Employment Law 2020

Purpose

To:

1.      Look at the corona virus employee retention scheme

2.      Look at the statutory sick pay scheme (as amended)

The corona virus employee retention scheme

Introduction

The government has advised that it will give businesses support up to 80% of the salary of their employees who would have lost their jobs in this crisis provided employers retain the staff and have explained that they are no longer going to be able to work during the crisis and must stay at home. The staff will be defined as “Furloughed Workers” and a claim can be made to HMRC.

Some employment contracts, depending on what the terms and conditions state will allow you to take advantage of the scheme without the need for any adjustment or discussion with your staff. Other contract types. will mean a discussion with the employee and you arrive at an agreement because you usually can not simply vary the contract of an employee unilaterally. It is worthwhile in the latter case getting the employee to confirm to the new arrangement in writing and for it to be placed on the employee personnel file.

Employers must remember that they are still responsible to pay the employee their full wages under their contract of employment. The government is just helping by providing up to 80% per month in this pandemic.

Who is eligible?

All UK employers  with a PAYE scheme, thus it could be a business or a charity.

How much will I get per employee?

The amount is 80% of salary capped at £2,500. It covers all employment costs: salary, national insurance, pension costs etc.

When do I apply to get paid?

HMRC are working hard to get the scheme up and running and you will be advised by the government when it is ready.

Others Matters

The scheme is open for 3 months and is back dated to 1 March 2020.

Please remember, holiday pay and sick pay are still due to be paid as normal.

 Risk of non-compliance

·        A potential claim in the employment tribunal for constructive unfair dismissal (provided the individual is employed for two years).

·        A negligence claim:-

o   Employees ( and workers) are owed a duty of care.

o   By refusing the above and insisting that they work, you are in breach of their duty of care as per any government policy guidelines regarding Covid -19 as well as a breach of the health and safety regulations, and

o   The individual concerned has suffered loss and damage.

·        I am not a personal injury expert, but I am sure a good one will try and make an employer liable under this head of claim if any harm was caused to the employee at work, because of the employer insisting for example that they must continue to work and the employee has been harmed at work, as a result of the employers failure.

In the current pandemic, non-compliance with government advice is not a good idea. Trying to insist this difficult times, in the life of all humans as holiday period, cannot be valid and should be refrained.

The statutory sick pay scheme (as amended)

 Support for employers paying sick pay for the employed

Small and medium size business owners will be allowed to reclaim the statutory sick pay (SSP) paid to employees who have Covid – 19.

Employees  that can claim

·        Employees who have contracted Covid-19.

·        Employees who have to self-isolate because of Covid-19

Eligibility

Employers who are in the UK and defined as a small or medium sized business who thus employ less than 250 people.

Other Matters

S38 to 40 of the Covid 19 emergency legislation is what deals with amendments to the statutory sick pay (SSP)  legislation. S38 removes the 3 day need for workers to wait before they can receive SSP because the government wants to encourage people to stay at home when ill. It is important as an employer that you comply with this and the recent rule that only key workers must be working.

S39 enables the secretary of state to make the necessary amendments to encourage employees to stay at home if they are sick, so they can claim SSP now from day one. Employees must not be forced to work if ill or they have to self-isolate.

The SSP rules have been amended to encourage to help contain the virus and to try and reduce the pressure on the NHS. The bottom line is if this virus is not contained, many would die unnecessary. Let us play our part and try and be fair and keep social contact to a minimum.

Employment Law Newsletter

March 2018

This is a gentle reminder of the tax changes  from 6 April 2018 that will have the potential to impact settlement agreements and should be known to employers who will be responsible for the tax in principle.

Tax relief – Settlements Agreements

Introduced by the Finance (No 2) Act 2017, from 6 April 2018 the government will tax ‘payment in lieu of notice’ and the scope of taxation on ‘injury to feelings’ has been widened.

Payments in lieu of notice (PILON) will from 6 April be classed as earnings and subject to tax and national insurance in the usual way. This is whether or not such a clause has been included in the employee’s contract of employment. This rule applies notwithstanding the fact that the first £30,000 is supposed to be tax free. In other words, the amendment is an indirect in road into the general rule that the first £30,000 is free from taxation; thus the statement will no longer be true in many settlement cases.

