Legal Newsletter (Second Edition)

Welcome to the second edition of RCVDA Legal

The legal e-newsletter of the Redcar and Cleveland Voluntary Development Agency

In this edition we advocate the use of mediation, a completely voluntary and confidential form of alternative dispute resolution; seek to identify the difference between volunteers and casual workers; and round up some of the things that have been happening recently in our ‘Down At The Farm’ section including news of two very exciting training events before taking a quick look at some of the difficulties that can be encountered with social media whilst simultaneously inviting you to follow us on both Facebook and Twitter!

Mediation

A mother goes into her kitchen to find her two daughters arguing over the last orange in the fruit bowl. She intervenes, taking the fruit from the children and cutting it in half. Each daughter is given half the orange.

One daughter goes into the lounge and sits down to peel her half of the orange. She throws the peel in the bin and eats the fruit. The other daughter stays in the kitchen, carefully removes the peel from the fruit, throws the fruit away and uses the peel to bake a cake.

The knife represents the law: the equal division was a legal solution. But the outcome could have been very different had the mother asked: “Why do you want the orange?” Had she done so and each daughter answered honestly, then both could have had 100% more. The mother could have added value at no cost – with the chance to gain even better involvement with her hungry offspring.

Mediation is a key form of Alternative Dispute Resolution (otherwise known as ADR). Alternative here means an alternative to having a decision imposed by a judge in court.

Mediation is a consensual process, based on self-determination that involves the participants in the dispute meeting with a neutral third person. The mutual aim is to find a resolution to the dispute or problem that the participants face.

It is a confidential and without prejudice activity that allows the participants to explore the full range of potential solutions in a safe environment. The mediator may encourage the use of principled negotiation, based upon reason and objective criteria. The mediator may reality-test the perceptions of fact, advantage, risk, and cost; and thereby assist the participants to find a mutually acceptable solution.

The solution need not be, and often is not, an outcome that a judge might or could properly impose through a decision in a court (which is limited by legal constraints, rights, and precedents). It is simply the unique resolution found by the participants in the mediation that is ‘good enough’ for them in all the circumstances.

The resolution is often more comprehensive and creative than a judgment or an arbitral award. It can provide a “win-win” outcome for the participants. As part of the search for a solution a skilled mediator will often look for added value which is often missed in mainstream negotiations, but can be a way of removing deadlock.

The reasons to mediate include benefits to the client or participant in terms of costs, outcome, speed, reduction in hassle, and confidentiality. By mediating, the client or participant also avoids the negative aspects of a court process, such as sanctions and risk.

It is on the positive reason to mediate that focus should be placed. The range of extra-judicial outcomes, the confidentiality, speed, and savings in costs and management time are particularly strong features. The saving or recovering of relationships, and the keeping of control with the participants (as opposed to handing it to a judge or an arbitrator) are others.

With referral to mediation being increasingly encouraged by the government, Nick Dent has now become qualified as an accredited mediator after having completed his training with the London School of Mediation and is currently in the process of being registered with the Civil Mediation Council.

If you believe mediation might benefit your organisation or you want to discuss the merits of bringing a dispute to mediation then please contact Nick Dent on 01642 440571 or by e-mail at legal@rcvda.org.uk

All In A Good Cause

They were, without doubt, the most obvious and famous example in 2012.

70000 volunteers devoted 8 million hours between them and were still made to wear those garish purple uniforms!

Jacques Rogge, the President of the IOC, described them as ‘the much-needed heroes of these Games’. Yes, the Games Makers at the 2012 Olympic and Paralympic Games were much lauded, and deservedly so.

But when does a volunteer become a casual worker and when does a casual worker become an employee? And what difference does it make anyway?

In common usage, volunteers are usually defined as people who give their time for some project or purpose, without being obliged to do so, and without pay other than reimbursement of genuine out of pocket expenses.

