BHA & BBPA "Clear Winners" in case against PPL

Some interesting news re the PPL tariff - The Copyright Tribunal announced its decision yesterday on the Phonographic Performace Ltd's (PPL) tariff for playing music in public areas in hotels, restaurants and pubs. PPL had significantly increased its tariff in 2005/06 but the British Hospitality Association and the British Beer and Pub Association were called "clear winners" as the Tribunal has ruled that the PPL must reduce their tariff substantially as much as 75% but on average by half. That means there could be up to £20million in refunds!

The Tribunal's decision allows PPL just a 10% overall increase. For example, a hotel, restaurant or bar playing CDs/tapes or radio/TV with an audible area of just under 400 square metres would have paid PPL £464.80 for its licence this year, but the Tribunal decision has reduced this to around £110.

Excessive fees paid by hospitality businesses since 2005/06 worth up to £20million are to be refunded though not for refunds of less than £50 in total. Businesses due refunds will have to claim, rather than receiving them automatically. PPL is appealing against the decision, so there will be a delay before it writes to the 41,000 hospitality licensees and 53,000 in retail, which won its parallel case, to ask them to make refund claims. Despite PPL’s appeal, the new, reduced tariffs will take effect soon for annual renewals, so your next bill should be lower and, thanks to the two associations’ efforts, the industry should save around £5 million a year from now on for all background music played in bars, restaurants, lobbies, foyers and other common areas.

Also of note is that PPL has, since 2005/06, only charged hotels for music played in their bars and restaurants (and, as before, on a separate basis for fitness centres, etc), but not for lobbies/foyers. These will now be brought back into charge. Watch this space for more news on this area.....

Read the details of the Decision of the Tribunal at: http://www.ipo.gov.uk/ct-2009-10-19.pdf

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

New Licensing Law - Has the "Penny Dropped"?

Interesting article from the BBC's website today on the effect of the new licensing laws on tourism outlets selling gift miniatures of whisky. Mr. McAskill says that tourism outlets "make money" out of selling miniatures however it is worth noting that most of the revenue from them goes to HMRC anyway andthe mark up for profit is very low- they are sold in tourism outlets as part of their service to the tourist experience. Tourists like to buy them to take home as souvenirs so why should tourism outlets selling such gift souvenirs be subjected to the same rigorous rules as for the pubs, clubs and off-licences? It's also worth noting that the new licensing law is supposed to crack down on binge drinking so it's difficult to imagine that someone intent on binge drinking would bypass off-licences and supermarkets where alcohol is cheaper and go straight to a tourism outlet to purchase a large volume of miniatures to consume in a binge drinking session! It's good to see that as the deadline now looms for the new law to come into force on 1 September, these particular issues, specific to the tourism industry, are being recognised or at least being given higher profile press attention.

See the article at: http://news.bbc.co.uk/1/hi/scotland/8175895.stm

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

Postponement of Scottish Licensing Law Reform

Justice Secretary, Kenny McAskill has confirmed that it would be "common sense" to postpone the enforcement of the new licensing law on 1 September 2009, requiring premises selling drink to have a designated manager with a personal licence to sell alcohol.

The legal position now is that those who have applied for a personal licence by the end of August can carry on trading after September 1, allowing those who have not yet received their licence to continue selling drink. Mr McAskill has "taken the decision to lay further regulations to give some leeway and allow managers who have applied by the end of August to continue selling alcohol if they have not received their licence by September 1." Prior to Mr. McAskill's decision to make this change, the position was that if you did not have a licence by September 1 then you could not sell alcohol and if you did so, you would have fallen foul of the law, facing some hefty penalties.

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

Licence Delays means Scottish Pub Closures unless....

Yet another article this morning, on this topic from the Morning Advertiser:

"Thousands of pubs in Scotland could be forced to cease trading in September as administrative delays mean licensees have been unable to comply with new regulations..............." read more by following this link:
http://www.morningadvertiser.co.uk/news.ma/article/83806

Having sat the exam and passed my Scottish Personal Licence Holders Course, I can confirm it is not a difficult course or exam and if you already work in the licensed trade then it should be even easier. Furthermore depending on the level of your income, you could even get funding of up to £200 which is more than enough to cover the cost of a recognised course provider. It is well worth dealing with now rather than leaving it all too late and if you can get the funding it means investing a day of your time, otherwise, the cost is quite bearable at around £150 per person for the course. Remember also that as long as one person in the organisation holds a Personal Licence, then that person is qualified to train all the other staff too so you don't have to send every single member of staff involved in the sale and supply of alcohol to these courses.