For example: let us assume Samantha is to be paid £30,000 as part of her settlement agreement. This represents 6 months’ salary. This includes a payment in lieu of notice of three months (£15,000). Under the old law Samantha would receive £30,000.

Under the new rules let us assume Samantha will pay tax of £40% on the sum of £15,000 because it is a payment in lieu of notice. Samantha is thus worse off by £6,000. Samantha would therefore receive £24,000.

Samantha is not going to be happy as she has to pay tax and will push for more money. The employer will be unhappy because their tax bill has been increased. The only winner in this situation is the tax man.

The above is a very simply example to get the message across. There is formulae to be used if the calculation has to be made properly.

Tax Relief – Injury to Feelings

Whether a person has been discriminated against pre-termination or post termination. The injury to feelings damages awards are subject to tax and national insurance except where the injury amounts to a recognised psychiatric injury. I feel that some lawyers might start to be creative here!

The current rule  (before 6 April 2018) was that there was no tax in relation to injury to feelings as a result of discrimination during work; however tax had to be paid on the injury to feeling award that related to termination of employment. This came about as a result of the case Moorthy v Revenue and Customs Commissioners [2016] UKUT 13 (TCC), [2016] All ER (D) 08 (Feb) which was decided by the Upper Tribunal. It was made clear that discriminatory payments for injury to feeling in relation to termination were subject to tax.

Foreign Service Relief

Foreign Service Relief for staff working and living aboard will no longer exist after 6 April 2018. Thus any termination payments will be exempt only up to £30,000. Thereafter any other payment will be subject to tax and national insurance in the usual way.

Increase in compensation payments

The statutory redundancy payment will increase to £508 per week on 6 April 2018 (previously £489).

The maximum compensatory award for any employees who issue claims unfair dismissal and their effected date of termination is on 6 April 2018 will be £83,682 (previous award £80,541).

CALL TO ACTION

Employers simply have to remember if there is a settlement agreement being agreed; tax will have to be paid for PILONS and/ injury to feelings.

Employees also need to remember to ask for the sum’s to be paid as gross to take account of the taxation that will need to be paid.

March /February 2017

BUSINESS NEWSLETTER

Introduction

In this newsletter we will look at:

• Consent under the General Data Protection Regulation
• The New National Minimum Wage figures
• The potential impact of the Chancellor's recent u-turn

General Data Protection Regulation (GDPR) & Consent

Business owners and employers are well aware that employees must consent to the processing of their personal data.

The GDPR was adopted in April 2016 and everyone has 2 years to get into shape as the law will be enforced in May 2018.

GDPR will apply to businesses that process personal data in Europe. It will also apply to companies outside of Europe that have a significant client base or a large number of employees in Europe. This short note is a discussion on the issue of obtaining a person’s consent.

There must be real consent, freely given in relation to the processing of personal data, whether it is a client’s data or an employee. The new regulations place a significant emphasis on freely given consent.

In your business you will have a standard contract. Usually at the end the individual concerned simply executes the agreement and consent to everything including the processing of their data. Online, it is all tick boxes.

GDPR states that you will need to have a separate consent form in relation to the processing of the data. Similar to your ‘cooling off’ form which naturally is separate from your main contract.

Ticking boxes on a web page, or silence (implied consent if you continue to process the information for the person) is not going to be consent under the new regulations.

Consent must be intelligible, informed and unambiguous. Thus if you provide a service online, even online to children, consent to processing data must be clearly given.

Consent must be granular for distinct processes (just imagine!).

You must let the data subject know that they have a right to revoke your ability to processing their data at any time.

If the consent will cover several processes, you must let the client know the persons involved in the processing. They must be named. So for example if I am completing a divorce petition. Then my consent form to be executed by the client in theory will mean, I need to get consent for me to prepare the petition as I am processing the personal data. When this form is sent to the court. It will be processed by the court, so my consent form in theory should state that there will be processing by the court. The court will need to be named. If I was sending a barrister to court to argue about the finances, the form would need to consent to the barristers’ chambers processing the personal data so that the client can representation at court. So the barrister’s chamber will need to be named.

