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Parents are taking a short-sighted approach to term-time holidays

Press Release Press Releases 5 September 2024

By Colin Adamson, Associate Solicitor, Palmers Solicitors

As pupils return to school and a new academic year starts, it’s a time of year when many parents are either considering taking their child on a term-time holiday, have recently done so or are planning ahead to the weeks leading up to Christmas.

This has been a hotly debated topic in recent weeks, with many parents facing fines for their child’s unauthorised absence during term-time.

Children between the ages five and 16 are legally required to receive a full-time education in term time, so an unauthorised absence may be interpreted as disrupting this. The Department for Education (DfE) estimates that 89 per cent of fines for unauthorised absences are for term-time holidays.

However, term-time trips are popular among parents as costs can skyrocket during school holidays – often pricing some families out of going away altogether. For this reason, term-time holidays remain popular despite the risk of a fine or legal action.

Is this the right way forward?

The fierce debate

Opinions are strong on all sides of the debate around term-time holidays. Arguments are largely unconcerned with the law, because the law says what it says – i.e. that unauthorised absences are not permitted.

For many, the cost is such that parents will risk the fine. The debate itself is whether it is morally acceptable to take children out of school for a holiday and whether this will materially impact their education.

On the one hand, many people argue that a short period of absence, particularly when the child is younger and not doing formal examinations such as GSCEs, won’t have much of an impact on their long-term education – whereas spending time with family on holiday may materially boost the child’s wellbeing.

Many parents, particularly those working in tourism-aligned businesses, cannot take holiday during peak times – which largely coincide with school holidays.

On the other hand, education holds tremendous value for children and society as a whole, so taking away from that is often seek as irresponsible.

The law as it stands

Setting aside the ethical debates, a term-time holiday is not one of the permissible reasons for taking children out of school. The school is unlikely to give prior permission as holidays are not considered an exceptional reason.

Under current arrangements, parents of children who miss school for an unauthorised reason risk being fined £80 per parent per child per day if paid within 21 days, and £160 if paid within 28 days.

A second fine for the same child within any three-year period will be charged at the higher £160.

A fine can be issued for any unauthorised absence but is more likely to occur when you have clearly taken your child away for a longer period of time for a non-essential activity such as a holiday.

If you fail to pay the fine or reach the cap of two fines per parent per three-year period, you may be prosecuted under the Education Act 1996. This could result in a fine of up to £2,500 or even a custodial sentence for repeated offences.

While this is rare, it’s easy to see how parents who book term-time holidays every year can end up on the wrong end of a court case.

In extreme cases, social services may also involve themselves to ensure that your child is receiving an appropriate education and aren’t being disadvantaged by the family holiday.

The implication for parents and children

In the absence of heavier penalties, the choice lies with parents, ultimately, as to whether their child goes on a term-time holiday.

However, it’s important for them to remember that the law is very clear on children getting a full-time education. The school and local authority are likely to waste no time in getting involved to make sure your child is getting the education they legally require and deserve.

I generally recommend that parents avoid taking children out of school for term-time holidays. While there is an argument to be made for the occasional absence, it is not worth the legal implications.

Additionally, repeat holidays in term-time can have a major impact on your child’s education and result in them missing out.

Ultimately, it’s hardly a saving over a summer holidays trip if you end up with a four-figure fine or even a prison sentence.

For advice on the law on education and child absences, please contact me at ColinAdamson@palmerslaw.co.uk.

Consumer rights in the post-summer travel period

Press Release Press Releases 2 September 20242 September 2024

By Colin Adamson, Associate Solicitor, Palmers Solicitors

The summer holidays are almost at an end, but the travel season is far from over. September is a hugely popular time for taking to the skies, particularly among those with adult children or those without children.

However, with flight and hotel bookings comes the inevitable cancellations that unfortunately face a small minority of customers. From a consumer rights perspective, this is certainly an interesting time of year.

A case of mistaken pricing

We’ve recently seen two fairly high-profile cases of travel arrangements being cancelled which have raised questions around the rights of consumers and brands.

The first, in which a small number of Qantas customers were briefly able to book first class tickets for a fraction of the normal cost, saw consumers downgraded (based on the tickets they held) to business class – which was worth considerably more than the price of their tickets.

Qantas said that this was due to a computer error and that it would honour bookings made, in business class instead of first, or offer a full refund.

