Guest Blog Post

Few organisations have failed to be affected by the recession, which continues to grip firms across the UK. Unfortunately, the downturn is also causing financial problems for charitable organisations, which usually tend to be unaffected by economic peaks and troughs.

As charities throughout Britain struggle to balance the books, increased red tape and fraudulent activities are causing additional headaches. Any person who is responsible for a charity should ask whether sufficient measures have been implemented to counteract fraud at a time when goodwill is needed more than ever.

Fraud

Most fraud solicitors in the UK will agree that charities are vulnerable to some of the worst acts of deception. Charities are also often used as fronts for criminal operations, which is partly why regulation has been stepped up in recent years. All charities must ensure that sufficient steps are taken to avoid fraud, otherwise they could end up suffering extremely serious consequences. Apart from losing money, assets or resources, they could face criminal prosecution.

Bribery Act 2010

A recent survey found that many charities were unaware that the Bribery Act 2010 applied to them. This is perhaps because Section 7(5) of the Act describes a “relevant commercial organisation”. Few charity workers would consider themselves to be agents of a commercial organisation but the 2010 Act does not explicitly define what it means by words such as “commercial” or “business”. In short, charities may or may not be subject to the Bribery Act 2010.

If, as the majority of legal commentators argue, charitable organisations are subject to the 2010 Act, they must ensure that they pay close attention to Section 7, which provides that the implementation of “adequate procedures” can be a defence to any charge of bribery. So if somebody involved in a charity is found guilty of bribing another organisation, individual or company, the charity itself will not face legal action if it can prove that adequate measures were implemented to prevent such a crime. All charities should consider their position on bribery very carefully to avoid falling foul of the law.

Facts and Figures

According to ‘Managing Charities – Risks and Opportunities’, a charity survey published by Baker Tilly, less than half of respondents had implemented measures to prevent or react to fraud. This is despite the fact that 7 per cent of surveyed charities had been the victim of corruption or bribery in the last year. Meanwhile, the Charity Commission’s survey of 1,000 charitable organisations last year revealed that up to £5,000 a year on average was being lost by charities to fraud. This constitutes approximately 2.5 per cent of revenue.

MIR

All charities in England and Wales are strongly advised to create a Major Incidence Response (MIR) plan to deal with issues of fraud. A well-drafted MIR plan would ensure that an internal response plan is on hand to manage corruption should it be identified or suspected. The plan would feature an anonymous whistle-blower system, reporting guidelines and procedures to improve business activities. Without implementing adequate measures to counteract fraud, charities leave their operations exposed to potential ruin.

This post has been written by Denver on behalf of Burton Copeland. Click here for further information to stay informed of more developments.

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Charities: Do you have Measures in Place to Counteract Fraud? originally appeared on Jobsworth by Michael Scutt on 16/05/2012.

It didn’t meet with the same critical acclaim last week that the film of  nearly the same name – The King’s Speech – did a few months ago. No one seemed very impressed by it, little detail was provided and what we have been promised has been mooted already.  The business lobby were underwhelmed by the lack of specifics. The Government’s public discomfort continued as they managed to please no one. Business didn’t like the lack of detail and everyone else seemed underwhelmed. Ed Miliband had a good day, saying,

“No change, no hope – that is the real message of this Queen’s Speech.“

 and

“In two years, you have gone from David Cameron to David Brent. That’s the reality“

Rather good, but isn’t it a rehash of Vince Cable’s memorable description of Gordon Brown as Mr Bean a few years back?

David Brent being, of course, the line manager from hell.  The sort of person who would give lawyers endless work if he were conducting protected conversations, or trying to conciliate disputes.

 It’s not surprising; the same old tired claims about needing to reform employment law to stimulate the economy.  So, we’ll get the Enterprise and Regulatory Reform bill, which will require all Claimants to lodge their claims with ACAS and consider early conciliation.  The Bill will also streamline employment tribunal procedures;

“Legislation will be introduced to reduce burdens on business by repealing unnecessary legislation.”