The rationale behind the new consent is to give customers and staff more control.

Consent forms therefore must be drawn up in plain English to ensure compliance with the new rules.

Consent obtained must then be documented.

National Minimum Wage

The National Minimum Wage (and National Living Wage) rates will increase from 1 April.

The National Minimum Wage is defined as the minimum wage per hour a worker is entitled to under the law.

National Living Wage was introduced by the government on 1 April 2016 and is defined as the living wage for all working people over the age of 25.

The new rates from

• £7.50 per hour - 25 years old and over
• £7.05 per hour - 21-24 years old
• £5.60 per hour - 18-20 years old
• £4.05 per hour - 16-17 years old
• £3.50 for apprentices under 19 or 19 or over who are in the first year of apprenticeship.

If an employer provides a worker with living accommodation, the maximum deduction from the National Minimum Wage or National Living Wage which can be made will be £6.40 per day.

Phillip Hammond’s NI U-turn may be a huge problem for some employers

In the recent budget, the Chancellor announced that he was going to increase National Insurance (NI) contributions to be paid by the self-employed by 2%. This would impact 2.5 million people. His aim was to raise £2bn. This aspect of the budget created mayhem as you know, there were a few bad headlines and tory backbenchers screaming Mr Hammond was in breach, it is alleged, of a manifesto promise not to raise taxes.

In order to avoid a backbenchers revolt; after all we have Brexit to think about, the Chancellor Phillip Hammond did a complete u-turn and scrapped the NI increase to the delight of the self-employed.

The Chancellor must however raise funds to compensate for the loss of revenue because of the U-turn.  The best way to deal with it surely is to go after those employers who use or exploit the false/ bogus self-employed. The staff are forced to be self-employed because this saves the employer money, holiday pay, sick pay etc. The industries that have a tendency to do this are the gig economy, construction industry, transport and private social care firms.

In 2015, the CAB suggested that there were approximately 460,000 bogus self-employed[i]

It would be prudent therefore if you have contractors working for you that you make sure they are truly self-employed. You do not want to be in the position where a Judges makes an order to the effect that the staff in question are employed by you; with all the associated risks of the Inland Revenue chasing you for money.

[i] https://www.citizensadvice.org.uk/about-us/how-citizens-advice-works/media/press-releases/bogus-self-employment-costing-millions-to-workers-and-government/

January 2017

Business Newsletter

Introduction

In this newsletter we will look at the badly drafted Brexit Bill, work place dress code and an employment law decision regarding employer’s liability outside work.

If I have no said so before, Happy New Year and I hope that compliance with the current legislation regarding employment rights and Data protection rights were part of your New Year’s resolutions!!!

What’s new?

We are proposing to send out emails on a weekly basis. These will be much shorter than the newsletter and may deal with topical issues or just be a bit of fun. Nothing hard, if you do not want to receive these emails let me know.

1.       Brexit –We still have a legal problem? 

The Brexit case has finally been decided by the Supreme Court 8 to 3 dissenting judges.  The outcome is no surprise. The argument of the Attorney General was rejected, again no surprise. The unanimous decision that there was no need to discuss matters with Northern Ireland or Scotland under the devolved powers did cause me a great deal of concern and I wondered if this aspect of the Judgement should be challenged.

I am not going to discuss the Supreme Court case as political and legal journalists have covered the subject well.

The dissenting Judgements were of interest and should be read if you have time.

The decision has been made and we have a new bill that has been laid before parliament. ‘The European Union Notification of Withdrawal Act[i]’. It is a two paragraph bill written in plain English. When you read it, it looks as if it does the job. However if you look at it closely, horror of horrors, no, it does not do the job. Jo Maugham QC kindly wrote an article using the title of Samuel Beckett’s play ‘Waiting for Godot[ii]’ highlighting this point.  He said “if the referendum is not the decision to leave, and the decision to leave has to be taken by parliament, where is the decision to leave in the bill?” The last three words are mine!!!! Come on, I have to show some intellect.

The decision to leave is not in the wretched bill, as it only makes reference to giving the Prime Minister power to provide the European Union with a withdrawal notice under article 50(2) of the EEC Treaty.  I am deeply unimpressed that a bill that appears to solve a simple problem, is wrong, so it will be amended in due course as it passes through the House of Commons and the House of Lords before it becomes law.

