The Royal Wedding: Don’t bank on a holiday

All across the country on 23 November 2010 Royalists and holiday-lovers rejoiced at the Cabinet’s announcement that the occasion of Prince William and Kate Middleton’s marriage on 29 April 2011 would be marked with a public holiday.

Employers and financiers alike will be asking: do we have to? The answer relies on an understanding of how public holidays work within the law. There are a number of common misconceptions which muddy the waters, particularly the confusion of what a public holiday actually is.

What is a bank holiday?

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

What is a 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, thus this year Dundee marks Victoria Day on 30th May, Arbroath marks St Tammas day on 26th July, and the rest of the world keeps on turning. 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?

No employee is entitled to take a holiday on a bank or public holiday as a matter of course. Rather, an employee must look to their contract of employment to establish what their position is. An employee entitled to 20 days plus bank holidays would quite rightly expect the day off, as the Royal Wedding is indeed a bank holiday.

More commonly, a contract might entitle an employee to e.g. 24 days holiday as well as six paid bank / public holidays. Such contracts usually go on to list which six days will be given as holiday e.g. Christmas Day, New Years Day. An employee of that firm therefore receives 30 days of paid annual leave. As such, the employer would be compliant with the Working Time Regulations’ prescribed minimum of 28 days holiday and the employee has no special entitlement to take the Royal Wedding off as it is not one of the public holidays listed in the contract.

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 standards 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 holiday for the Royal Wedding.

The Practical Aspect

There is nothing intrinsically special about the Royal Wedding from an employment law point of view. 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.

Wise employers should look to clarify any such grey areas in a timely fashion, as any problems experienced with the Royal Wedding will likely resurface next year, when a further public holiday takes place on 5th of June 2012 to mark the Queen’s Diamond Jubilee.

Stewart Dunbar
Trainee Solicitor
Employment Law

Liquor licensing specialist joins team

We are pleased to announce that Janet Hood has been appointed as a consultant solicitor to work within our business division.

Janet, the only liquor licensing accredited specialist in Tayside and Angus has extensive experience working with both licensees and local authorities and is an active member of a number of Scottish Executive committees concerning alcohol. She is Council and Board member of the Law Society of Scotland and is a participant on the Law Society of Scotland’s Licensing Law Reform Committee. Janet is a board member of the Scottish Tourism Forum, a council member of the British Institute of Innkeepers and is a member of the Scottish Trade Licensing Association.

She has a remit to develop Blackadders’ offering in the hospitality, licensing and tourism sector through positive engagement with our existing clients and by identifying new clients amongst her many and varied contacts in the industry.

David Milne, partner and head of the business division says: “Licensing law is a bureaucratic minefield and we want to ensure that our clients maximize their business potential and adopt best practice. I am delighted that Janet has agreed to work with us; she is a very experienced and well-respected lawyer who will add depth to an already high performing team. It is a very exciting opportunity for Blackadders and advances our strategy of being the leading East Coast firm for people and for business.”

Renewable Energy Continues to Grow

Several newspapers reported this week that Mitsubishi has taken over the Scottish renewable energy technology company Artemis Intelligent Power. The Japanese company has said that the move will lead to an investment of £100m over 5 years and an additional 200 green jobs.

Artemis, described by the Carbon Trust as “the leading light in the UK’s clean tech revolution” has developed new controllable hydraulic pumps and motors. Artemis Wind is developing the technology to be used in wind turbine transmissions.

Managing Director of Artemis Win Rampen said: “This marks a huge step forward for the development of our game-changing technology. Drawing on the breadth and depth of Mitsubishi’s expertise and skills, AIP look forward to accelerating our research and development work with a view to our technology being used in turbines in UK and European waters by 2015.

A new ‘Centre for Alternative Technology’ is also planned by Mitsubishi and has been welcomed by the Scottish government. First Minister Alex Salmond said: “As well as delivering new jobs and investment, over the long-term this announcement could result of the creation of a major offshore wind turbine manufacturing site in Scotland.

The good news is that renewable energy continues its rapid growth in Scotland, which is an area of activity where Blackadders are increasingly being instructed. Please contact me at shaun.mackintosh@blackadders.co.uk or call me on 01382 342110 for any advice or information on renewable energy and find out how we can help you.

Copyright – where are we going now?

Few areas of law divide opinion quite like the law of copyright.

Copyright protects the tangible expression of ideas across various categories of work.  The principal purpose of copyright law is to ensure that the creators of original works are rewarded for their endeavours.  However, as is well documented, the digital age has presented the system with a whole raft of problems and not everyone can agree upon how they should be solved.

Scroll to the comments section of any online article on the subject and you are likely to find furious debate raging between those who champion the rights of the creative industries and others who believe in the free access and distribution of content.  The UK has long grappled to balance these competing interests but has yet to devise a legal framework which satisfies everyone or, arguably, anyone.

Recent Developments

The Digital Economy Act 2010 (DEA) was pushed through in the dying days of the Labour government and introduced various measures designed to counter online copyright infringement.  These included imposing obligations on internet service providers (ISPs), such as BT and Talk Talk, to take action against suspected infringers and even disconnect them altogether.  However, last month the High Court ordered a judicial review of the DEA in order to determine whether it is legal and justifiable.  This could ultimately result in aspects of the DEA being amended or even scrapped altogether.

Only days before the decision to carry out a judicial review was taken, Prime Minister David Cameron announced that he had ordered an independent review of the UK’s intellectual property laws in order to determine whether they are “fit for the internet age”.  Mr Cameron pointed to the “fair-use” copyright exceptions that exist in the US, opining that they encourage creative innovation and warning that the founders of Google had advised that they could not have formed their business in Britain.

Although the exceptions to copyright infringement in the UK are certainly more rigid than those enjoyed by our friends across the Pond, it is worth bearing in mind that the manner in which the courts in each country have interpreted the relevant legislation over the years has not been dramatically different.  Moreover, the results of a consultation conducted by the Intellectual Property Office (IPO) as recently as 2009 indicate that opinions on copyright exceptions remain somewhat divergent.  As such, some question the value of yet another review in this area.

The Future

So what exactly does the future hold for copyright law in the UK?  The short answer is that nobody really knows.  My view is that the law is likely to be tinkered with further in the coming years, but exactly what changes will be made remains unclear.  As ever, the acid test will be how the courts interpret any new legislation.

What changes would you like to see made to the law of copyright?  We’d be delighted to hear from you.

If you require advice on the subject of copyright or any other aspect of intellectual property law, please contact me at kirk.dailly@blackadders.co.uk or on 01382 342453.

Employment Law Q & A

Following on from last month’s Employment Law Seminar, some delegates asked us further questions, the answers to which bear repeating for everyone’s benefit.

 

The Agency Worker Regulations 2010

Under the regulations, is an agency worker entitled to be considered for vacancies advertised internally within an organisation to which he is assigned?

The answer is yes, and this right is effective from day one. Regulation 10(3) requires that, during the course of an assignment, an agency worker has the right to be informed of any vacant posts with the organisation, in order to give that worker the same opportunity as a comparable employee to find permanent employment, whether by way of an internal or an external selection process.

It is worth noting that the organisation need not personally inform the agency worker of vacancies as regulation 10(4) allows for a “general announcement” in a suitable place in the hirer’s establishment, which would include an announcement on your company’s intranet (assuming agency workers have access to that).

The Status of Additional Paternity Leave

 

I was under the impression that regulations were coming into effect in April 2011 allowing mothers who return to work to assign a portion of their unused maternity leave to the fathers to use as additional paternity leave. Is this still the case?

These changes were due to come into effect in April 2011 following from the Additional Paternity Leave Regulations 2010. Under these regulations, eligible fathers have the right to take up to 26 weeks APL before their child’s first birthday. However this right will only arise where that father’s spouse or partner has returned to work, leaving some of their statutory maternity or adoption leave untaken.

However this was a Labour policy and the Coalition seems set to look at the issue with fresh eyes. In July 2010, Theresa May, Minister for Women and Equalities, hinted that the timetabling for implementing APL would be re-examined, leading some to believe that APL could be shelved or scrapped altogether. However, the Government’s Coalition Agreement states that it would “encourage shared parenting from the earliest stages of pregnancy – including the promotion of a system of flexible parental leave”, so it seems likely that some form of provision will be made. It is expected that the Government will put forward proposals on this matter later in the year.