Although it is good practice to reimburse volunteers for expenses they incur while working for your organisation, you do need to exercise caution when it comes to refunds. Paying “expenses” automatically, without justification, can be seen in tribunals as the equivalent of paying a salary.

Charity Commission Briefing 21 states “Paying includes not only payment in money, but also benefits in kind, such as free (or subsidised) accommodation or the provision of a car”.
The safest course is to reimburse only actual expenses, preferably against receipts. Always offer to pay your volunteers’ expenses. Create a specific procedure for making reimbursement payments and make certain that everyone knows what it is. The following are examples of legitimate expenses:

• travel to and from the place of volunteering
• travel undertaken in the course of volunteering
• meals taken during the course of volunteering (usually a single meal up to a certain value per day)
• postage and telephone costs if working from home
• protective clothing or other essential equipment
• childcare expenses

An employment relationship, however, is defined by a ‘mutuality of obligation’. An employer has a duty to provide work and an employee has a duty to accept it. A worker also has an obligation to provide a service.

Why does it matter? The nature of the role defines the relationship between the organisation and the individual and the rights and liabilities owed by each party. If an individual is an employee, he or she will be entitled to the full range of employment rights, including unfair dismissal and the right to a statutory redundancy payment.

Consider X v Mid Sussex Citizens Advice Bureau. The claimant was a specialist adviser for welfare rights at the Citizens Advice Bureau, as a part-time unpaid volunteer. She was asked to cease to attend as a volunteer, in circumstances that she claimed gave rise to a claim under the Disability Discrimination Act 1995. The Supreme Court ruled that discrimination laws do not cover volunteers unless they have a contract or are undergoing vocational training.

Compare this with Maria DeLourdes Armitage v Relate & others (1994) COIT 43538/94. This was a racial discrimination case brought by Mrs Armitage, a volunteer counsellor with Relate.

Under the terms of her service agreement, Mrs Armitage would have to provide a minimum amount of counselling each week. If she left Relate before providing 600 hours of counselling she would have to pay back a proportion of the cost of her training. There was also the possibility of payment for work after a certain number of volunteer hours. In one passage of the agreement the Executive Committee is referred to as ‘technically “the employer” of the counsellor’.

The tribunal decided that the mutual obligations set out in the agreement (Relate’s obligation to provide training and the counsellor’s obligation to work or repay the cost of the training), and the expectation of paid work in the future were enough to create a contract of employment.

The employment appeal tribunal showed a good understanding of volunteering and the issues faced by voluntary organisations in the case of South East Sheffield Citizens Advice Bureau v Grayson [2004].

The case was brought by a paid member of staff seeking to show that the bureau’s volunteers could be regarded as in employment, but the Employment Appeals Tribunal concluded that the bureau’s volunteers did not fall into the Disability Discrimination Act’s definition of employment.

In what circumstances can a casual worker be seen as an employee? The Court of Appeal’s much anticipated decision in Stringfellows Restaurant Limited v Nadine Quashie [2012] EWCA Civ 1735 has provided useful guidance on the key elements that determine whether a casual worker can be regarded as an employee. The Court of Appeal held that Ms Quashie, a lap dancer, was not an employee, overturning the Employment Appeal Tribunal’s (EAT) decision.

Determining the employment status of an individual is very important in clarifying the employment rights of that person. Employees as opposed to workers (which include agency workers and contractors) have more employment rights, including having the right to make a claim for unfair dismissal and be entitled to sick pay.

The Stringfellows case demonstrates that determining the employment status of a worker is not an exact science and cases in this area are decided based on the facts.

The case also provides a warning to companies that it is not enough to just state in the contract that a worker is not an employee ~ the courts will apply the multiple test and examine the true nature of the relationship between the parties.

Down At The Farm…

SMALL CLAIMS LIMIT

Consumers can now take larger claims to the small claims court in England and Wales, as the maximum claim limit rose on 1 April 2013.

The small claims system now deals with claims of up to £10000.00.

Despite its name, the small claims court is not a court in the traditional sense. Instead, judges make the process as informal as possible, while the losing side does not usually have to pay the winner’s legal fees.

The system is used to take action against someone who owes you money, but won’t pay it.

Do bear in mind, however, that litigation should usually only be used as a last resort and that it might be possible to negotiate a more creative solution and maintain amicable relations by first consenting to mediation. We would urge you to read the first article in this newsletter and to remember that oranges are not the only fruit…

DISCLOURE AND BARRING SERVICE

In preparation for the new update service to be introduced shortly, the Disclosure and Barring Service (DBS) have highlighted the need to change the way in which forms are completed regarding ‘Position Applied’ for.

Due to a change in legislation, you will need to complete field x61 on the application form differently and you should start to do this right now. Changing the way you complete this field now, for all DBS application forms, will ensure that any DBS certificate issued after the update service commences can be used by the individual in the new service, and to take it with them from role to role within the relevant workforce(s). This is because the Police will now use this broader definition of ‘workforce’ to assess the relevance of any information that they may consider for release, in place of ‘position applied for’.

You should now include one of the following phrases in field x61, line 1:
‘Child Workforce’ ~ use this for any position that involves working/volunteering with children.
‘Adult Workforce’ ~ use this for any position that involves working/volunteering with adults.
‘Child and Adult Workforce’ ~ use this for any position that involves working/volunteering with both children and adults.
‘Other Workforce’ ~ use this for any position that does not involve working/volunteering with Children or Adults e.g. security guard.

SUCCESSFUL MERGER

RCVDA wishes to offer Oldham Community Accountancy Service and Voluntary Action Oldham every success in their merger. Nick advised OCAS during the merger process with VAO and he and everyone at RCVDA would wish to congratulate them on the successful completion of the merger and wish the newly formed entity every success for the future.

CIO

Also, we reported last time that there had been 44 applications nationally from organisations wishing to become Charitable Incorporated Organisations, the new legal form specifically designed for charities.

We are pleased to report that RCVDA have now been involved in the registration of their first CIO and we await the decision of The Charity Commission within days; good luck to Footprints In The Community in the application process and we are confident that RCVDA will soon be joining the elite in having created one of these new legal structures.

TRAINING

We are very excited to announce the delivery of two training sessions in the coming months. Nick will deliver a training course on “Contracting” provisionally scheduled for June 2013 and we have been able to secure the services of a highly experienced employment lawyer to deliver a training course on “Managing Redundancies” which is provisionally scheduled for Friday 5 July 2013.

Theresa Smith has specialised in employment law since 2001 working largely with commercial and public sector clients. She has a breadth of experience working with SME’s and owner-managed businesses through to nationally operated PLC’s and household names across a number of sectors. Theresa worked previously at Ward Hadaway working in their large employment team before joining Jacksons Law Firm in Stockton on Tees. She was appointed at Tilly Bailey & Irvine in April 2012. Theresa has appeared at Tribunals across the UK and is a savvy advocate and a formidable negotiator. She blends her commercial, legal, and HR skills to the benefit of her clients. Theresa prides herself on giving fast, ‘hands on’ advice with a heavy focus on commercial practicality.

RCVDA will start accepting bookings for both courses very soon but the easiest way to keep up to date with all the latest news is to “like” our Facebook page (RCVDA ~ not Rcvda Redcar!) so that you can be the first to know of some of these events, which conveniently brings us onto our last item…

Get Social!

There can be little doubt that the advent of social media opens up immense opportunities to connect with such immediacy with both friends and colleagues. Messages, comments, and photographs can be sent around the world in literally seconds. So what are the perils of your organisation using social media?

Social media does present an increasing challenge to both employers and employees, but is the risk more about reputation than the possibility of legal action?

It would seem that evidence being gathered from social media websites is, with increasing frequency, helping to determine the outcomes of legal disputes in the UK and abroad.

