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Employment Law News & Articles

Keep updated with the latest developments in employment law through our regular articles and bulletins.

• Smoking Ban
• Agricultural Tenancies
• Improved Maternity Rights

Smoking Ban

Many employers provide their workers with accommodation, particularly in rural communities. How many farmers and other landowners actually consider their legal obligations when giving their workers accommodation? This short article will briefly explain the basics of agricultural tenancies in the context of employment law.

I am a small employer and don’t have time to deal with all these regulations the government are bringing in.

From 1 July 2007 smoking will be banned in England in most work places and enclosed areas to which the public have access, including public transport, taxis and company vehicles. The new laws will require ‘no smoking’ signs to be displayed in smoke free premises and vehicles.

Does the ban mean that I have to allow my workers smoking breaks to go outside and smoke?

Most employers will already have smoking policies which will determine whether an employee can take cigarette breaks or not. Unless a worker can show that they have always taken smoking breaks (so it has become an implied contractual term through custom and practice) they will not be able to demand the right to go outside and smoke during working hours. There is also no obligation on you to provide smoking shelters or cigarette bins.

I have heard that employers are going to be required to give employees time off work to attend clinics to help them stop smoking?

Employers are encouraged by the government to help smokers quit. The National Institute for Health and Clinical Excellence (NICE) have suggested that employees who smoke should be given time off work without loss of pay to attend clinics to help them to quit, but this is very much a suggestion and such time off is entirely at the employers discretion.

Could a smoker claim that their addiction to nicotine is a disability and get around the ban by claiming protection under the Disability Discrimination Act?

A worker cannot argue that their addiction to nicotine is a disability that requires a ‘reasonable adjustment’ as an addiction to tobacco is expressly excluded under the DDA.

What are the penalties if I breach the no smoking laws?

If you do not comply with the new laws you will be committing a criminal offence.

An employer who fails to prevent smoking in a smoke-free place could be fined up to £2,500. A worker who smokes in a no smoking place or vehicle could be given a fixed penalty notice for £50 or fined up to £200 if convicted. Failure to display a ‘No Smoking’ sign could incur a fine of up to £1,000 if the case goes to Court.

7th August 2007

Agricultural Tenancies

Many employers provide their workers with accommodation, particularly in rural communities. How many farmers and other landowners actually consider their legal obligations when giving their workers accommodation? This short article will briefly explain the basics of agricultural tenancies in the context of employment law.

Agricultural Tenancies

1. If an agricultural worker lives in self contained accommodation provided by his employer, it is likely that the worker will have tied accommodation and either a protected, statutory or assured agricultural tenancy. This gives the worker important rights.
2. The worker does not need to live on agricultural land for it to be an agricultural tenancy; simply they must live in property provided by their employer and undertake agricultural work.

What is an agricultural worker?

To be an agricultural worker you must;

1. Work 35 hours or more a week unless you have a special permit to work shorter hours (because of an industrial injury); and
2. Work for at least some of the time with things like crops, livestock or forestry. Maintaining farm equipment is also included in this; and
3. Have been employed for 91 out of the previous 104 weeks in the above work.

If the worker meets the above conditions then they would be an agricultural worker

What if the worker does not have an agricultural tenancy?

If the worker does not have an agricultural tenancy because they do not fulfil the above criteria their legal status will depend on the individual circumstances. They are likely to be a tenant under ordinary laws or a service occupant. Tenants can only be evicted after following a strict legal procedure. Service occupants are those who only have a right to occupy the property for the proper performance of their duties or in situations when it is customary to provide accommodation for the better performance of their duties. Service occupants can be requested to leave the property with reasonable notice and are not usually subject to the strict procedural rules for evicting tenants (ordinary or agricultural).

Type of agricultural tenancy

If the worker moved into the home or became an agricultural tenant before the 15th January 1989 they are protected or have a statutory agricultural tenancy.

If they moved into their home on or after the 15th January 1989 they would be an assured agricultural tenant.