This seems fair on the face of it, but let’s dig deeper. The airline terms and conditions state it is entitled to cancel a booking and offer a refund when it is ‘reasonably obvious’ that an error in pricing has been made.

What does the airline define as reasonable? The dynamic nature of airline pricing coupled with the absence of a set numerical definition of reasonable means that consumers who have planned a trip or booked accommodation around their flight lack protection and the recourse to argue that they made the booking in the belief that the price was genuine.

This also shifts the onus of realising the mistake onto consumers, although this is both allowable and a prudent move commercially.

Securing accommodation

Hotel chains in Manchester have also been recently criticised for supposed cancellations of existing bookings in order to raise prices on the dates that Oasis will play the city.

Some consumers have faced the disappearance of their bookings, more commonly, cancellations due to overbooking.

While frustrating, there is little in the way of protection for consumers for overbooking – as not cancelling the booking could result in unsafe overcrowding.

As long as a refund is offered, consumers can sadly do little to recoup the logistical losses that a cancellation could entail.

Recourse for consumers

When consumers are faced with cancellations or disruption to their plans, what is available to them to prevent losses?

Generally, when a cancellation of accommodation or transport is due to provider error or unavailability on the part of the provider, consumers are entitled to a full refund, as the service has not been provided.

The issue with both of the cases highlighted here is not, in fact, the financials of it all. Rather, these consumers are facing inconvenience and disruption that does not necessarily hold a financial value.

Additionally, then, providers may be able to offer a suitable alternative in place of a refund where a refund would not solve the issue of the service not being provided.

This is generally allowable for most services, on the basic principle that appropriate funds have been exchanged for a suitable service or product.

When travelling and booking transport and accommodation, consumers should be particularly careful to note cancellation policies and the rights of the provider, to avoid situations where they are left high and dry.

For further advice on consumers rights, please contact our team today.

The Draft Equality (Race and Disability) Bill – What it means for you

Palmers Solicitors Business News 29 August 202429 August 2024

During the King’s Speech on 17 July, laying out the Government’s priorities for the coming year, the King announced that “Legislation on race equality” would be published in draft “to enshrine the full right to equal pay in law”.

This relates to the proposed Draft Equality (Race and Disability) Bill, which aims to take a significant step towards true workplace equality for all in the United Kingdom.

Now and then: existing and proposed measures

Currently, there is a duty on employers not to discriminate against employees and workers under the Equality Act 2010 on the basis of both their race and disability, however it can be difficult for employees to bring claims in relation to equal pay on this basis.

The briefing notes for the King’s Speech set out the reasoning behind the need for this legislation.

“Most ethnic minority groups earn less than the White British group. Between 2012 and 2022, for example, Black, African, Caribbean or Black British employees consistently earned less than their White counterparts.
Although there has been growth in employment rates for disabled people in recent years, disabled people have, on average, lower incomes than non-disabled people. According to the Office for National Statistics, there was a gap of 13.8 per cent in 2021 and 14.1 per cent in 2019 between median pay for disabled employees and non-disabled employees.
Building on the success of the gender pay gap reporting, mandatory ethnicity and disability pay reporting for large employers will expose pay disparity, encouraging employers to take action and coupled with additional equal pay protections allow those who are being underpaid, with greater legal certainty to make a claim.”

Currently in addition to the obligations on employers not to discriminate against employees based on the protected characteristics.

Defining equality

“Equal work” is split up into “like work”, “work rated as equivalent” under a job evaluation scheme (JES), and “work of equal value”. There is a special procedure for deciding whether two jobs are of equal value, which can make bringing a claim for unequal treatment difficult.

Equal pay law operates by way of “equality clauses”, which are treated as incorporated into every contract of employment. There are three types of equality clauses in the Equality Act 2010:

Sex equality clause – This gives the woman the benefit of more favourable terms enjoyed by a man (or vice versa) in the same employment doing equal work, unless the difference is due to a non-discriminatory “material factor”.
Maternity equality clause – This gives the woman the benefit of a pay rise, or a pro rata entitlement to a bonus, that would otherwise have been denied to her during maternity leave.
Pensions equality clause – On 1 January 2024, pension equality provisions were inserted into the Equality Act 2010.

This does not extend to ethnic minorities and those living with a disability.

It appears that the proposed new Equality (Race and Disability) Bill will explicitly address this.

Concerns from employees

We understand that employees may have questions and concerns relating to challenging unequal pay.