Expect the measures that have been trailed and consulted on already to be in it: ET issue fees, protected conversations, maybe even abolishing unfair dismissal claims for small businesses.  The Beecroft report is said to be back in favour. Yawn.

The new Bill will also ring fence the retail banking functions of investment banks to protect us from the worst excesses of so-called casino capitalism. And, on a day when Commerzbank lost its case against 104 of its employees, the government will legislate to restrict bankers’ bonuses.

It’s not all about restricting or removing rights though. A Children and Families Bill will extend flexible working for parents. As a parent myself I welcome anything that makes life easier for people trying to balance work and home life, but if you want to find an area of employment rights that causes employers, especially smaller businesses, a headache on a daily basis it is flexible working, not unfair dismissal or discrimination claims. Even so, it’s to be welcomed.

 The Commerzbank decision was an interesting one. I have not seen the Judgment yet but it seems that Mr Justice Owen made the right (but nonetheless still brave) decision to hold that Commerzbank must honour its contractual obligations to those employees to whom its predecessor Dresdner Kleinwort had promised bonuses. The Bank was not able to rely on the downturn in the economy and the worst results in its history to justify a “material adverse change” to allow them to vary those contracts. The bonuses due ranged from £12,000 to £2mn. In the end it seems to have been decided on straightforward contract law principles and fact rather than novel legal principles.  Commerzbank were not able to persuade the Judge that the bonuses were discretionary. The Guardian reported a Commerzbank spokesman as saying;

“The main argument revolves around whether the announcement on 18 August amounted to a legally binding agreement. It is the bank’s submission that there is every prospect that the court of appeal would come to a different view on this matter”

So, it’s not over yet. Will there be “copycat litigation” ?  Probably, but this was a dispute which had its origins in the 2008 financial crisis and the landscape is different now, due to the FSA’s Financial Remuneration Code which restricts the size of the largest bonus payments. Undoubtedly though, more scrutiny will be put on what is said by line managers when the “B” word comes up.

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The Queen’s Speech originally appeared on Jobsworth by Michael Scutt on 15/05/2012.

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Advancement of Personnel Management with Smart Technology originally appeared on Jobsworth by Michael Scutt on 10/05/2012.

In this latest podcast I’m joined by Philip Henson, Partner at Bargate Murray Solicitors to chew over the new and proposed reforms to employment law and the case of Seldon v Clarkson, Wright & Jakes.

Health Warning:  This podcast is just an informal chat between two blokes with nothing better to do than talk about employment law one evening.  It doesn’t constitute legal advice in any way.

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Podcast#4 – Philip Henson of Bargate Murray originally appeared on Jobsworth by Michael Scutt on 04/05/2012.

Last week it was reported that BA Air Steward Rothstein Williams, a Seventh Day Adventist, was not permitted to pursue his case for religious discrimination beyond a pre-hearing review at Reading Employment Tribunal. He complained that a female colleague had called him “darling” after asking him to collect some glasses during a flight.  He took offence and sued.

Mr Williams was also upset because he thought he was harassed for studying the Bible at work.

The Tribunal dismissed his claims, accepting BA’s explanation that “darling” was a convenient epithet to use because there were so many flight crew that they couldn’t be expected to remember everyone’s names. How about name badges then?

You can call him Darling

How Mr Williams thought being called “darling” was offensive to his religion isn’t clear, but as the Air Stewardess in question routinely called everyone, male and female, “darling”, a claim for sexual harassment or discrimination was probably also doomed to failure.

The Guardian Work Blog carried an interesting article on this subject by employment lawyer Philip Landau last week.  In it Landau quotes from a couple of surveys on the use of terms of endearment in the workplace.  One is a survey by Hiscox which reported that 50% of employees in the 25-34 age group had no objection to the use of the term “pet” or “love”, although these findings were contradicted by the OnePoll survey, from which he also quotes, saying that female employees hated being called “love” most of all, followed in order by “darling”, “babe”, “mate” and “hun” and roughly 75% of females surveyed thought such names were unacceptable. 25% said it made them angry. I thought about trying it out here on my female colleagues, in the interests of research, but decided against it as I’m fond of my front teeth.  I once called Mrs Jobsworth “hun” and only just managed to escape with my life.