Brexit appears not to be as simply as it was sold to the people of the UK.

2.       Employers vicarious liability for the acts of employees

In employment law, it is accepted that employers are vicariously liable for the acts  or omissions of their employees during the course of employment. In certain instances, the liability of employers can extend to social settings for the behaviour of employees. However there has been a very strange judgement made on this point in the High Court. The case is Bellman v Northampton Recruitment Ltd [2016] EWHC 3104 QBD.

The firm had a Christmas party and after the Christmas party, some staff went to a nearby Hilton hotel and had a few more drinks and got completely intoxicated. Mr Major (the MD) and his wife ran a HGV drivers Recruitment Company. They were the owners and shareholders of the defendant company. Mr Major and Mr Bellman were friends. Mr Major had offered Mr Bellman the job of Sales Manager.

Mr Major whilst intoxicated reminded everyone he was in charge, he paid the wages and made important decisions about the company.

Mr Major hit Mr Bellman. Mr Bellman had not provoked the attack and it was unwarranted. Mr Bellman got up, and held out his hand as if to say he was surrendering. Mr Major however hit him again.  It resulted in Mr Bellman falling to the ground for a second time, hitting his head. His skull was fractured and there was bleeding on the brain. Mr Bellman suffered a traumatic brain injury. It is my understanding that Mr Bellman cannot work as a result of the injury.

CPS decided not to prosecute; simply amazing!

Mr Bellman, with the assistance of a third party brought an action against the Defendant Company stating that it was vicariously liable for the conduct of its employee, Mr Major

Held by the His Honour Judge Cutter

There was no liability on the part of the employer company because the assault was committed after several hours after a work social event.  In other words, Mr Major was acting personally and outside the scope of his employment.

3.       High heels and workplace dress codes

First of all I deliberated as to whether or not I should cover this topic again as I had discussed it in a previous newsletter. The topic is still very much live and topical because over 138,500 people signed the petition of Nicola Thorp. The report on High heels and work place dress code looked at the issue of high heels in the work place and in particular the industries where high heels are often required: hospitality, corporate, tourism and agency services. More often than not, it was young women who were expected to wear high heels.

Women were usually asked to wear makeup, dye their hair blond, tight revealing clothes and short skirts.

The interesting aspect of the report was that when John Bowers QC[i] was asked about the legitimacy of the practise; it was not clear cut that if a woman took the issue of being forced to wear high heels to court she would win the claim.

We are all aware that employers are not allowed to discriminate against the genders in the work place. Sex discrimination (like race, age, disability for example) is one of the protected[ii] characteristic under the Equality Act 2010.

Direct discrimination[iii] occurs when A treats B because of a protected characteristic, less favourably in the work place. High heels however is not caught by the direct discrimination legislation because work a place dress code policy document is usually applicable to both sexes. If high heels are to be found in the dress code policy and effects one group (women), it will be regarded as indirect discrimination[iv] under the law.

Indirect discrimination can in law be justified if it is reasonably necessary to achieve a legitimate aim and it is here that it is believed that the law falls down and does not help women. The tribunal costs just to issue a case is in the region of £1,200 and this too is clearly a deterrent for some women.

The committee found the current law did little to protect women from gender discrimination in the work place. The committee has asked for the government to review the law and to increase the penalties that tribunals can make and award against employers. The current penalties do not to stop employers breaking the law.

High heels worn for a long period of time is bad for women’s health as highlighted by the report at pages 8-13.

Wearing high heels at work also gives rise to health and safety considerations! A good employer should do a proper risk assessment.

The Management of Health and Safety at Work Regulations 1999 require an employer to (1) conduct a suitable and sufficient assessment of the risk to the health and safety of persons at work[v]; and (2) to set out a hierarchy of risks in the workplace. This risk assessment duty builds on the general duty on employers under section 2 of the Health and Safety at Work Act 1974 to provide a safe working environment.