If you are struggling to get on a course, then I can help by carrying out staff training for you - just give me a call for further information. Contact information is available on my website.

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

Second Jobs and The Working Time Regulations Trap

The recession has prompted many people to seek a second job to supplement their incomes and this can have implications for employers under The Working Time Regulations. Under the regulations, an employee is allowed to work a maximum of 48hours per week averaged over a 17 week period unless extended by a workforce or collective agreement. However employees can opt out of the 48 hour maximum but they can't be forced to do so, plus if they do voluntarily opt out, they can also opt back in at any time by giving notice to their employer. What some employers do not realise is that the limit applies to all jobs an employee might have. For example, many people look for second jobs in the hospitality and tourism industry in hotels, restaurants, cafes and this trend has been on the rise in the past six months according to recruitment agencies.

It is important therefore that employers check if their current employees are undertaking additional outside work, and if they are, then it would be good practice to inform them that if they are to work more than 48 hours a week on average, in all their jobs, then they will need to sign an opt out agreement. Employers might also consider reviewing employment contracts to include a clause in future which will require employees to get specific permission before accepting futher work elsewhere.

If employers consider recruiting seasonal staff even if only temporarily, it would be wise to discuss with them the amount of other work they do and if necessary ask them to sign an opt out agreement. Also remember that the opt out agreement only covers the 48 hour maximum and all other statutory requirements such as a minimum break of 20minutes in any 6 hour shift etc all still apply.

The other thing to remember about The Working Time Regulations is that they come under Health and Safety and not employment legislation so even if employers have signed opt out agreements they remain responsible for employees health and safety at work ie the need to make sure employees are not too tired to carry out their duties safely and correctly.

Contact me if you need help with opt out agreements or reviewing your employment contracts.

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

Minimum Alcohol Prices may Violate EU Rules

The Scottish Government's plans for minimum alcohol prices may violate EU rules according to Baroness Ashton, the European Trade Commissioner. Legal analysis provided by Baroness Ashton to the Tories, states that plans by the Scottish government to introduce minimum alcohol prices may violate international trade laws. She said that the plans would increase the price of imported goods to the same level as that of products made in Scotland, violating EU and WTO laws. The plans would not violate existing laws if they did not affect imported goods.

In response to this, a Scottish Government spokesman said "The key is to ensure that our proposals are fair and proportionate in reducing the health problems caused by alcohol".

Hmmmm, what proposals do you think will be fair and proportionate?

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

British Hospitality Association

The British Hospitality Association has published a voluntary code of practice for members to disclose the distribution of discretionary service charges and non-cash tips as soon as practical but ahead of the introduction of new legislation which bans the service charge being used to make up the National Minimum Wage, with effect from 1 October:

"BRITISH HOSPITALITY ASSOCIATION

CODE OF PRACTICE ON DISCRETIONARY TIPS AND SERVICE CHARGES


What is discretionary service charge?

This is a payment suggested by the restaurant, which the customer is totally free to make or not. The payment is made to the restaurant (or similar establishment) by cash, card or cheque. It is not a cash tip (see below).


What are tips and gratuities?

These are additional payments given by the customer over and above the amount of the bill and any discretionary service charge. They fall into two categories: cash tips (see below), given to an individual employee, or non-cash tips, being additions to the amount on the bill and paid to the restaurant, whether by card or cheque.


How should cash tips be dealt with?

Cash tips are payments given directly by customers to individual employees, not to the restaurant (or similar establishment). Any arrangement for sharing cash tips among employees should be in accordance with their wishes. The restaurant owner will not be involved in this process. It is the responsibility of the employees receiving such cash tips to make proper disclosure to HM Revenue and Customs and to account for Income Tax in respect of these earnings.


What deductions may be made from discretionary service charge or non-cash tips paid to the restaurant before they are made available for allocation to employees?