So wasn’t Mr Williams’ anger justifiable?  Women often refer to their female co-workers as “hun” or “darling”, so isn’t that objectionable too? Between women it is less likely to be objectionable because there is less likely to be any sexual connotation or implication behind the words.  Context is everything and it isn’t satisfactory to say we all getting too politically correct.

Would anyone want to go back to the environment shown in Dominic Sandbrooks’ programme “The 70s” which was on BBC2 last night? For anyone interested in the social and political climate around the time of the introduction of the Equal Pay Act and the Sex Discrimination Act it makes fascinating viewing. On New Year’s Eve 1975, ITV’s end of year celebration programme was the Wheeltappers and Shunters Club hosted by none other than Bernard Manning.  Can anyone imagine Bernard Manning being suitable for prime time TV entertainment now, allowing of course for the obvious drawback, of course, that he is dead, but you know what I mean.    My only criticism of the series is that Sanbrook tries to pack too much in to each episode.

Finally, a challenge for you, below are two photographs.  Spot the difference and tread warily.

A Minefield

A Workplace

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Don’t Call Me Darling originally appeared on Jobsworth by Michael Scutt on 01/05/2012.

Sponsored Guest Post by Hibberts Solicitors, Crewe

 Experience is very important in the legal profession. Training-contract applicants who have failed to undertake any relevant work experience stand little chance of landing an interview with a magic-circle law firm. Prospective lawyers often spend their summers working for legal organisations as paid interns, but not all internships come with a salary – some undergraduates are required to gain experience without earning a penny.

Minimum Wage

 Under UK law, all interns must receive a minimum wage unless they are volunteers who expect to gain no benefit from supplying work for nothing. This is obviously not the case for legal interns, who can at the very least expect to learn a few skills from working alongside practising solicitors. They might also expect to be given an interview upon successful completion of an internship. Indeed, plenty of law students who obtain training contracts are likely to receive interviews from employers with whom they have completed a period of official work experience.

Many solicitors and other towns or cities in the UK will probably appreciate the benefits of an internship, but should young lawyers expect to be paid for their efforts? According to the law, they should probably receive the minimum wage, so why are some legal firms and organisations failing to pay their interns?

The answer is that there are too many law graduates in the UK. If demand cannot cope with supply, the surplus will fall by the wayside. As universities across Britain continue to produce thousands of lawyers looking for work, many law firms are thinking about downsizing their operations amid continued economic difficulty. This imbalance allows legal practices to be far more selective with candidates and applying for unpaid internships has become extremely competitive among students and graduates because everyone wants an opportunity to be noticed by a big firm. Unfortunately, that is simply not possible.

Exploitation

 News emerged last year that unpaid internships in the legal sector were becoming more common. Even interns at Justice, a law reform charity, were found to be unpaid. The question is, should legal interns expect to be paid for being given an opportunity to learn the ropes at a law firm? Aside from the point that unpaid internships are possibly illegal, what drives the argument that interns ought to be paid? On what ethical grounds should interns expect to receive money for what is essentially an opportunity to join one of the most prosperous professions in the country? The answer is simple: the minimum wage is the only effective measure to prevent the vulnerable from being exploited.

To put it more bluntly, the legal profession risks exploiting workers by capitalising on the oversupply of law graduates. Just because interns are willing to work for free does not mean that it is right for firms and organisations to avoid the minimum wage. Some would even argue that the minimum wage is insufficient for the kinds of role undertaken by legal interns, many of whom are expected to work long hours for several weeks or months at a time.

The problem for interns is that they need work experience to put them in a position to stand out from the thousands of other training-contract applicants. Desperate people do desperate things and legal organisations ought to be responsible enough to limit the desperation of their interns and not promote an environment in which desperation drives the illusion of success. After all, there are still too few full-time legal positions available regardless of how many interns are willing to work for nothing.