The Acas “Asking Equal Pay Questions Guidance” advises that an employee who believes that they have not received equal pay should prepare a statement to send to their employer explaining what has happened and why they believe that they have been discriminated against by not getting equal pay.

To prepare the statement the employee should:

Identify the comparators who are receiving better terms and conditions than they are
Explain why the comparators are doing equal work to theirs
Ask questions about contractual pay and benefits, such as how much the comparators doing the same or similar work earn, the comparators’ contractual terms and conditions, the reason for any differences in pay and terms and conditions if there are any, such as how pay is determined and any differences in the comparators’ job descriptions
The employee may wish to also ask wider questions, such as how the employer decides pay rates, for statistics on the percentage of the workforce who are male or female and for copies of relevant policies, such as on recruitment or equality and diversity.

The employee should then send the statement and list of questions to their employer in an email or letter (or ask their trade union representative to send it on their behalf, if they have one).

If the employer has a policy on discrimination, bullying and harassment, the employee should check the policy to see if it says who they need to send their statement to. However, it could be sent to their manager, supervisor, or human resources.

The employee should confirm where they would like the employer to reply, for example, to their email address. A deadline should be given for the employer to reply, taking into account the time limit for the employee to submit their claim to the employment tribunal. This may well be extended to include the pay gap suffered by those with a disability and ethnic minorities.

The impact of reporting

The Gender Pay Gap Regulations came into force on 6 April 2017, and the current proposal appears to follow a similar format but in relation to ethnicity and disability rather than gender.

Mandatory ethnicity and disability pay reporting will apply to large employers with more than 250 employees. It is believed that this reporting brings pay gaps to the forefront of the minds of employers and enables employers to consider why these gaps exist and how best to tackle them.

Some employers have already been voluntarily publishing their ethnicity and disability pay gap reporting but many have not. Employers who have already taken steps to publish and address this may well be better placed to attract the best candidates to the role.

Full details of the proposals have yet to be set out, however it will be important for employers to get ready for the proposed reporting, including looking at systems to put in place to enable this reporting (if they do not already have these). Employers will need to consider the pay gaps within their workforce and steps that can be put in place to address these.

According to The Office for National Statistics (ONS), over the last decade, the gender pay gap has fallen by approximately a quarter among full-time employees, and in April 2023 it stood at 7.7 per cent.

It is not clear how much this can be attributed to the gender pay gap reporting. Disability and ethnicity pay gap reporting may help to reduce the pay gap but it is unlikely to resolve the problem completely.

For advice on a pay gap based on your sex, disability or race, please contact us for assistance.

When a business receives a loan, do all directors need to sign on the dotted line?

Palmers Solicitors Business News 29 August 2024

If you choose to access financing for your business through a commercial loan, it’s important to understand who needs to agree to and authorise the debt before you proceed.

Commercial loans are a common way of investing in and growing a business, but it means taking on debt, so key directors and stakeholders who will be affected by the debt should agree to the loan.

Does this mean that every director needs to agree on a loan agreement and sign on the dotted line? This depends on a company’s internal rules as set out in its articles of association and relevant shareholder agreements.

Authorisation

Generally, all directors of the borrower (the company) will need to authorise the borrower’s entry into the loan, as well as any security offered.

This should ideally be done in an official capacity and be evidenced by board minutes.

This may also be required by:

Lender’s criteria – To ensure responsible borrowing and prevent financial mismanagement, some lenders require that all directors are aware of and in agreement with the loan, particularly for larger loans.
Professional advice – In some circumstances, a solicitor or accountant may advise you to involve all directors in all parts of the process, such as when not doing so could contravene legislation or there are concerns on the part of one director.

Putting names to paper

Authorisation is only the first step towards taking out a loan and is the point at which a unanimous decision should be made regarding the next steps.

However, in terms of transactional documents, contracts and loan agreements can be signed by one director in the presence of a witness or by two directors.

This is designed to relieve the administrative burden of taking out a commercial loan, as long as all directors have verbally agreed to the loan, and this is recorded in minutes or associated documents.

However, larger loans may require all directors to be signatories to ensure that all parties are aware and happy to proceed.

Ultimately, the business itself is the borrower, rather than individual directors. While directors will not be personally liable for the loan, the long-term success of the business and associated income for directors and employees could be affected if the loan leads to further debts or insolvency.

We can provide impartial, straightforward advice to any business owner or director considering taking out a commercial loan.