There is no legal requirement for the restaurant to allocate a particular proportion of the service charge or tip income to employees. However, a deduction for costs incurred in handling these sums would cover credit card and banking charges, payroll processing costs, and the average costs of credit card fraud. The level of costs deducted will vary, depending on the nature of the business. Any deductions made by the restaurant over and above those for these costs should be disclosed to customers as part of the disclosure process (see below).


How should discretionary service charge and non-cash tips be paid out?

Where discretionary service charge and non-cash tips are paid to employees by the restaurant, they are most commonly paid from the restaurant’s bank account, with Income Tax deducted under PAYE. The broad process for distribution of these amounts should be disclosed to customers as part of the disclosure process (see below).


What disclosure should be made?

Restaurants should disclose to customers how they deal with discretionary service charge and non-cash tips, at least by a written note available for inspection at each restaurant and on the restaurant’s website, if there is one.

The disclosure should cover:

i) Whether an amount is deducted for handling costs (and how much);

ii) How the remainder is shared between the restaurant and the employees;

iii) The broad process for distribution, for example, that they are shared between the employees in the restaurant through a system controlled by a representative of the employees.


British Hospitality Association

July 2009"


Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

Coping with Sudden Death at Hospitality Facilities

The following is an article I came across this morning from the Institute of Hospitality:

"Similar to the railway industry and mental health care services, the hospitality industry and its employees have an increased probability of discovering a sudden death on their premises, whether from natural causes, suicide or even murder. Hospitality owners, operators and staff should therefore be prepared to address the likelihood of a sudden death.

In response, the Institute has created a new guide entitled Coping with Sudden Death at Hospitality Facilities. The guide was compiled with Christopher Hume, NHS Westminster PCT; the Samaritans, a charity providing emotional support; and Institute Fellows Michael Shephard, General Manager at the London Hilton on Park Lane, and Christopher Rawstron, Vice President of Operations at IHG.

The guide discusses procedures that can be put in place, the essential roles played by staff and how to assist the emergency services. More importantly, the guide reviews the follow-up required to minimise the effects of a traumatic event on employees, guests and the business.

Find the new guide in the Institute’s Online Catalogue or within the ‘Publications’ tab on our homepage at www.instituteofhospitality.org"



Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

Licensed Premises Face Closure

Many licensed premises face being closed on September 1 when new licensing laws come into force under The Licensing (Scotland) Act 2005. Under the new law anyone involved in the sale of alcohol in pubs, clubs, hotels and off-sales must hold a new “personal licence”. Thousands of staff may miss meeting the deadline to comply with the Act. It is estimated that around half of licensed premises in Scotland have still not arranged the necessary training, examination and certification for their staff.

They have less than three months to go through the process of arranging the training, examinations and applying for the personal licences which includes a police check being carried out as to the individual's suitability to hold a personal licence.

Licensing Boards will have no option but to close premises which are found to be operating from September 1 without a personal licence holder. And they will remain closed until their appeal (if any) is heard by the Board.

The training involves a one-day course covering key aspects of responsibility, including dealing with drunkenness, preventing crime and disorder, rights of entry and advice on underage drinking. This is followed by a 40-question multiple-choice exam. Staff can then apply for their Scottish Certificate for Personal Licence Holders, which costs £50. Following a police check, the certificate is then issued by the Licensing Board.

There will of course be those premises which no longer require a licence because they have or are either closing or because the turnover does not justify applying for a new licence.



Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

Annual Leave on Sick Leave

The long awaited decision in Stringer v HMRC has been made today by the House of Lords in favour of employees, overturning the previous Court of Appeal decision in this case.

It has been unanimously held that a claim for unpaid holiday or a payment on termination of employment are both unauthorised deduction claims. As a result of this decision employees can benefit from the longer time limits which apply to unlawful deduction claims which can be made within three months of the last in a series of deductions - that would allow a claim to go back more than three months if the underpayments were part of a series.

In a previous ECJ decision a member state could allow an employee on sick leave to take annual leave or could prevent the employee taking leave while off sick but only so long as the employee had the right to carry over holidays to following year/s if he or she was unable to take leave because of illness. The ECJ had also held that compensation payments on termination should not be discounted on account of sickness.

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

Health & Safety Executive - New Strategy Launched

The new HSE strategy Be Part of the Solution has been finalised following a three-month consultation programme, with events held across the country. It is hoped that it will reduce the number of workplace accidents, dispel myths about health and safety and promote a common sense approach to ensuring that risk management is an enabler for business, not a burden. In addition to preventing accidents, 65% of employees say that good health and safety practices make them feel valued.