 

Calculation of Holiday Hours

We have a part-time employee who is contracted to work 12 hours per week.  I have calculated his holiday entitlement based on his contracted hours.  However, he works extra hours during university holidays and believes that this should be brought into consideration, is this correct?

The correct approach is to calculate the employee’s holiday entitlement based on his ‘normal working hours’. The Employment Rights Act 1996 states that an employee’s ‘normal working hours’ are based on the contractual entitlement. The extra hours he works fall in the same category as paid overtime; as such you should base his holiday entitlement on a 12 hour working week only.

E.g. If an employee is contracted to work 12 hours per week but is also required to work overtime as and when the business requires, then his holiday entitlement would be based on a 12 hour working week.  However, if an employee is contracted to work 12 hours per week (fixed times) and 6 hours overtime (variable hours), then the holiday entitlement would be based on an 18 hour week.  The difference is that, in the second situation, there is an obligation on the employer to provide the employee with 18 hours per week.  That is not the case with your employee.

If you would like more information about any of these issues, please contact sandy.meiklejohn@blackadders.co.uk or simon.allison@blackadders.co.uk

End of the Default Retirement Age

Under the Employment Equality (Age) Regulations 2006 (and now the Equality Act 2010) employers have the right to impose retirement on employees who are aged 65 or over.   There are no adverse consequences for the employer, provided the correct procedure is followed.

This right is going to disappear from April 2011.   There will however be transitional arrangements so that provided due notice has been given, employers will be able to impose retirement up to 30 September 2011.

In effect this means that employers have a window of opportunity which will close at the end of March 2011 to impose retirement on employees aged 65 or over.   Thereafter, the dismissal of an employee aged 65 or over will have to be justified on one of the potentially fair grounds for dismissal (conduct, capability, redundancy or some other substantial reason).

While employers may be glad to retain the skills of employees who have passed their normal retirement age, it would be prudent to check payroll records to establish whether there are any employees who are already 65 or are approaching that age where the employer may want to take advantage of the present law to terminate employment by reason of retirement.

If you would like more information about this, please contact sandy.meiklejohn@blackadders.co.uk or simon.allison@blackadders.co.uk

Sandy Meiklejohn
Partner & Accredited Employment Law Specialist

Protection for borrowers, hoops for lenders

New restrictions for repossession applications

The Home Owner and Debtor Protection (Scotland) Act 2010 came into effect on 30 September, introducing extra restrictions on lenders making repossession applications for residential properties in Scotland.

The Act requires lenders to try and reach agreement with borrowers who are struggling make debt repayments. Anyone advising either party to a mortgage should be aware of these new provisions.

The new law provides that lenders cannot be granted an eviction order unless they have complied with “pre-action requirements” specified in the Act, requiring the lender to:

  • give borrowers information about advice on debt management
  • take all reasonable steps to avoid repossession
  • use reasonable endeavours to reach agreement with a borrower for clearing arrears
  • not make a repossession application if a borrower is taking steps likely to result in arrears being cleared in a reasonable time

While those words likely and reasonable are going to be the cause of some debate and interpretation, even where property is empty, a lender cannot sell under its statutory powers unless either the borrower (and spouse / civil partner) formally gives up their occupancy rights, or the lender gets an eviction order from the court.

Court applications must also be sent to ‘entitled persons’, including a spouse, civil partner, even someone living with the borrower, who also have a right to make representations to the court.

Institutional and private lenders must apply these changes, especially pre-action requirements, to ensure any enforcement action is valid.

Shaun Mackintosh
Associate

Property development sites: current opportunities?

At Blackadders, we are always in touch with other property professionals to get the most up to date and useful market information available.  While the overall market for landowners and residential property developers is undoubtedly flat, there are always trends and new research becoming available to help make the most of current circumstances.

