Story 1 – Keep On Running
I have a confession to make. I run and I cycle and I don’t always seek sponsorship for putting myself through gruelling organised events.
I have run the Great North Run almost twenty times and will be running it again eight weeks on Sunday, and I have cycled from coast to coast. I am due in London in early October to compete in the Royal Parks Foundation Half Marathon. The course is an iconic and picturesque race through four Royal Parks (Hyde Park, Kensington Gardens, St James’ Park and The Green Park) and past some of the capitals most historic landmarks, including Buckingham Palace, the London Eye, Houses of Parliament, and the Royal Albert Hall.
Of course, I am not alone in participating in these wonderful events and many thousands of people raise valuable funds for many worthwhile causes. Only last weekend Leicestershire swimmer Susan Taylor died trying to swim the English Channel whilst raising money for Rainbows Hospice and Diabetes UK. Approximately £3000.00 had been raised on Monday morning, but on Tuesday morning the total stood at £50275.73.
Such funds can be pledged so quickly because one of the most popular methods of securing sponsorship is now through a donations website on the internet, although a cautionary tale has arisen within the past seven days.
Last Friday the online giving website www.charitygiving.co.uk was suspended and the charity regulator intervened so as to protect public donations. A shortfall of at least £250000.00 was found in the funds, and which the website should have passed on to charities.
In order to protect the funds that the public has raised, and to prevent further charitable pledges being made via the website whilst the Charity Commission’s investigation continues, the decision was taken to suspend the CharityGiving online portal with immediate effect.
CharityGiving is an online fundraising portal run by The Dove Trust.
The Charity Commission used its powers under the Charities Act 2011 to appoint an Interim Manager of the charity on 6 June 2013 in order to fulfil specified functions. On 28 June, due to the risk to charitable funds, the Commission acted to restrict the charity’s bank accounts.
Last Friday, the Charity Commission made an order to give the Interim Manager full control of the charity to the exclusion of the charity’s trustees.
The trustees have not filed any accounts since the year ending 5 April 2009 and the Commission has serious concerns about mismanagement in the administration of the charity by the trustees in relation to the operation of the online donations portal and risk to charity funds. The interim manager’s recent assessment indicates that there is a shortfall between the funds due to the charities donated through CharityGiving and the cash held by The Dove Trust.
It should be emphasised that the concerns of The Charity Commission are limited to The Dove Trust and the CharityGiving portal and the current investigation should not undermine public confidence in online giving.
Indeed, the leading online giving company, JustGiving, is trying to reassure fundraisers. JustGiving founder and chief executive Zarine Kharas said: “It couldn’t have happened to us because the monies owed to charities are 100% ring-fenced”. Zarine Kharas is now calling for all online giving websites to be made secure.
Online giving has become popular because of the ease of donating, simply through the click of a mouse. But there is concern that the problems at charitygiving.co.uk, which handled £100000.00 a week, could put off the UK’s army of sponsored runners, swimmers, and other fundraisers, just as charities are struggling to maintain their incomes.
Trustees should be reminded of the responsibilities they accept with being involved with a charitable organisation and ensure that there is a culture of strong governance.
Charitable donations in the UK amounted to £9.3bn during 2011 and although this was a 20% decrease from the previous year, there is still a significant amount of fundraising taking place.
Which returns me to my original conundrum: should I seek sponsorship for the Royal Parks Foundation Half Marathon and (if so) for which charity should I run? Any suggestions can be posted on our Facebook page and all suggestions will be considered…
Story 2 – Take A Break
Break clauses have featured prominently recently and I have advised at least one organisation on how to effectively exercise a break clause.
A break clause gives a tenant, a landlord, or either one of them, the right to terminate a lease before its expiry, on giving the specified period of notice.
It has now been decided in Marks and Spencer plc v BNP Paribas Securities Services Trust Company Limited [2013] that it is an implied term of a lease that following the exercise of a break clause, a tenant is entitled to a refund of any rental overpayment relating to a period after the lease has been terminated.
The particular break clause, which allowed the tenant to terminate the lease on 24 January 2012, was in a standard form, making its validity dependent on the tenant having been fully up-to-date with its rent and in compliance with its other obligations under the lease.
Accordingly the tenant paid the whole of the advance quarter’s rent which fell due on 25 December 2011, and which meant that the tenant was fully paid up to 24 March 2012, notwithstanding that the lease had actually terminated on 24 January 2012, following exercise of the break clause. The issue was whether the tenant was entitled to a proportionate refund for the period 25 January 2012 to 24 March 2012. Mr Justice Morgan ruled that a proportionate refund was due back to the tenant.