The recession could make some workplaces more dangerous, as more than a quarter of business leaders say that that their organisation will face pressure to cut spending on health and safety this year. This is not only potentially dangerous but could also be bad for business; nearly eight in ten business leaders acknowledge that good health and safety standards are beneficial. In part this is because the cost of preventing accidents is almost always less than the costs associated with an accident once it happens.

Almost half of Britain’s workers know someone who has been injured at work, yet the actual rate of deaths and serious injuries is greatly underestimated. On average, employees think that 3,000 people were killed or seriously injured at work last year, but the true number is 136,000 – more than 45 times higher.

Judith Hackitt, CBE, HSE Chair, said "We believe this strategy represents a clear statement of core principles and a sensible approach to health and safety in Great Britain. Whilst the economic climate is difficult and the temptation for some may be to cut corners, HSE, its partners and businesses must resolve to continue to strive to improve health and safety performance."

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

Lack of Licensing Applications by Pubs & Hotels

The Scottish Beer & Pub Association have revealed that at least a fifth of pubs and hotels in Scotland have not lodged their licensing applications.

Under the Licensing Act 2005, licensees had to apply for a new premises licence in order to be able to sell alcohol by January 16. 3,100 of the anticipated 16,306 applications, which should have been lodged in the first 12 months of the licensing transition were not received. The Association believes that is because the cost and complexity of the new Licensing (Scotland) Act 2005 has discouraged pubs from doing so, and because a large number of premises have already ceased trading. Moray, the Shetland Islands and Orkney had the largest number of pubs failing to submit applications.

It will however only be on 1 September this year that a full assessment can be made of how many hotels and pubs have actually made the transition.


Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

Employees Working Off Site - Liability under Provision and Use of Work Equipment Regulations 1998?

The House of Lord have issued their decision in Smith v Northamptonshire County Council - a case concerning an employee injured on a crumbling wooden ramp while wheeling a wheelchair user (Mrs Cotter) from her home to the minibus driven by the employee who also worked for the Council as a carer. The ramp in question had been installed by the NHS some 10 years earlier and had a latent defect in it. It had been inspected by the Council but not for the purposes of these Regulations. The House of Lords held that unless the equipment in question, ie the ramp, was actually in the "control" of the employer then there was no liability. In this case the Council did not install the ramp, did not have any responsibility maintain it and had no control over it's maintenance or use. For that reason, the House of Lords decided in favour of the council because it did not have the necessary level of control over the ramp and so were not liable under the Regulations.

So, from this point of view, businesses can relax because they will not be held liable for equipment used by their employees whilst working off site, which is not within their "control".

Their Lordships also considered the principle behind the Regulations which is that they are there to promote employees health & safety and not to give employees a right to claim compensation.

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

Minimum Alcohol Pricing

Interesting article in The Telegraph today on the continuing debate surrounding minimum alcohol pricing - see: http://tinyurl.com/ofcomf.


Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

Keeping a weather eye out....

There is an important legislative proposal by the EU in relation to the display of Energy Performance Certificates, in the draft Recast Directive on Energy Performance of Buildings (COM (2008) 780 Final).

At the moment Article 7 of Energy Performance of Buildings Director 2002 only applies to public authorites and public services where the floor space is over 1,000 square metres . The legal requirement is that an Energy Performance Certificate must be displayed in a prominent position clearly visible to the public.

The proposed legislation looks to widen that requirement to premises which are "frequently visited by the public" and proposes to reduce the floor space from 1,000 square metres to 250 square metres. If this proposed legislation is passed, it will catch private sector buildings as well such as hotels, shops, and offices.

The timetable for the proposed legislation is for member states to implement it in their national law by 31 December 2010 for public authorities and public services, and all other premises by 31 December 2012. It would be a good idea to look out for the government consultations when change is proposed to the domestic law so that any issues or unintended consequences of the law can be dealt with at an early stage.


Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

National Minimum Wage & Tips, Gratuities etc

BERR has just issued the Government's Response to its Consultation on Service Charges, Tips, Gratuities and Cover Charges. The National Minimum Wage Act 1998 came into force in 1999 and since then it has been legal to use service charges, tips, gratuities and cover charges towards payment of the national minimum wage when payment is made through the employer's payroll.