What happens if the worker is no longer working?

Once the worker acquires an agricultural tenancy they remain an agricultural tenant. This is the case even if they lose their job, whether that is due to retirement, dismissal redundancy etc. This means that the worker will still have the rights of the agricultural tenant after their employment ends.

Types of tenancy

Protected or statutory agricultural tenancy;


1. The landlord would not usually charge rent whilst working for him or her.
2. The rent will normally be charged after the employment ends if the tenant remains in the property. The rent can either be agreed between the parties or the Rent Service can be asked to set a fair rent.

Assured agricultural tenancy


1. Again the landlord will not usually charge rent whilst working for him or her;
2. If the landlord does charge rent then it will be a ‘market rent’ which will be agreed between the parties. If the landlord wishes to increase the rent, the tenant can ask the Rent Assessment Committee to set a rent;
3. Even if no rent was paid whilst the worker was working for the landlord, rent can be charge after employment ends. If the parties cannot agree rent, the Rent Assessment Committee can be asked to set a rent; this would normally be done within one month of receiving a Rent Notice from the landlord.

What happens to the workers family if they die?

1. The workers wife, husband or partner will be able to take over the tenancy when the worker dies
2. If the worker is not married and does not have a partner, a member of their family can take over the tenancy if they have lived with the worker for at least the previous 2 years.
3. The tenancy can only be passed on once.

What happens if the landlord wants the tenant to leave?

The tenant can remain in the property until the landlord obtains a Possession Order from the Court. The landlord can obtain a Possession Order for failure to pay rent, the tenant breaking a condition of the tenancy, the tenant causing a nuisance or damaging the property. The landlord would normally have to give written notice before seeking a Court Order. The process is effectively the same as it would be for an ordinary tenant. A landlord should obtain specialist legal advice before taking any action.

If the tenant gives up their work or loses their job and the landlord needs it to use the property for another worker, the landlord can ask the local council to re-house the worker. The Council then has a duty to do everything it can to find another home for the worker. In this case if a dispute arises, the Agricultural Dwelling House Advisory Committee (ADHAC) can decide whether the landlord has a good reason for wanting the home back. ADHAC can be contacted through the local council.

Summary

If a worker has an agricultural tenancy they have similar protection to an ordinary tenant meaning the landlord cannot evict them from the property without following the correct procedures. In order to recover possession of the property a landlord will either need to seek a court order or the help of ADHAC, in the event of the worker being unwilling to leave. The landlord should not take any steps to recover possession without first seeking legal advice.

If the worker is not an agricultural tenant they will still have some legal status under the law and a landlord should familiarise himself with the law in this area.

Finally landlords who also employ their tenants should remember they have separate obligations in their capacity as employers, which can be equally as onerous as their obligations as landlords.

7th August 2007

Improved Maternity Rights

New legislation which will affect all businesses from April sees important changes in maternity and adoption rights, paternity rights and the right to request flexible working.

In relation to maternity leave, women whose expected week of childbirth begins on or after 1 April 2007 will be entitled to 52 weeks maternity leave regardless of their length of service. This is an increase from 26 weeks leave and an additional 26 weeks if a period of qualifying service was completed with the employer. Statutory maternity and adoption pay will increase from 26 weeks to 39 weeks.

The new regulations also provide for "keep in touch days", entitling employees to work up to 10 days during their leave without bringing their leave to an end or losing pay. This is entirely optional for both parties. Employers will also be permitted to make "reasonable contact from time to time" with employees on leave.

The new regulations require the employee to give 8 weeks notice before returning from leave, an increase from the previous 28 days.

Paid paternity leave will also increase from 2 to 26 weeks. This will not be introduced before April 2008 at the earliest.

Finally, as from 6 April 2007 the right to request flexible working, which currently applies to parents of children under 6 (18 if the child is disabled), will be extended to carers of adults.

For employers you should review your policies to ensure they comply with the statutory requirements. Failure to properly plan could leave you facing costly legal action.

16th January 2007