Contact Dashna Morarji-Sagoo by emailing DashnaMorarji-Sagoo@palmerslaw.co.uk or calling 01375 484443 or BJ Chong by emailing BJChong@palmerslaw.co.uk

The contents of this article are intended for informational and educational purposes only.

Flexible working and your rights

Palmers Solicitors Business News 29 August 202429 August 2024

Flexible working has been hugely popular among employees for a number of years now, spurred on by the pandemic and subsequent adaptation to remote working.

As a result, amends to the Flexible Working Regulations 2014 brought in the day-one right to request flexible working from April 2024 – giving all employees the right to request flexible working arrangements from the first day of their employment as stated in their contract.

However, discussions around this right have resulted in confusion over what rights employees have and how flexible working may be defined.

We’ll explore these points of complexity and break down what you need to know about flexible working rights.

What is flexible working?

Many people think of flexible working as exclusively working remotely or on a hybrid basis.

While this is a major element of flexible working for some people, it’s not always possible or the right arrangement for a particular employee.

Under the law, flexible working encompasses much more than remote working, including:

Job sharing
Working part-time or reduced hours
‘Flexi-time’, working core hours but choosing when to start and end work
Annualised hours
Compressed hours
Phased retirement

The idea behind flexible working is that the employer makes an effort to allow the employee to fulfil their duties while balancing, for example, family life or personal commitments.

It is designed to recognise that different workers have different needs, needs which need to be accommodated as far as possible to optimise productivity and employee satisfaction.

The right to request

The most important thing to remember about this right is that it is a right to ‘request’, not an automatic right to flexible working.

Your employer must deal with your request in a ‘reasonable manner’, meaning they must:

Give your request due consideration
Balance the advantages and disadvantages without bias
Not allow prejudice or discrimination to influence their decision
Consider and discuss possible alternatives
Offer an appeal process

Your employer must respond to your request with a decision within two months (if you have not agreed to a longer response period with them), and any changes must be reflected in your employment contract.

They are within their rights to refuse your request if they have a ‘good business reason’ for doing so, for example, if your duties cannot be fulfilled remotely or in fewer hours.

You have the right to appeal a decision with your employer. It is important to obtain legal advice prior to appealing your decision as you are only permitted to make two requests in any 12-month period and cannot make a new request whilst a previous request remains ongoing.

You may also turn to a Tribunal if you feel that your employer did not act reasonably and according to legislation – but not purely on the basis that your request was refused.

For further advice on flexible working rights and for assistance with appealing a decision, please contact our Employment Law team today to discuss your needs.

Can a child stop you from seeing your grandchildren?

Palmers Solicitors Business News 29 August 2024

The rights of grandparents under the law are a significant source of debate for both professionals and those impacted by current legislation.

Grandparents and grandchildren often have important and formative relationships that are incredibly meaningful and beneficial for those involved, regardless of the relationship between a grandparent and their child.

Your child’s reasoning

There may be any number of reasons why your child does not want you to see your grandchildren, but some of the most common reasons include:

A poor relationship with your child, causing them to distance their whole family from you
A belief that you will be a negative influence on your grandchild
A concern that you may harm your grandchild or allow them to be harmed
The grandchild’s other parent does not want you to see them.

As you can see, your child will often be acting in what they believe to be their, and your grandchild’s, best interest, but that may not always be the case.

Discussion is the best policy

With this in mind, it’s important that you first try to negotiate and discuss the situation openly with your child to reach an arrangement.

If your grandchild is old enough, all parties should be encouraged to take their wants and needs into account, particularly if you cannot see them due to a rift between you and your grandchild’s parent.

It may be that supervised visits can be organised, or you may be able to address any other issues that cause concern over the wellbeing of your grandchild.

You may also try mediation with a qualified family mediator if discussions and negotiations are too difficult or not successful.

Your rights in law

If an informal arrangement cannot be achieved, you may turn to your rights under the law.

In England and Wales, grandparents do not have the automatic right to see their grandchildren – but you are able to apply to the Court for permission to make an application (a Child Arrangement Order) to spend time with your grandchildren in the same way a parent can.

The courts are inclined to support contact if it is deemed beneficial for the child’s emotional and psychological well-being, and therefore in their “best interests”.

Under the Children Act 1989, once permission has been granted, then a child arrangement order may be sought and put in place by the courts to allow certain people, including grandparents, to see the child and to outline when and how they may have contact with the child or children.

This will be affected by many factors, including: