No escape for Daddy!

From 1st October expectant fathers, partners and parents of a pregnant woman will be entitled to unpaid time off work to accompany the woman to up to 2 of her ante natal appointments of up to a maximum of 6 1/2 hours each.

The Department of Business, innovation & Skills have produced an employer guide containing a number of FAQs which you may find useful.

There will, of course, be certain formalities that will require to be complied with by the requesting employee or agency worker when making a request for time off. For example, providing confirmation that the relationship is a “qualifying relationship” and the time and date of the ante natal appointments. However, the biggest headache for employers is likely to be deciding when they can ‘safely’ refuse a request when it’s just not possible to allow time off. Requests can be refused when it is reasonable to do so but, unfortunately, there is no guidance on this (just as there is no guidance or case law as to when  it would be reasonable to refuse a pregnant woman time off to attend an ante natal appointment).

Get it wrong and unreasonably refuse time off, employees and agency workers can bring a claim in the Employment Tribunal. Compensation is twice the hourly rate paid for the time which would have been taken off had they been allowed to attend the appointment. Perhaps not the most costly claim, but one that will also incur legal costs, management time and possibly bad PR. Where compensation is likely to be more significant is where the employee or agency worker has suffered a detriment or has been dismissed (and that dismissal will be automatically unfair) because they have exercised or have sought to exercise their new right.

 To avoid any misunderstandings, update your company handbook including details of what you need your staff to do to book time off and circumstances when you may have to refuse a request and how this will be dealt with.

And on a related note, don’t forget that we can soon look forward to the introduction of Shared Parental Leave for employees whose expected week of childbirth is on or after 5 April 2015. Expectant mothers now reaching 12 weeks of pregnancy will be notifying their employers (if they haven’t already) of their pregnancy and they (or their partners) may start asking questions soon about this new scheme. Don’t get caught out and update your policies and procedures.

 If you want to discuss these matters further or to book your place at our Employment Law Seminar: Controlling Social media in the workplace, please contact Donna Reynolds.


Disagreements, disputes and separation

The day after the night before, it seems topical to be talking about not letting a disagreement grow into a dispute, and then separation – but, as we have seen, that’s all too easy. So, what can you do?

Disagreements are bound to happen from time to time, so rather than wait until they have happened and then try to sort things out, why not anticipate them and build in some sort of dispute resolution mechanism? If you don’t, when things morph into disputes, positions become more entrenched, making them harder – and much more expensive – to resolve.

You might think that I’m talking about countries or couples here – but I’m actually writing this with shareholder disputes in mind. There, if the disagreement becomes a dispute then (in addition to the complexity and cost) there is every chance that, because the focus of the people in dispute has been diverted, the business in question runs into difficulty and may fail. Then, even the winner of the dispute would be a loser.

If there’s a dispute, what do you do?

  • Just as in romantic entanglements, business relationships start off all “sweetness and light”. It’s hard at that time to listen to the “what if it goes wrong?” questions, but you really should – because it’s easiest to get a framework for dispute resolution sorted out when nothing is wrong.
  • If you can’t, or don’t want to, do it at the start, do it shortly thereafter. Your advisers really don’t want to say “I told you so” when you get in touch with the bad news some years later.
  • Using the matrimonial analogy, if things do go wrong you can divorce, reconcile or soldier on. What is best for you – and the business (because, if the business suffers, you suffer)?
  • And if it goes wrong, can it be fixed? Mediation of some sort can work – and do remember that companies can have directors who represent shareholders (without being shareholders themselves). That is one way of taking some of the tension out of things.

So, if you don’t remember anything else from this short note, please do have a think about putting dispute resolution measures in place before they are needed.

If you want to discuss these matters further, please contact John Clarke.

Preserving non-feudal burdens and negative servitudes

Land ownership reforms dating back a decade are about to become very relevant in the present.

The Scottish feudal system of land ownership was abolished on 28 November 2004. The effect of this, very broadly, was to modernise the system of land ownership, abolishing superiors, and to extinguish real burdens on land which were enforceable by superiors. Burdens being restrictions on land, such as a providing that the land can only be used for certain purposes, such as residential use. A grace period of 10 years was provided to allow other owners to preserve their rights where their property benefited from existing burdens by legal implication only ie they were not documented in the title deeds. This grace period ends on 28 November 2014 and on this date a large number of existing title obligations may disappear. Crucially these burdens which can be preserved prior to November 28 are not simply those which benefit superiors, rather, they may affect any landowner. A negative servitude is a right protecting the right of view of a property enforceable against a neighbouring property and these will cease to be enforceable unless they are preserved by the registration of a preservation notice.