The responses to the consultation came from a broad spectrum of interested parties: from individual customers, to business and trade unions and bodies. Unsurprisingly, those on the employee and customer side support the change in the law while business and trade bodies suggest delaying the change until the economic climate improves. However, the majority of responses support the change. So on that basis, the government, having taken evidence from stakeholdes and having carried out an impact assessment, believes the time is now right to change the law to create a level playing field in wages paid by employers. The government's response states that it will also create equity for employees, plus create transparency for the customers leaving tips in good faith for the employee so that they will know how their money is to be used.

The government states it is working with the Hospitality, Leisure and Service Sectors to ensure there will be no unnecessary additional administrative burdens on employers.

The change in the law will come into effect on 1 October 2009. (The current National Minimum Wage is £5.73 per hour.)

How will it affect your business? Will it cost you more or are you already paying tips in addition to the national minimum wage?

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

Working Time Directive

MEPs and EU governments failed to agree a draft Directive amending the 48 hour individual opt out and ‘on call’ time rules means the opt out stays in force probably for many years and without fresh restrictions (on how and when it can be signed and on annual renewal). This is good news as it applies to around 120,000 hospitality employees.

Employees can still be asked to “opt out” and be able to work more than 48 hours a week, but they continue to have the right to reject this request or change their mind on no more than three months’ written notice, without suffering any adverse treatment as a result.

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

Raise the Bar

Cabinet Secretary of Justice Scotland, Kenny McAskill, MSP, key note speaker at today's Bar Scotland Show in Edinburgh spoke of his vision for managing alcohol consumption in Scotland for the benefit of the nation's health, public finances, and generally in the public interest. He said that "alcohol misuse-not use" has a detrimental effect on the healthcare system and costs. He was pleased to see that the transition period to the new licensing regime is progressing "smoothly" which contrasted with the panel session earlier where many on the panel and in the audience expressed their concerns at the inconsistencies in policies and decisions of licensing boards across Scotland.

The subject of the proposed Social Responsibility Levy was also debated in an earlier Question Time style Strategy Session. The general consensus on the panel was that social responsibility should really lie with the individuals abusing alcohol and not just the licence trade. Mr. McAskill stated that the imposition of such a levy on the licence trade was some way off with a "number of issues still to be fleshed out". He informed the audience that the government will take the current economic situation into account and that a social responsibility levy would not be imposed "until the economy warms up".

The Cabinet Secretary expressed his concern on the growing trend of more people opting to drink at home rather than go out. He said that this is obviously the cause of the "irresponsible" cheap pricing of alcohol in supermarkets. As a result more alcohol is consumed at home than would be the case if people went out to pubs and clubs where they would be drinking alcohol in a controlled environment and where it would be more expensive. (So, state control appears to be the motivating force here). Mr. McAskill said "alcohol should not be cheaper than a bottle of water". He said that high strength alcohol at cheap prices has to stop so that health problems can be reduced. Home drinking is more of a problem than the pubs and clubs. Mr McAskill quoted the Strathclyde Police who have named a certain well known brand of bottled beer as "wife beater". He wants a "radical new approach" with clear mechanisms in place and would prefer to see people going out and enjoying a social drink in pubs, cafes, clubs and restaurants, rather than drinking heavily at home.

He remained committed to bringing in a minimum pricing regime but now by a different legislative route. He talked of the need to persuade the public, colleagues and parliament on the benefits to the nation's health from minimum pricing. £2.25bn is the figure he put on the cost of alcohol misuse.

He was keen to point out that pubs are an important part of all communities whether urban or rural and recognises the "difficult journey" the licence trade has to undertake in the current economic climate. He would like to see a vibrant pub trade where people can go to enjoy a drink whether it be a coffee, soft drink or alcohol - not places where people will abuse or consume alcohol as quickly as possible.

When I asked if the government have comparative data from other countries where minimum pricing may already have been introduced as a possible tool to "persuade, educate and change the culture" Mr. McAskill replied that there is comparative data from places such as Canada and the Scandinavian countries, but they do not have the same level of abuse as we do in Scotland.

Do you think minimum pricing should be imposed on alcohol?

