Diamond Jubilee – jubilation for holiday makers?

Next year will be a milestone for the Queen.  The first week of June 2012 will mark the 60th year of Queen Elizabeth’s reign as monarch.  She will be only the second British monarch to reign for that duration, Queen Victoria also having reached the 60 year milestone previously.  Lord Mandelson commented that this would be a “remarkable achievement” when announcing that an extra bank holiday would be granted to mark the celebration of the Diamond Jubilee on 5 June 2012.

Whilst the Diamond Jubilee will undoubtedly be a notable celebration across the country, employers and employees will likely have one burning question about whether or not the extra holiday is applicable to them.  We only have to cast our minds back to April 2011 when the same question was a hot topic surrounding the famous Royal Wedding.     

Bank holiday?

A bank holiday is one which is stipulated by legislation. The Banking and Financial Dealings Act 1971 governs bank holidays within the UK, and the Scotland Act 1998 assigns to the Scottish Ministers the responsibility for setting bank holidays. There are currently eight permanent bank holidays.

Public holiday?

Public holidays are controlled by individual local authorities. Generally, these are set in cooperation with local businesses and are aimed at preserving local history and traditions.  For example, in 2011 Dundee marked Victoria Day on 30th May and Arbroath marked St Tammas day on 26th July. These designated public holidays are merely recommendations: employers are under no obligation to close their businesses on these days.

Am I entitled to a holiday?

Employees are not automatically entitled to take a holiday on a bank or public holiday.  Rather, an employee must look to their contract of employment to establish the basis of their entitlement. An employee entitled to 20 days plus bank holidays would quite rightly expect the day off, as the Diamond Jubilee is indeed a bank holiday.

A more common example might be a contract entitling an employee to 24 days holiday in addition to six paid bank / public holidays. Such contracts usually go on to specify which six days will be given as holiday (Christmas Day, New Years Day and such like)! In that example, the employee therefore receives 30 days paid annual leave. As such, the employer would be compliant with the Working Time Regulations’ prescribed minimum of 28 days holiday.  The employee has no specific entitlement to take the Diamond Jubilee off as it is not one of the public holidays listed within the contract.

In relation to the Diamond Jubilee bank holiday, an employee in such a position would simply apply for a day’s holiday in the usual way, and an employer will then operate their usual procedures in deciding whether or not to grant the request. Employers must adopt a consistent approach to bank /public holidays. If employees have routinely been granted leave on such days in the past it may be that there is an established ‘custom and practice’ within the workplace. This could potentially allow employees to claim a holiday for the Diamond Jubilee.

The Practical Aspect

There is nothing intrinsically special about the Diamond Jubilee from an employment law perspective. Most employees are unlikely to be entitled to the day off, and will have to apply in the usual fashion if they wish to take the holiday.

If there is dubiety about an employee’s contractual entitlement, it may be that employers will choose to grant requests as a gesture of good will in order to maintain good employee relations. If this is done, employers should move quickly to tighten up their statement of terms and conditions in order to prevent a ‘custom and practice’ forming whereby employees expect to have an automatic entitlement to take future bank and public holidays off.

Jack Boyle
Solicitor
Employment Law

Charity Law: New decision on Private Schools

OSCR regulates charities in Scotland and one of its functions is to determine whether charities continue to meet the charity test.  As charitable status brings tax benefits, an important part of the charity test is that charities can demonstrate that their activities have public benefit.  

OSCR in Scotland and the Charities Commission in England and Wales have for some time been looking into whether private schools deserve charitable status.  OSCR has already issued directions to private schools such as St. Leonards in St.Andrews and Merchistons in Edinburgh that they need to widen their public benefit.  More directions have been issued south of the border.

In England and Wales, the Independent Schools Council, representing 1,260 schools, has taken the Charities Commissioner to court challenging the way that it applies the public benefit test.  A tribunal decision of 14 October 2011 has confirmed that there is too much emphasis on bursaries for poorer children and there is a need to examine the wider charitable work that schools are involved in.   

New guidance is expected shortly as to whether this approach will be followed in Scotland or whether the focus will remain on public access to school places.

Sarah Winter
Senior Solicitor

Premier League Football and Satellite Broadcasts – where are we now?

David and Goliath had nothing on Football Association Premier League Ltd.  [Sky Sports]  v.  Mrs Murphy.  This has gone all the way to the highest Court in Europe thanks to a brave pub landlady from Portsmouth.   

So what is the outcome for licensees?  We will have to wait to be sure.  The European Court of Justice has decided that it is contrary to EU law to sell Premier League matches on a country-by-country basis and any prohibition on the use of foreign decoder cards cannot be justified on the basis of protecting intellectual property rights.  However, the issue is far from straightforward.  For a start, the ECJ’s judgment has still to be interpreted by the English High Court, which had referred the matter to the ECJ for guidance.  This is likely to take some time.

On the subject of copyright, whilst the court held that live football matches are not works that can enjoy copyright protection, component parts of the overall broadcast – such as theme tunes, graphics and highlights of previous games – are protected.  As such, these add-ons cannot be shown without the consent of the Premier League.  If these protected elements are present, it is certainly not safe for you to broadcast Premier League matches other than through subscriptions with Sky or ESPN. 

The general consensus is that the Premier League will ultimately seek to sell its rights on a pan-European basis and so many question whether pubs will see a reduction in prices going forward.  What is clear is that the ramifications of the decision are likely to extend well beyond the world of football – films and TV programmes are generally sold on a territorial basis and the consequences could be huge. 

On a commercial level, the questions you need to ask yourself at present are:–

  1. Am I making money when I provide satellite sports? 

If the answer is “No”, as it often is, you need to then ask yourself:

  1. Could I be carrying out other activities or taking any action to better boost the bottom line?

In many cases, the answer is “Yes”.

There are a number of ways to make your pub work better – service and product training for staff to make your premises friendly and welcoming, selling high quality products, refreshing the premises with a paint job, linking with other businesses in your locality to provide business synergy.

An example to boost your business may be to invite the wine or whisky merchant to carry out tastings in your place.  Or, if you have no kitchen, perhaps you could link with a non-licensed cafe or carry out premises and let their customers eat inside – they will soon become your customers and they will   almost certainly buy a drink or two.  We Scots are generally too polite not to!

If you would like to talk to our business boosting team here at Blackadders, please contact:

Janet Hood, our Accredited Licensing Specialist, at janet.hood@blackadders.co.uk or by phone on 0771 888 2837 or 01382 342270; or

Kirk Dailly, a member of our IP/Technology Group, at kirk.dailly@blackadders.co.uk or by phone on 01382 342453.