Everyone is talking about SCIOs!

SCIOs or Scottish Charitable Incorporated Organisations are a new type of vehicle specially designed for charities.  SCIOs are like charitable companies in some ways but, unlike companies, they are regulated only by the Office of the Scottish Charities Regulator (OSCR) and not Companies House.

From 1 January 2012, charitable companies will be able to convert to SCIO joining the various new charities on the register which have had the right to incorporate as SCIOs since 1 April 2011.  When we last checked, there were 58 SCIOs registered at OSCR, ranging from citizen’s advice bureaus to after school care centres to neighbourhood watch groups.  So what makes the SCIO an attractive vehicle to new and existing charities? 

For new charities, the SCIO vehicle, like the charitable company, brings separate legal personality for the organisation.  That means that the charity can hold property, enter into contracts, sue, be sued and employ staff in its own name rather than in the name of its committee members or trustees.  Existing companies may choose to convert to SCIO to be subject to the lighter regulatory regime.  However, all charities are different and it is important for each charity or proposed charity to consider its individual circumstances in order to decide upon the most appropriate legal status.

Something worth noting is that a SCIO’s members are under a duty to try to ensure that the organisation acts in a manner which is consistent with its purposes.  Whilst company directors and charity trustees are under similar duties to their organisations, their ordinary members are not.  An active membership may be a reason to choose to incorporate as a SCIO.  Other reasons include where the organisation has contractual or employment commitments and where the charity trustees require protection from personal liability. 

If you have any questions or would like further advice on SCIOs, please contact Sarah Winter in the Charities Team on 01382 229222.

Sarah Winter
Senior Solicitor – Corporate & Commercial

All I want for Christmas is…a Trade Mark!!

With the purveyors of doom queuing up to tell us how bad everything is, you’d be forgiven for thinking that nobody is doing anything positive (though I see that Google has patented technology for a driverless car, perhaps paving the way for future generations of Christmas partygoers to find an alternative way home). Times are undoubtedly tough for everyone, but it is important to recognise that many businesses continue to innovate and invest in their assets. We have been encouraged by the number of young businesses looking to protect and exploit their brands despite challenging economic conditions. In particular, we have seen a marked increase in the number of clients applying to register trade marks as they seek to gain a competitive edge. A registered trade mark affords its owner the exclusive right to use that mark and can serve as a key tool in the creation of a recognisable and marketable brand. It demonstrates that you mean business to customers and competitors alike. Any sign capable of distinguishing the goods or services of one business from those of another can potentially be registered as a trade mark – this includes business names, product names, logos and slogans. Trade marks are assets that can be licensed, franchised or sold. As such, they can play a major role in the commercial strategy of a business. If you are wondering whether your business could be doing more to protect and exploit its brand, why not take professional advice and find out more? I’m sure that Google did in the late nineties…

Kirk Dailly
Associate IP/Technology Group

Holidays on the shore or offshore

In accordance with the Working Time Regulations 1998 (WTR), workers are entitled to 5.6 weeks’ paid annual leave in each leave year.  This is relatively straightforward concept in relation to a typical 9 till 5 worker who works 5 days each week throughout the whole year, with a few weeks taken from that commitment for annual holidays.  However, this is by no means a uniform working pattern.  What about workers with a less regular working pattern?  The underlying principle behind the European legislation which the WTR implements is that in the interests of health and safety, workers should be given time off to rest.

A recent decision of the Supreme Court has offered some guidance on the issue of holiday entitlement for workers with atypical working patterns.  This case related to a group of offshore workers in the oil and gas industry.  The workers generally followed a pattern of working two weeks offshore (where they would carry out twelve hour shifts followed by a twelve hour rest) and two weeks onshore when they were not contractually obliged to carry out work but might attend occasional appraisals or training.

The workers raised claims that they had been denied their statutory entitlement to 4 weeks’ annual leave (the cases were raised before the statutory entitlement increased to 5.6 weeks). The employer resisted the claims on the basis that the 26 or more weeks the claimants spent onshore on “field breaks” was more than sufficient to encompass their statutory annual leave entitlement.  The workers argued that the proper interpretation of ‘annual leave’ meant release from what would have been an obligation to work, and that as a result they ought to have been permitted to take annual leave during periods when they would have been offshore.

The initial claims were successful at the Employment Tribunal.  However, these were overturned by the Employment Appeal Tribunal (EAT). The Court of Session did not interfere with the decision of the EAT, prompting the workers to appeal the case further to the Supreme Court.  The Supreme Court agreed with the employers and refused the appeals.  The reasoning given by Lord Hope was that under the European legislation providing for entitlement to rest periods, ‘rest period’ simply means any period which is not working time, irrespective of where the worker is and what he is doing.  Accordingly, the rest periods which were onshore field breaks fell within this category and the workers were not entitled to take their annual leave entitlement as time off from offshore work. 

The decision has practical implications for other workers with irregular patterns of work.  For example, teachers who are allowed holidays which match the school holidays could not insist on having part of their annual leave during term time (unless their contract of employment provided for additional periods of contractual annual leave).

Jack Boyle
Employment Solicitor