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

New Health & Safety Poster

The current version of the Health & Safety Poster has been revised by The Health and Safety Executive (HSE). Employers can now purchase copies of the HSE’s new health & safety poster (http://www.hse.gov.uk/pubns/books/lawposter.htm). The new posters, according to the HSE, are “modern, eye-catching and easy to read. They set out in simple terms, using numbered lists of basic points, what employers and workers must do, and tell you what to do if there is a problem.”

Under the Health and Safety Information for Employees Regulations (HSIER) employers have a legal duty to display the poster in a prominent position in each workplace or provide each worker with a copy of the equivalent leaflet outlining British health and safety laws. In other words it is the employer's duty to ensure their employees are fully aware of workplace health & safety requirements. The leaflet that employers can give to workers, instead of displaying the poster, will be in the form of a pocket card that is better suited to the workplace.

The current poster and leaflet from 1999 are not visually attractive enough to prompt it to be read, according to recent research. There should be a significant benefit to employers and employees by increasing awareness and understanding of this area of law. The new design should also mean less admin work and cost for employers.

Existing versions of the poster and leaflet can be used for up to 5 years from the effective date of the new poster which came into existence on 6 April 2009 ie. until 5 April 2014 but only if they can be easily read and the relevant contact information is kept up to date. You can get this information from Infoline on 0845 345 0055.

As from 6 April 2009 only the new health & safety poster and new pocket cards are available to purchase.

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

Hoteliers - Health & Safety

The Health and Safety Executive (HSE) and the Institute of Directors (IoD) have issued guidelines http://www.hse.gov.uk/pubns/indg417.pdf to draw attention of directors and businesses to the importance of good health and safety practices and procedures in the workplace. It is a short guide providing a summary of legal liabilities, a checklist of key questions for leaders, and a list of resources and references for implementing the guidance in practice.

Research conducted by Databuild on behalf of the HSE indicated that only a quarter of business leaders surveyed knew about the guidelines. Hotels and catering organisations were amongst the lowest when it came to awareness of the guidance. So, might it be worth your while taking a few minutes to read it for yourself and be aware of it? Let me know what you think....

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

Retirement Law

Can employers lawfully force employees to retire at 65?

The European Court of Justice (ECJ) has sent that question back to the UK High Court in the long awaited "Heyday" case. (read the decision at http://curia.europa.eu/en/actu/communiques/cp09/aff/cp090019en.pdf)

The ECJ has ruled that it is for the national court to decide whether the UK legislation based on the EU Directive has a "legitimate aim" in terms of employment policy and labour market objectives.

The charities Age Concern and Help the Aged behind the case were hoping that the retirement age of 65 be abolished but it is now up to the UK High Court to rule on whether the government's default retirement age has a "legitimate aim".

The two charities felt that the UK had not properly implemented the EU Directive in the UK legislation (the Employment Equality (Age) Regulations 2006) because they allow forced retirement and that employers have too much scope for age rules which work against employees reaching retirement age.

For the Employees: There are a large number of cases awaiting the final decision of the High Court and if it rules that the compulsory retirement age is illegal then many older employees who have been forced to retire may be able to claim compensation from their former employers.

For the Employers: On the other hand, there are signs that the UK High Court will confirm that the UK government has properly implemented the EU Directive, and that employers can use the default retirment age of 65.

Do you think retirement should be compulsory at 65? Post your comments now.

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

Licence to Kill....

......much needed income for business, that is.

It wasn’t as if the government hadn't been pre-warned! The predicted and unintended consequences of the new licensing laws appear to be coming to fruition. Some high profile tourist attractions will stop selling little tourist gifts of whisky miniatures because of the unproportionately high cost of getting a liquor licence under the new laws. The Scotsman (http://thescotsman.scotsman.com/scotland/Tourist-sites-pull-plug-on.5008372.jp) has reported that Historic Scotland has decided not to renew its licence for selling alcohol at 16 tourist attractions: Tormiston Mill, Corgarff Castle, Fort George, Blackhouse, St Andrews Castle, Edzell Castle, Castle Campbell, Aberdour Castle, Huntingtower, Dunstaffnage, Inchcolm Abbey, Caerlaverock Castle, Dryburgh Abbey, Jedburgh Abbey, Melrose Abbey and Linlithgow Palace.