Real burdens can be broadly divided into three groups, being:

1. Those which were enforceable by a superior only and which were extinguished in 2004 unless they were preserved by a statutory notice prior to that date.

2. Certain burdens which were automatically preserved beyond 2014. These include certain maintenance obligations and particular ones which relate to a common scheme.

3. Those burdens which benefit land by implication only and these are the ones which will be extinguished in November unless preserved. These are difficult to identify by their very nature as they are unwritten.

This latter category of implied rights will be brought to an end on 28 November 2014 unless they are specifically preserved. Implied rights will always affect at least two properties with one being benefited and the other being the burdened property..

It isn’t always clear whether your property is affected but if there have been sales of part and there have been conditions imposed then it is possible that you may be affected. Unless these title obligations are identified and registered in the Land Register by 28 November then they will no longer exist past this date. On a practical level take the time to examine your property, consider whether a change of use or development of a neighbouring area could have a detrimental impact on your property and whether this area may have been sold off from your property in the past. In advance of this date our advice would be that you should take the time to examine your property and where you may be affected you instruct an examination of your titles to determine whether you are or not.

Negligence in this matter could well land you with some unexpected problems – the time to act is now.

If you want to discuss these matters further, please contact Caroline Maher or Michael Dewar.


Losing rights in property you never knew you had…

Even Sherlock Holmes himself might be slightly baffled by a planned change in the law.

It all began late one evening in winter 2003 when members of the Scottish Parliament decided to make detailed changes to property rights.  We’ve set these out in detail in this link but, to keep this elementary, the changes are:

  • owners of land have all sorts of rights over neighbouring or nearby land
  • some of these are rights to use neighbouring land – for example, a right of access.  This type of right is unaffected
  • some are rights either to restrict a neighbour’s use of land or compel him to do something – for example, a restriction on use or not to build
  • the Scottish Parliament wants to abolish only this second type of right but with a twist…
  • this second type of right can be contained either in the owner’s title deeds or in the neighbour’s title deeds
  • only the second type of right contained in the neighbour’s title deeds will be abolished
  • the changes take place on 28 November of this year

We told you that it was slightly baffling!  But it gets worse and this is where the services of Mr Holmes might be required.

Owners can keep all of their property rights if they register notices in the property registers before 28 November 2014.  Lawyers can readily register these notices.

The tricky part, though, is this – how can a property owner know if there are rights worth protecting if their own title deeds say nothing about these rights in the first place?  The simple answer is that it won’t be easy.  Property owners can, however, do their own detective work to look for suitable clues:

  1. they may know that neighbouring land or a building had previously formed part of their property
  2. the neighbouring owner may have in the past asked for their permission to make changes on the neighbouring property
  3. in a built-up area, there may be no obvious reason why land directly next to a property has not been built on

If you think these rights might exist, we’re happy to check your title deeds and register any protective notices.  Whatever property owners should do, they should think of checking now, well ahead of November’s deadline.  The game is afoot!

If you want to discuss these matters further, please contact Caroline Maher or Michael Dewar.


Your invitation to our Employment Law Seminar: Controlling Social Media in the Workplace

The massive growth in social media has offered forward thinking employers with marketing, recruitment and employee engagement  opportunities. However, it has also presented employers with various challenges to deal with including breaches of confidentiality, breaches of discrimination law, harassment, loss of productivity and damage to reputation.

Please join us for our free Employment Law Seminar on social media issues for employers. It is for anyone who has to manage HR issues and will provide an excellent opportunity to meet, share ideas and discuss with others from a variety of industries the employment issues that arise in managing employees’ professional and personal use of social media. 

We are delighted to be joined by Jacqui Duncan, Organisational  Development Adviser with the Care Inspectorate. With a significant role in providing assurance and protection for people who use services, their families and carers and the wider public, it is vital that the Care Inspectorate takes every possible step to develop and deliver effective key policies that ensure it can meet its statutory requirements and protect its reputation and confidentiality. Jacqui is part of a team responsible for the development and delivery of these policies and she will talk about the Care Inspectorate’s  Code of Conduct and Guidance on social media and  policy development more generally.

Lunch is provided.

To book your free place please contact Donna Reynolds: or 0845 2233001


Holiday pay: What should you be paying?

As employers are all too aware employment law is ever evolving. In recent months there have been significant developments in case law in relation to what exactly holiday pay should include. Unfortunately, the matter is far from settled as key cases are still to be heard. However, we have been advised of trade unions, ‘no-win, no-fee’ solicitors and Acas Conciliators advising workers that there is a potential for claim in relation to unpaid holiday pay so, the advice is that all employers should now apply their minds to this murky subject as their workers may well be.