Employers should consider:

·         Reviewing and re-writing the work place dress code policy that may impact staff at work. Try to remove where possible any gender bias for example if you feel it is a perquisite that a woman’s hair is neat and she must wear make-up. Then a man must be clean shaven, wear his hair short and neat and should wear aftershave. Sorry if some of you are mumbling what rubbish is Johanna on about now; but I am trying to get you into the habit of understanding equal treatment.

·         Training so as to prevent discriminatory treatment.

·         Carry out appropriate risk assessments and implement changes where necessary to protect staff.

[i]  a leading employment lawyer

[ii] S11 Equality Act 2010

[iii] S13 Equality Act 2010

[iv] S19 Equality Act 2010

[v] To include those not in his employment that may enter his premise

[i] http://www.publications.parliament.uk/pa/bills/cbill/2016-2017/0132/cbill_2016-20170132_en_2.htm#l1g1

[ii] Waiting for tax.co

Business Newsletter November 2016 →

In this addition of the newsletter we discuss:

1.      A company director being disqualified for employing illegal workers.

2.      A man losing his job even though he had indefinite leave to remain in the UK.

3.      The Snoopers Charter

Company director banned for employing illegal workers

Introduction

The government is much stricter these days with employers who flout the law.

It is illegal under the Immigration Act 2016 to employ an illegal worker. The Immigration and Asylum and Nationality Act 2006 is clear, employers are responsible for compliance with the law and must carry out the necessary checks to ensure that they only employ staff legally entitled to work in the UK.

In November 2015 the Insolvency Service issued a press release advising the public that it had disqualified the director of an Indian restaurant for 6 years for employing illegal workers. The director in question will not be a director of a company for 6 years from 9 November 2016.

The Home Office Immigration Enforcement team turned up at his business premises only to discover that 3 of the staff were not legally entitled to work in the UK. I have advised in a previous newsletter that there will be a fine of £10,000 per illegal employee. So that employer was fined £30,000.

On 2nd December 2016, the company went into liquidation owing creditors £34,296 of which £30,000 had been imposed by the Home Office. It is not rocket science, the Home Office clearly put this company out of businesses because they tried to use cheap labour.

Sue Macleod, Chief Investigator of the Insolvency Service stated “Illegal workers are not protected under employment law, and as well as cheating legitimate job seekers out of employment opportunities, these employers defrauded the tax payer and undercut honest competitors…..The public has a right to expect that those who break the law will face the consequences and this should serve as a warning to other directors tempted to take on illegal staff”[i].

Tips for employers

Do not take the risk.  Ensure all staff are legally entitled to work in the UK.

No sure what you are doing, ask for help.

I have noticed since the draconian immigration law changes, some employers when advertising jobs have specifically stated, do not apply if your immigration papers are not in order. This is not unreasonable; because of the risk of the penalties that may be imposed; however employers must take care not to discriminate against minorities legitimately entitled to work in the UK.

Tip for employees

Sort out your immigration status.

The employment law will not protect you if you are employed illegally.

Your income can be seized as the proceeds of crime. I do have difficulties with this one and believe at some point that it will be challenged in the courts.

Employers fairly dismiss man who had indefinite leave to remain in the UK

 

Introduction

A Jamaican man is dismissed from the employ of Abellio London Ltd because he could not provide his employers with evidence that he was entitled to live and work in the UK.

The case

In the case of Baker v Abellio London Ltd (2016), Mr Baker, the Claimant, had travelled from Jamaica to the United Kingdom as a child; at the time he was using a Jamaican passport. Mr Baker had lived in the United Kingdom for a long time and had indefinite leave to remain. However he had not left the United Kingdom for a holiday accordingly his Jamaican passport had expired and he had not acquired a UK passport.

Mr Baker was employed by a transport company, Abellio Ltd. The employers were checking the staffs’ immigration status. Mr Baker was asked to provide evidence of his immigration status.  Mr Baker had to prove to his employers that he had a right to live and work in the UK without restriction. Mr Baker did not have a valid Jamaican passport as it had lapsed. Nor did he have a UK passport. Mr Baker could not prove he had indefinite leave to remain, although it had been acquired.

Mr Baker was loaned £350 by his employer to enable him to get the correct legal documents to avoid dismissal. He failed to do so.