The cost of getting a licence can be as high as £10,000 due to architect and legal fees which has caused this government agency to cut back as it has.

They are not alone - The National Trust for Scotland is doing the same at Brodick Castle on Arran, Ell Shop in Dunkeld and Priorwood Gardens in Melrose.

The tourism industry has, vociferously and on many occasions, brought this problem to the government’s attention but all in vain, it seems.

Just what we need for the much acclaimed Year of the Homecoming! What better product is Scotland known for other than whisky? It is synonymous with something like the Homecoming but visitors are going to be disappointed when they discover that the nation’s major tourist attractions don’t actually sell the stuff! Oh well, hey ho…..maybe they'll buy the tartan dollies instead huh?

I know from almost first hand experience how difficult and costly it is to get the necessary licence under the new licensing laws. David, my husband, has recently managed to successfully obtain the liquor licence for the top tourist destination he manages in Angus, Glamis Castle (http://www.glamis-castle.co.uk/). I know from discussing his experiences of their licence application that it was a complex task. I was able to help by providing background information about the legislation.

David has been at the forefront of the tourism industry’s campaign to highlight these unintended consequences to the government and I know he is not surprised about this latest development. Extremely passionate about tourism, he has unlimited energy when it comes to selling Scotland as a major tourist attraction both nationally in the UK but across the world. He has travelled the length and breadth (well just about) of the world with kilt packed neatly and weighing heavily in his suitcase to promote Scotland. Visitors to Glamis Castle come from just about every corner of the world and so it was crucial for them to be able to offer tourists not just the national product, whisky, but also the more civilised glass of wine with lunch which visitors from many other countries enjoy without getting legless or causing any problems of the type that the new licensing laws are designed to stop. Thanks to his efforts visitors will continue to enjoy the Scottish experience.

However, I suspect that it won't just be Historic Scotland venues who will be unable to fulfil visitors' expectations of the Scottish experience but also the lovely little cafes and restaurants privately owned around Scotland where one could normally enjoy a lovely lunch with a glass of fine wine!

What do you make of all this? Look forward to hearing your views...

More on Tips

Employers in the hospitality industry have made a last-ditch attempt to get the Government to delay introducing new laws that will make it illegal to use tips to top up the national minimum wage. The BHA is asking The Department for Business to do this as this week sees the end of a three-month consultation on the proposals.

The department reports that the initial feedback from the consultation suggests that there was “significant support” for the proposals, set to cost the industry between £7m and £73m a year.

However, the British Hospitality Association (BHA) has warned that the true yearly cost would be nearer £400m, and that the industry needed more time to absorb the impact.

“We believe the consultation paper seriously underestimates the number of people involved, and the cost to employers,” said a BHA spokesman. “There is little doubt that the legislation will go through, but we are saying this is not the right time to do it.”

Last week, the Unite union held a demonstration outside the House of Commons calling on the Government to close the loophole. A YouGov survey of nearly 2,200 consumers, commissioned by campaign group Consumer Focus, revealed that 94% believe all tips “should always go to the staff with no deductions by restaurant owners”.

Len McCluskey, Assistant General Secretary of the union Unite, said: “The Government must ensure employers give a decent living wage, with 100% of tips added on top.”

The Government is already cracking down on employers who fail to pay the minimum wage in full. This week a South Yorkshire hotelier was fined £2,500 for breaching minimum wage legislation. Ahmed Yassine, who runs the Phoenix Hotel, Rotherham, was fined after being found guilty of failing to keep required records and failing to produce appropriate documents when asked by officials from HM Revenue & Customs.

FSB Warning of new Business Laws

The Federation of Small Businesses (FSB) is urging the Government to delay new laws such as extending flexible working to parents of children up to age 16, which they say could cost small businesses nearly £800m a year. They are asking the Government to hold off on passing new laws on the next business law start date, because it will only put more financial pressure on already-struggling small businesses.

In a recent poll of FSB members, one in four said they believe small firms will pull the UK out of recession. However, the FSB is concerned that they will be unable to do so, or to retain or employ extra staff if they are burdened by new legislation. The FSB is calling for the Government to review the introduction of the following laws:

- Extending flexible working to parents of children up to the age of 16;
- Increasing staff holidays by four days;
- Switching gas watchdog from Corgi to Capita;
- Changes to Home Information Packs; and
- Extra Waste Control measures.