Workers are entitled to a week’s pay for a week’s leave with all workers having an entitlement to 5.6 weeks’ holiday per year (or the pro-rata equivalent). A week’s pay is calculated with reference to the (complicated) “week’s pay” rules in the Employment Rights Act 1996. The starting point is a worker’s working hours:

Recent European Court of Justice case law suggests that the UK has got it wrong on two counts:

  1. Guaranteed overtime counts as normal working hours but voluntary or discretionary overtime does not.
  2. Payments such as commission that vary according to something other than the amount of work done (i.e. a reward for success and not effort) are not taken into account when calculating holiday pay.

Article 7 of the Working Time Directive states that workers must have the right to paid annual leave. Whilst it has been left to national legislation to determine how it should be calculated – our week’s pay rules –  principles and concepts are continually emerging from cases decided by the ECJ. The decisions of the ECJ in Williams and others v British Airways plc and more recently in Lock v British Gas Trading Ltd and Others have led to more questions than answers about the way the Working Time Regulations approach the calculation of holiday pay. A number of cases have been brought in the employment tribunals with workers seeking the inclusion of commission, overtime, attendance bonuses and travel allowances in holiday pay calculations, and Appeals are now pending before the Employment Appeal Tribunal  in many of those cases with other cases effectively on hold pending the outcome.

So what should now be included in holiday pay? The ECJ’s view is that the practice, where an employee receives variable payments in addition to a basic salary, of an employer calculating holiday pay based only on basic pay will deter workers from taking holidays because they are likely to suffer financial hardship. The ECJ has held:

  1. Holiday pay entitlement should not be limited to basic salary but must correspond to “normal remuneration” meaning that remuneration linked to contractual performance should form part of holiday pay.
  2. In practice, this means:

    • Commission – this must be included because it’s intrinsically linked
    • Overtime pay – this must be included because it’s intrinsically linked, but this is under appeal
    • Allowances – if exclusively intended to cover “occasional ancillary costs” e.g. travel or subsistence expenses, are not included. If it’s more in the nature of a bonus for performing certain tasks or performing them under certain conditions or at certain times, they are included, but this is under appeal.
    • Productivity, attendance or performance bonuses – included, because the test is whether the payment is “intrinsically linked” to performance of tasks by the worker under the contract, not whether it is “exclusively” so. This has the potential effect of bringing bonuses that depend on team rather than individual performance within the scope of holiday pay. This is under appeal.
    • Annual discretionary (and other) bonuses – this is a grey area, for example, should a Christmas bonus paid equally to all staff be classed as “intrinsically linked”? Discretionary bonuses of other sorts are often linked to performance in some way and so it’s not hard to imagine some creative arguments being made as to why they should be included.
    • Stand-by/emergency call-out payments – included, but under appeal
    • Acting up pay – included, but under appeal.
  1. Employers are accustomed to a 12 week reference period, however, it may now not be long enough as the principal is now that it must reflect normal working. Tribunals may have to approach this issue on a case-by-case basis because it is arguable that if commission or overtime payments fluctuate widely over the year, 12 weeks is not a representative normal period. With regards to bonus, it is thought that 12 months might be more appropriate.
  2. We are concerned with the 4 weeks’ holiday entitlement under the Working Time Directive and not the 5.6 weeks’ entitlement under the Working Time Regulations. However, the ECJ held the worker could choose which 4 weeks it wished to include any commission or other payments. This would give workers’ huge potential to maximise their holiday pay.

Lock has been referred back to Leicester Employment Tribunal to consider how holiday pay should be calculated in these circumstances and we will have to await the outcome for further guidance. However, it is highly likely that the case will prompt claims. The advice is not to take hasty decisions, but to invest some time in planning and preparation to ensure you’ve considered all available options including:

  • Creating a fighting fund to settle claims if, and when, they arise.
  • Back pay commission, overtime and other payments. It doesn’t prevent a claim but it would be pointless for a worker to bring one because the claim would have no value.
  • Implementing a holiday freeze for 3 months wiping out the worker’s series of deductions (provided workers are paid correctly going forward)
  • Imposing a correctly paid compulsory holiday and breaking the series of unlawful deductions.

These decisions are not to be taken lightly, for example, they may have the result of putting your workers on notice that there is a potential claim.

Going forward, the practical issue to deal with is ensuring that the pay for each worker is accurate for every month in which holiday is taken. Employers may wish to consider an annual correcting payment at the end of the pay year (or on termination). This way, if the worker knows that their pay is going to be correctly adjusted it is less likely there will be a claim.

If you would like to discuss this further please contact Donna Reynolds.

Forthcoming Employment Law Seminar: Controlling Social Media in the Workplace. Click here for more details and to book your place.