This post has been written by Denver on behalf of Hibberts, solicitors in Crewe who help people receive the claims they deserve – they also want to activity present and provide an opinion on any changes in the legal sector which may impact current or future activity so that you are kept informed.

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Exploitation or Experience? Why Unpaid Legal Internships Are Rocking The Legal Profession originally appeared on Jobsworth by Michael Scutt on 26/04/2012.

Given all the rain we’re having at the moment it may seem inappropriate to write about the Sun, but come the 1st September I hope he’ll have his hat on and if not playing, at least putting in an appearance. For on that day I will be cycling, walking and canoeing for charity in an event called “Race the Sun” in the Lake District.

Thirlmere from the top of Helvellyn

It’s a 50 mile cycle ride, a stiff walk up Helvellyn (2nd highest mountain in England) and a short, but no doubt taxing, canoe around Thirlmere. The race starts at dawn and you have to be back by sunset, hence racing the sun. It’s not the cycling or the hiking that concerns me so much as the canoeing, as it’s something I haven’t done much of. Thankfully all but five miles of the biking is on road.

Like most of these events, it is a fund raiser for charity, in this case Action for Medical Research (AMR), which funds research into medical treatment for babies and children.

I’m doing it as part of a team – “Back B4-9” – and we need to raise £2,000 to be able to take part. My team mates are Nick Lofthouse, Warwick Wyatt (a personal trainer, so he should be ok doing it) and Erol Osman. We all attend a breakfast networking club called, funnily enough, B4-9. The name chose itself really…

Back B49 team to raise £2000 for charity. http://t.co/wXMV1YSWThe team is @WarwickWyatt @NickLofthouse @michaelscutt and Erol Osman

23/04/2012 11:18 am via Twitter for iPhoneReplyRetweetFavorite

@B49Business

B49 Business Network

 I have a sponsorship page both team and personal – click here – and, of course, any donations you care to make will be gratefully received. My good friend and colleague Jill Watson, was kind enough to kick off the sponsorship. Jill is due to give birth shortly – so I suppose I shouldn’t complain about the pain of a nice cycle ride in the country.

I’m determined to put in a respectable showing come race day so have been building up the training. Yesterday the team got wheeling over to Hemel Hempstead and return again, a distance of approximately 35 miles, with a couple of steep hills en route. I never knew Harpenden was so hilly; it’s like the Alps, only with more BMWs and less snow. I had my usual puncture, the third in as many rides: I’m getting quite adept at repairing them now.

 It’s the canoeing I need to work on. Is there anyone out there who could lend me a kayak for, say, 6 months?!  I’ll do an update from time to time on our training.

We need to raise £2,000 so we can do it, so all donations will be very gratefully received so, please, if you can, Back B4-9!

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Race The Sun 2012 originally appeared on Jobsworth by Michael Scutt on 24/04/2012.

Employers in the UK might think are vulnerable to any manner of speculative or vexatious claims from employees, however they should be grateful they aren’t in Australia, where a recent case will have the Institute of Directors and Tory MPs spluttering into their copies of the Daily Telegraph.

 Roll on Friday, the purveyor of legal news and salacious gossip, carried this story (which also featured in the Australian Telegraph) about an HR executive required to travel for a meeting and to stay overnight in a motel.  During this overnight stay she had sex with a male acquaintance (not a work colleague), which led to her sustaining facial injuries and psychiatric injury from a falling light fitting.

She sued her employer on the basis that the injuries had been sustained “during the course of her employment”.  RoF reports the rationale for this thus;

“Justice Nicholas stated that she didn’t have to show that her employer had encouraged or induced her to have sex, “If the applicant had been injured while playing a game of cards in her motel room she would be entitled to compensation“. And as sex is a lawful activity, she should be compensated for her injuries.”

I’m wondering if the court was asked to consider whether any degree of contributory negligence applied to her for not checking that the chandelier was safe before she started swinging from it.

Thanks to @taruntawakley whose tweet brought it to my attention.