The FSB believes that a recession is no time to be making changes to existing laws, which will have such an enormous financial impact on small firms.

With two common commencement dates each year, the FSB wants to see a moratorium on new employment law until October. The FSB has urged the Government to take a “common sense approach”, and assess the economic situation and consequences this could have on small businesses before new legislation comes into effect later this year.

John Wright, National Chairman at the Federation of Small Businesses said:

"The cost of new laws to small businesses this year is huge. Small businesses should be concentrating on keeping jobs, rather than spending time and money carrying out paperwork.

"The FSB demands that the Government reconsider all regulation that will cost small firms and help our small business community thrive. This is no time to hold small businesses up with extra costs and burdens. The Government should wait until October to see if the economy is in a stronger position to cope with this added pressure.

"In these tough economic times, small businesses are already battling with red tape; with the burden and confusion of existing legislation. In 2008, we saw 57 new or altered pieces of regulation affecting small companies. A similar number is expected this year. The small business sector is confident it can help pull us out of the recession. Suspending legislation that could cost small firms up to £800m will allow them to concentrate on getting the economy back on track."

New Rules for Maternity Leave

More good news for mums to be though I guess not for all employers! There are plans afoot to update the existing maternity laws giving mums longer maternity leave which they can take before or after the baby is born with the guarantee of returning to the same or equivalent job.

Minimum maternity leave, according to plans by the EU's committee on Gender Equality, would increase from 14 to 18 weeks across the EU. Further, women would be paid 100% of their salary with self-employed women for the first time also benefitting from the same rights.

The new rules could be in place by 2011 if agreement is reached between member states and the European Parliament.

Tips and Tax

The Court of Appeal judges are considering their decision on a challenge from the Mayfair private members’ club, Annabel's, to an Employment Appeal Tribunal (EAT) decision last year that tips cannot be used to make up the National Minimum Wage. Apparently the club's tips system is known as a ‘tronc’ scheme under which tips are centrally organised. Under such a scheme employees and employers didn't have to pay National Insurance contributions and customers did not have to pay the VAT on the tip.

Tipping is an important topic for the hospitality sector - more to follow once the Court of Appeal has made its decision.

Holidays and Sick Leave

Good news for employees, not so good news for employers - the European Court of Justice (ECJ) has passed down its opinion in Stringer v HMRC (previously known as Ainsworth v HMRC that workers on long-term sick leave are entitled to paid holidays. Yesterday's ruling means that all workers are entitled to up to four weeks of holiday pay for each year they are on sick leave. The ECJ said: “A worker does not lose his right to paid annual leave which he has been unable to exercise because of sickness. He must be compensated for his annual leave not taken.”



A worker returning to work after a year’s sick leave will be entitled to four weeks paid holiday carried forward from the previous year in addition to any holidays they are entitled to for the year ahead. Also if an employee resigns or loses their job while on sick leave is entitled to a lump sum payment in lieu of holidays accrued but not taken while they were sick, in addition to any redundancy or termination payment. The ruling applies only to statutory minimum holiday entitlement.



It will now be up to The House of Lords to give the final judgement which will probably overturn the Court of Appeal's decision from April 2005 which at that time was that the right to paid holiday leave did not accrue during periods of sickness absence.

Health & Safety Offences Act 2008

The new Health & Safety (Offences) Act 2008 comes into force this Friday which means that careless bosses and their employees might end up in prison if there are serious breaches of health and safety rules (previously punished with fines). It could now mean a prison sentence of up to 2 years. If an employee is found to have contributed to an offence under the legislation then he or she could also end up in prison - this is even if no harm is sustained by the "victim" because of their actions. Businesses must become more aware of health and safety matters. This new Act is hailed as a deterrent for those business who perhaps due to the downturn in economic activity, may think of cutting back on training etc.
Brian Nimick, CEO of the Briths Safety Council said: “With the new risk of higher fines and possible imprisonment for health and safety offences, this law should act as a deterrent and increase awareness of the need to adequately train and protect workers. Risks including accidents, illness and even deaths among the workforce could cost far more in the long term than the short term savings gained from cutting back on training.”

www.adams-law.co.uk