices then you should invoke that clause. If they do not then you will be entitled to both late payment interest and compensation under the Late Payment of Commercial Debts (Interest) Act 1998 provided that:-

•              You supply goods and services

•              Your buyer bought for business purposes (and not as a consumer)

•              The contract is not a consumer credit agreement

•              The contract between you and your customer does not contain provision for interest on overdue invoices (or any other substantial remedy for non-payment)

If you are entitled to late payment interest then you can claim interest at 8% over the Bank of England base rate (as at the previous 31st December or 30th June) and the interest will start to run on your invoices once the credit period expires. The credit period will be whatever credit period you have agreed with your customer, or if there is no agreed credit period then it will be 30 days. The compensation that you can claim, for each invoice not paid within the credit period, will depend upon the amount of the invoice and varies between £40 (for invoices of less than £1,000) up to £100 (for invoices over £10,000).

You don’t have to tell your customer that you will claim late payment interest or compensation if they fail to pay on time but you may wish to warn them in advance, perhaps in your invoices, that you will be doing so.

Published on - Mon, 16 Apr 2012

Winter weather can cause huge disruption to UK firms, our Legal Eagle Dan Valentine from Regents Solicitors deals with the most common questions.

P asks: If staff are unable to get into work are they entitled to be paid?

The Legal Eagle Responds: Generally no.  If your employees are unable to get themselves into work (for whatever reason) if the workplace is open then you are not legally obliged to pay them. However, you could consider alternatives, such as temporary home working or asking staff to take part of their paid holiday entitlement.


F asks: Is absence on account of adverse weather a disciplinary matter?

The Legal Eagle Responds: Most reasonable employers would count such absence normally as ‘authorised absence’, particularly if the employee has phoned in to inform the employer that he/she is unable to attend work.  Employers should also bear in mind that different employees may have different circumstances - perhaps a long commute or living in a particularly snowbound area. For this reason it is impossible to make a general rule about taking disciplinary action against those who do not get into work just because some employees do make it into work. Disciplinary action would only be appropriate if you have good reason to believe the employee is being untruthful about the snow being the reason for not attending work, or to reinforce the message that employees must notify you of their absence if they have not done so.


S asks: What if a school is closed and staff have to stay at home with their children?

The Legal Eagle Responds: All employees have the right to unpaid ‘time off for dependants’, and this would also include a situation where a school is closed or a member of staff has to take time off to assist an elderly relative. There is no obligation to pay staff who are absent on this basis. The time off should be no longer than what is required to deal with the immediate emergency, generally no more than one or two days would be appropriate. Where the weather causes extended school closures, there is no definite rule that says parents have the ‘right’ to time off work to look after children. In dealing with such situations, employers must act reasonably. 
 

M asks: Do I have to pay my staff if I cannot provide them with any work?

The Legal Eagle Responds: In general yes at the normal rate of pay.  Employees can only be ‘laid off’ without normal pay if there is a specific term in their contract allowing the employer to do this. When employees are laid off in this way, they are entitled to a statutory payment from the employer called a ‘Guarantee Payment’. The current rate is a maximum of £22.20 per day. Payment is limited to a maximum of five days in any period of three months. An employee must have completed one month’s continuous employment in order to qualify for a Guarantee Payment. On days on which a Guarantee Payment is not payable, employees may be able to claim Jobseekers’ Allowance and employees should contact their local Jobcentre to see if they qualify.


A asks: Can I make staff take holidays from their annual entitlement if they don’t turn up for work?

The Legal Eagle Responds: You could only insist on this if you have a condition in employees’ contracts of employment allowing you to do so.

H asks: Can I ask staff to work from home in bad weather?

The Legal Eagle Responds: In the very short term, it is likely to be reasonable to ask staff who can do some work from home to do so – for example if they have a laptop computer or telephone and are able to get some work done away from the office. Equally, if it is the employee who asks to work from home for a few days, this might be a reasonable request. In this way, employees would avoid losing pay for days they cannot get in to work. However, non home-workers are unlikely to have the infrastructure available to allow them to work efficiently or safely. Employers also need to consider the health, safety and security implications of having staff working at home, as well as supervision arrangements. Again, what is reasonable in the short term might not be appropriate for a longer-term arrangement.

B asks: Due to the weather, my business is unlikely to be busy and I don’t need my staff working full time, is there anything I can do?

The Legal Eagle Responds: It might be possible to agree that the employees take some holiday, but employers cannot insist on this unless the employee’s contract provides for this to happen so ion most cases the employee is entitled to be paid.  In some cases, an employer might be able to impose a temporary reduction of working hours (‘short-time working’)) but only provided there is a specific contractual right to do this.

Published on - Fri, 09 Mar 2012