One of our nationwide land agent contacts has provided a regular update. From this, we can see that while some sites perform strongly, others see little or no recovery. The main points are:

  1. In general, land values continue to increase, but at a slower rate than previously. Nationally, while greenfield land values increased 2.4% in the 3rd quarter of this year, urban values were up only 0.2%.
  2. Fully serviced sites are where the real growth is, particularly in areas of strong demand and limited supply, for example in Broughty/West Ferry areas of Dundee.
  3. Although the market for bulk and strategic brownfield sites is limited, some real opportunities lie in converting these into serviced products.

We are also seeing that joint ventures are becoming more common, with involvement ourselves in structuring these novel types of deal. More detail to follow shortly.

Please contact me for more details or to discuss any development matters in confidence. Direct Dial 01382 342220 or email shaun.mackintosh@blackadders.co.uk.

Shaun Mackintosh
Associate

Property Factors (Scotland) Bill to ensure standards of practice

The Office of Fair Trading declared in 2009 that the level of customer dissatisfaction in the property factor industry is far higher than any other industry or sector providing services to the public in Scotland.

The Property Factors (Scotland) Bill was drafted by Govan Law Centre and was introduced to the Scottish Parliament on 1 June 2010 with the specific aim of addressing the failings of the property factor industry in Scotland.

The Bill introduces:

  • A mandatory registration scheme
    This will require every person appointed as a property factor to pass a ‘fit and proper person’ test. The register would be funded by an annual registration fee paid by property factors.
  • A statutory code of conduct
    This will set out basic minimum standards of practice for all registered property factors. Homeowners would rely on these in their day-to-day dealings with their property factor. In extreme cases any factor falling below the minimum standards could be de-registered, preventing them from causing ongoing detriment to homeowners.
  • An accessible dispute resolution procedure
    It is expected that a Property Management Committee will be set up to hear disputes between homeowners and factors. This Committee would have the power to ensure compliance with any contracts and minimum standards of practice, and where appropriate, require the factor to make a compensatory award or refund to the homeowner.

Mike Dailly, Principal Solicitor of the Govan Law Centre, said: “Property factors must be the only industry in Scotland who are virtually unlicensed and unregulated. When one-third of your customers are unhappy with the service you provide it’s time for a statutory solution. The Scottish Government are consulting on a voluntary accreditation scheme, but we’ve had self-regulation for centuries and it hasn’t worked. The people of Scotland need a solution with legal teeth, and the bill provides that solution in a fair and measured way.”

It is anticipated that the provisions of the Bill will come into force on 29 September 2011.

Nicola McCafferty
Solicitor

Bribery Act 2010 seminar

It has been very interesting to deliver seminars in Aberdeen and Glasgow this month on the implications of the new Bribery Act 2010. It is scheduled to come into force in April 2011 and the Ministry of Justice started consultation on guidance on anti-bribery procedures last week. The new law is set to be on the agenda for all organisations – private, public and third sectors – in the coming months.

What became clear in discussion with delegates at both seminars is that the new Act will, I think, change the perception that corruption is really only a risk for the largest corporates bidding for large, oversea government contracts. Prosecution will also be made significantly easier.

Two new aspects of the law in particular provoked discussion. The first was that people or organisations with a UK association can be prosecuted in the UK for actions carried out exclusively overseas. They will normally be judged by UK standards and not the common practice in the relevant overseas territory. This is likely to present a risk to large numbers of businesses doing business overseas who, for example, reluctantly make “facilitation payments” as it appears to be the only way to do business effectively.

Secondly, if anyone associated with an organisation commits a corrupt act (here or overseas), the organisation, as well as the individual, can be prosecuted. It does not matter that, for example, the board of directors was unaware that an agent was engaging in corrupt practices. The only defence is for the organisation to demonstrate that it had adequate anti-bribery procedures in place. This will be the focus for many organisations between now and April: reviewing current procedures or putting procedures in place for the first time.

I’m presenting a seminar in Dundee on 28 October which is open to all and I hope the discussion will help as many as possible understand how this new law is likely to affect their organisation and start thinking about any action they need to take to mitigate the risks.

To register to attend the free seminar please email chris.terry@blackadders.co.uk.

Campbell Clark
Partner