Mr Baker acquired the passport as requested by his employers; however he failed to obtain the endorsement as proof of his indefinite leave to remain in the UK.

Mr Baker was not a UK citizen. He was a Jamaican national, even though he had indefinite leave to remain. A passport alone therefore was not sufficient evidence of his rights to live and work in the UK. The endorsement was required.

Mr Baker’s employers had arranged a meeting with him to discuss the matter and warned him that he may be dismissed. Mr Baker failed to attend the meeting.

Mr Baker was ultimately dismissed. He appealed, but the appeal failed. The employers Abellio had followed a fair dismissal procedure; accordingly the dismissal was fair and Mr Baker’s claim for unfair dismissal was rejected.

I understand that 13% of the UK population do not own a passport; however if you are subject to the immigration rules of the UK, you have to comply in order to work.

Tips

·        Employer: provided you follow a fair dismissal procedure and the employee has not provided you with valid documents to prove their right to work in the UK, your dismissal would be viewed as fair.

·        Employee: it is a prerequisite that you ensure you have valid evidence of your right to live and work in the UK. Do not let your passport or relevant legal document lapse without obtaining a replacement.

The Snoopers Charter

Introduction

Very few people have heard me swear, that is because I believe it is not necessary. There are loads of useful, colourful words in the English language that can convey a message without the need for the ‘F’ word! However when I think about this piece of legislation and its true implications for everyone’s privacy or lack thereof. I get extremely angry and want to shout, scream and swear profusely; because whilst the opposition were taking an extensive ‘nap’ the conservative government pushed through one of the most sweeping pieces of surveillance legislation this country has ever seen. The offensive legislation is referred to as the ‘Investigatory Powers Act’ (also known as the ‘snooper’s charter’).

It is fair to say privacy is dead. I know many of you will argue that this piece of legislation is to protect us from terrorists. However the terrorists are not so sophisticated. It is the lack of sophistication and lack of use of technology why the Paris bombers were caught so quickly.

I remember when I first read through aspects of this dreadful legislation I wondered how I was going to handle such snooping.  Good encryption perhaps! Put my laptop in the Fridge[ii].

Paul Bernal, a leading lecturer on Information technology law described the bill as ‘the most invasive surveillance law in democratic history’.

Edward Snowdon, through twitter; “it is the most intrusive and least accountable surveillance regime in the West”.

Apple made a formal submission, specifically on the issue of encryption, to the Investigatory bill’s committee. Apple stated in their submission, “we believe it would be wrong to weaken the security for hundreds of millions of law-abiding customers so that our systems will be weaker for the very few who pose a threat. In this rapid evolving cyber-threat environment, companies should remain free to implement strong encryption to protect customers.” I agree with Apple!

What the new bill allows the authorities to do in summary

1.      Web and phone companies will have to store records[iii] of all our website visits, telephone calls made, what apps use and text messages for 12 months.  There is no need for a warrant to get access to this information. The police just need the authority of someone senior to access the information for their own use. There is just the right of these institutions to hack. This cannot be right!! What will be retained is our metadata says the government and not the content. Metadata the experts advice is more intrusive than content because it allows the police etc., to make cross references.

2.      With this type of surveillance, everything will be under surveillance and privacy as we know it will become a thing of the past. However, some companies have made it clear to the government that they will help customers (like me) to circumvent the new legislation. Thus virtual private networks have been promoting their products to the general public to get override this legislation.

3.      Security services will be able to bug computers and phones upon obtaining a warrant. Companies such as Apple, Samsung etc., will have to assist security by getting rid of any encryption if it is deemed necessary as part of an investigation.

4.      The security services will be able to acquire and analysis bulk data. For example all NHS records. The protection provided to prevent this is called double-lock. A Judge has to approve the warrant to be issued to the security services and a senior minister. My first reading of the original bill was that the Judges powers were weak and ineffective. Therefore there is the real risk that this power will be abused by the security services.

5.      The bill is so outrageous that whilst it provides some protection for sensitive professions, such as my own. Thus in theory it protects the concept of ‘legal professional privilege’. In other words you can speak to me in strict confidence and know that it will stay with me. The harsh reality is that the makes some inroads into the concept of ‘legal professional privilege’. View this as potential the new legislation has created an exceptions. In other words, I may have to convey to the authorities what you have told me. To be honest, if I deemed it as intrusive and unnecessary I will not part with the information.