Woman injured having sex on work trip was conducting activities in course of employment and compensated http://t.co/pgTDVh2b #ukemplaw #hr

20/04/2012 5:11 pm via webReplyRetweetFavorite

@TarunTawakley

Tarun Tawakley

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Employer Liable for Employee’s Injuries Sustained During Sex Session originally appeared on Jobsworth by Michael Scutt on 21/04/2012.

Sponsored Post

What is an intern?  There is no legal definition that I’m aware of, but words like “skivvy”, exploitation, and, less pejoratively, work experience come to mind when discussing internships.

Although there are negative connotations, an internship can be a good way for a person post-graduation to overcome the hurdle of getting the first job without having any experience (and you can’t get that work experience without having a job). Graduate recruitment is as hard as it has ever been and anything that helps people get into work should be welcomed. But internships aren’t above criticism.  An internship usually involves working for no “proper” salary or getting paid expenses only.   However, an intern may be deemed to be a “worker” and thus be entitled to receive the minimum wage, and holiday pay. Some roles, such as students on a “sandwich” course doing a job lasting for less than  12 months during their first degree, or voluntary workers or apprenticeships are exempt from the NMW.

The key aspects of an internship are that they

-  are used in the graduate, white-collar jobs sector

- are voluntary, with payment of expenses but not salary (usually)

- are designed to provide training and experience

- may be limited to a particular task or project

- and limited in duration (the longer they last the more likely it is that the intern will be deemed a worker or perhaps even an employee)

But there is scope for exploitation and internships can be controversial because interns have few legal rights. Effectively they are volunteers in all but name. Volunteers are not entitled to bring claims for unfair dismissal and, because they get nothing more than expenses or a subsistence allowance they aren’t classified as “workers” and thus they can’t bring discrimination claims. If a salary is to be paid it must be at least equivalent to the minimum wage.

An example of that came up in May 2011when Keri Hudson, an intern at the My Village website, succeeded with her claim that she was entitled to at least the minimum wage and holiday pay. She had been in charge of a team, writing copy for the website and recruiting other interns for two months. According to the report in The Guardian she had been promised pay but it never materialised.

The law is rather murky in this area. Some say that there is no such concept as an intern known to English law.  Employers who take on interns are at risk of facing claims if they treat them like cheap expendable labour instead of offering a proper training opportunity. Recently graduated people desperate to get on the jobs ladder are ripe for exploitation and few will want, or be able, to take a stand like Keri did. The key to running a successful intern scheme must be mutual respect, not exploitation.

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I Turn, You Turn, We Intern originally appeared on Jobsworth by Michael Scutt on 20/04/2012.

Sponsored Post

Having an accident at work can bring serious consequences.  As well as the pain and suffering that will inevitably accompany an injury, there may be significant other losses as well, such as loss of earnings or medical treatment fees.  If you can prove that the employer was at fault then it may be possible to recover work accident compensation.

 Every employer owes a duty of care to its employees to provide them with a safe system of work. Difficulties can arise in proving that a breach of the duty of care was negligent.   To assist employees there are a number of statutory duties laid down which impose obligations on employers.  For instance, the Management Health and Safety at Work Regulations 1999 require all employers to carry out a risk assessment of every aspect of the work environment and activities. The Workplace (Health, Safety and Welfare) Regulations 1992 set out minimum standards to be adhered to at work.

The Manual Handling & Operations Regulations require that all heavy lifting tasks be avoided or, if they can’t be, that effective training and measures be put in place to prevent injuries occurring.

The Provision and Use of Work Equipment Regulations impose a duty of strict liability on an employer if an employee is injured using work equipment.  This means that a Claimant only has to prove that the injury was caused by the work equipment and not that the employer was at fault in any way.  For an employee that is a considerable boon because it can often be difficult to prove negligence.

Don’t forget as well that an employer may be liable for the actions of a fellow employee, so if the injury is caused by a colleague’s carelessness or fault it may be possible to hold the employer vicariously liable for the other employee’s negligence.

The key to obtaining compensation is to take specialist advice.  Accidents at work can be complicated and you need someone who is familiar with the law.

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Compensation for Workplace Accidents originally appeared on Jobsworth by Michael Scutt on 19/04/2012.