The fact that the lease had already terminated and the fact that the tenant would receive no benefit from the additional money paid, meant that there was a total failure of consideration on the part of the landlord. In those circumstances the law would always order a refund.
The tenant’s position was not affected by the fact that in December 2011 the tenant had reached written agreement with the landlord as to what money the tenant had to pay to the landlord to exercise the option. That agreement only related to money owing by the tenant to the landlord and did not address what monies the landlord might owe to the tenant after the lease had terminated.
Story 3 – Employment Tribunal Fees
For the first time in the history of Employment Tribunals the UK government proposes to introduce fees on Monday 29 July 2013.
All employment tribunal claims and Employment Appeal Tribunal appeals will be required to pay a fee or provide an application for fee remission.
The fee structure involves payment of an issue fee both at the time that the claim is lodged at the tribunal, and at when it is brought to an actual hearing. The proposed fees for a single claimant are follows:
- Level 1 claims – these are claims for more straightforward matters such as unpaid wages, payment in lieu of notice, and redundancy payments. The issue fee for such claims will be £160.00 and the hearing fee will be £230.00.
- Level 2 claims – these include all other claims, such as relating to unfair dismissal, discrimination, equal pay, and whistleblowing. The issue fee for such claims will be £250.00 and the hearing fee will be £950.00.
Bringing a claim or an appeal to the employment tribunal is currently free of charge with the full cost being met by the taxpayer. By introducing fees, people using employment tribunals will start to contribute a significant proportion of the £84m cost of running the system. The aim is to reduce the taxpayer subsidy of these tribunals by transferring some of the cost to those who use the service, while protecting access to justice for all.
Fees are part of the Government’s programme to promote early resolution of disputes in order to help individuals and companies to get on with their lives and businesses. The intention is to encourage people to look for alternatives – like mediation – so that tribunals remain a last resort for the most complex cases.
Readers are reminded that the merits of mediation were addressed in the May 2013 edition of this newsletter.
Story 4 – Get Social
Many thanks to everybody who attended the seminar on contracts and contracting held at The Fire Escape in Redcar on Friday 21 June 2013. The feedback was very positive so I hope everybody found it to be both interesting and informative.
One of the concepts that I addressed during the seminar was the concept of joint and several liability. This has had a significant impact upon one local organisation very recently. Joint and several liability is where two or more individuals or organisations make one promise binding all of them, and each also makes a separate promise binding him or her alone. This does not entitle the person receiving the promise to obtain more than was originally promised by all together, but that person may seek to obtain it from any one (or more) of the parties.
The notion is most usually encountered in both tort and contract, but there has been a recent decision relating to employment.
In London Borough of Hackney v Natasha Sivanandan [2013] an employee established that she had been discriminated against in relation to two job applications to a charity co-funded by the local authority. This discrimination arose because she had previously brought discrimination proceedings against the council.
The Court of Appeal found that liability for discrimination cases is “joint and several”. Further, it found that an employment tribunal cannot normally apportion liability between joint respondents.
This means that a claimant is entitled to recover 100% of the award from any one of the respondents. If a claimant recovers all their compensation from one respondent, then that respondent would need to pursue the others for a contribution through a separate court claim.
The court also held that damages arising from a discrimination claim are usually “indivisible”. As such, the employment tribunal has no power to apportion liability for damages arising out of the same facts or circumstances. It would take exceptional circumstances for a particular respondent to be able to isolate the consequences of their specific acts. This should concern all respondents named personally in discrimination proceedings. It is true that the claimant is likely to seek payment from the respondent with the deepest pocket, but an employee jointly and severally liable might find themselves liable for 100% of an award where the employer has become insolvent.
Members and officers of local authorities, health trusts, and other public authorities should also be concerned. Even where an indemnity is granted by the authority, it may not cover the liability. Worse, the authority may be under an obligation to pursue them for a contribution to any award (and any legal costs).
The next seminar that I will host will be on Intellectual Property at The Trinity Centre in Middlesbrough at 9:30am on Monday 5 August 2013. Bookings are now being accepted or you can e-mail mail me at [email protected] so as to register an expression of interest.
I attended a very interesting and informative social media clinic at Redworth Hall earlier this week and many thanks to the three guest speakers. Remember that the details for engaging with RCVDA are listed below. Have a great summer!