For example, Basingstoke and Deane Borough Council successfully prosecuted a resident for benefits fraud after investigators used information published on her Facebook page to prove that she did not live alone, as she had claimed, but had been living with her partner for 10 years!

In the US, teenager Rodney Bradford experienced the flip side of the coin when he was able to demonstrate his innocence by pointing to a Facebook ‘status update’ which proved he was impatiently waiting for some pancakes, not mugging an old lady in Brooklyn as witnesses had supposed.

The media has been particularly quick to jump on social media stories which are both cautionary and humorous, as in the case of an American who was arraigned in September after logging onto his Facebook account at the scene of his crime. Unfortunately for him, so distracted was he by his illicit gain of a pair of valuable diamond rings that he forgot to log out again when he left the house.

Other similarly humorous, if less actionable, cases have proved that social media failures are a news staple worldwide. White-collar workers everywhere enjoyed a hearty laugh at the expense of Australian Kyle Doyle, when his claim for sick-pay was denied by a superior who was able to produce a screenshot of the Facebook status update ~ ‘Kyle’s not going to work… I’m still trashed. Sickie Woo’ ~ he had posted in his drunken stupor the night before the day in question. The embarrassing screenshot and accompanying e-mail conversation were soon enlivening in-boxes across the globe.

Contrastingly, no-one was laughing at Virgin Airways when disgruntled cabin crew were caught referring to passengers as ‘chavs’ on a Facebook group page they had themselves set-up; the affair concluded with the sacking of 13 cabin crew. In a less clear-cut case, three care workers, who have since sought recourse from the Citizen’s Advice Bureau, were fired by a nursing home in Stoke-on-Trent for ‘bringing the company into disrepute’, after posting unauthorised photos of staff members at work in their uniforms, again on Facebook.

Research has revealed that over a quarter of 18-35 year olds regret posting inappropriate content in the past, and that one in four single adults admitting to having photos of themselves online that they would not want their bosses or colleagues to see.

As media scrutiny of social media stories has intensified, the legal profession has been under pressure to demonstrate its own social media savvy, especially when it comes to foreseeing the legal implications of social media usage on behalf of corporate clients.

The Law Society has even issued a press release warning employers that using social networking sites to vet job candidates was ‘potentially risky’ because it is possible that obtaining ‘information about a person’s sexual orientation or religious beliefs that can impact or is perceived to impact on the decision made to recruit that person… can lead to discrimination claims’.

But is this practical? After all, employers in the process of vetting job candidates are not limited to applying solely to the candidate when they carry out their researches. If they were, asking for a reference from a previous employer or an acquaintance would be suspect.

The scope for some social media faux pas is ever-increasing and organisations therefore need to seize the initiative by introducing social media standards as part of a company code of conduct; by making sure all employees are aware of the privacy setting options available to them on their profiles; by asking colleagues to take down any unprofessional pictures, videos, or content of themselves or their fellow employees; by empowering employees to use social media in a way that will help themselves and their firm; and by training key members of staff as social media tsars who will oversee the whole process.

Tees Valley Rural Community Council is delivering a course entitled “An Introduction To Social Media” at Loftus Co-op Community Building at 6:00pm on Thursday 23 May 2013. This introduction to social media will explain how it fits into your marketing plan and will answer all your questions about Facebook, Twitter, and QR codes. Contact Norah Sanders by post at MVDA, St Mary’s Centre, 82-90 Corporation Road, Middlesbrough, TS 1 2RW, or by e-mail at general@mvdauk.org.uk to secure a place.

Notwithstanding this cautionary tale, RCVDA would invite all our valued customers and subscribers to “like” our Facebook page (remember it’s RCVDA and not Rcvda Redcar!) or follow us on Twitter (@RCVDA) or both where we can hopefully keep you all up to date with the latest news and events and funding opportunities whilst simultaneously demonstrating a responsible social media presence…