Regrettably this legislation will become law by the end of the year. There are only two forms of saving grace. First of all experts have stated that it is going to be very expensive for the various companies to retain the records needed by the government for compliance.

The bit that gets me more excited, is the second saving grace. An intelligent person will challenge this piece of legislation and it will be in the European Court of Justice. Thank goodness for ‘crowd funding’. Hopefully it will be with the court before Brexit and it will naturally be struck down by lightening. I cannot see why the Judges would not make a unanimous decision. There is absolutely no way a Judge will approve this nonsense in a democracy. I cannot wait for this to happen as the legislation is just dangerous and open to abuse.

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Should you or any person you know have a legal problem relating to employment, immigration or company law issues raised by this article. Please do not hesitate to provide them with our contact details so that we may assistance.

[i] https://www.gov.uk/government/news/restaurant-company-director-banned-for-employing-illegal-workers

[ii] In a book I read on Snowden, he did this for the purpose of security.

[iii] Internet connection record

Business Newsletter - June 2016

IMMIGRATION ACT 2016

An Immigration Special

Introduction

On 16 May 2016, the Immigration Act received Royal Assent. Significant changes were made to the law which will come into effect through regulations over the next few months.

This article is intended for organisations that employ staff, business owners, HR Departments, landlords and letting agents.

The purpose of the new Immigration Act is to make life tougher for illegal workers (migrants) and to punish those employers and landlords who do not play by the rules and turn a blind eye.

In this article we will discuss some of the key changes:

1.       Residential Tenancies

2.       The new offence of illegal working

3.       Skilled workers charge

4.       Significant rule changes for migrants

5.       Charging employers recruiting from outside the EEA

6.       Language requirements for the public sector

Residential Tenancies

Landlords who comply with the law are aware that under the Right to Rent Scheme they are obliged to check the legal status of tenants to ensure that the prospective tenants are in the country legally. This involved checking passports or biometric residence permits and keeping copies. Landlord who fail to make the checks risked a maximum civil penalty of up to £3,000 per illegal migrant tenant.

If a landlord discovers that the tenant is illegally residing in their property. Then must use the law to evict that individual rather than risk a fine.

The government changed the law, so it is now a criminal offence to lease premises to an illegal migrant. The offence is committed if the tenant is disqualified from renting because they do not have the immigration status that allows them to reside and work in the UK legally.

The landlord who knows or has reasonable cause to believe that the person is disqualified because of their immigration status runs the risk of committing an offence under the new Act. The landlord may be fined (there is no upper limit). There is also imprisonment of up to five years.

The legislation also states agents of a landlord may also commit an offence.

It is a defence to show that the landlord had taken reasonable steps to evict the tenant. So on discovering the tenant is not residing in your property legally; you must start eviction proceedings.

This is just a brief summary of the new law and you are respectfully referred to the relevant provisions of the Act.

See s39 of the Immigration Act 2016. 

The new rules regarding illegal working

Employees/ Workers

A.      The offence of Illegal working

The legislation introduces the new offence of illegal working.

A migrant commits the offence of illegal working if that person is subject to immigration control and:-

1.       The person works at a time when they know that they are disqualified to work because of their immigration status; and

2.       The person knows or has reasonable cause to believe that they are disqualified from working because of their immigration status.

A person working refers to any  person who works; whether it is under a contract of employment, an apprenticeship, a contract to personally work, a contract to provide a service, or a contract to supply goods, a member of the crown, a constable, staff in the House of Lords or the House of Commons.

It is fair that the definition of work is very wide and catches almost anything really. The migrant is likely to be at risk in my opinion if they are self-employed under this new legislation.

The individual may be fined and or imprisoned for a term not exceeding 51 months.

See s34 of the Act for further details.

B.      The offence of employing an illegal worker

In terms of the employment market. An employer commits the offence of employing an illegal worker if they employ an employee who is disqualified from employment because of their immigration status; and

The person has reasonable cause to believe the employee is disqualified from employment because of their immigration status.

A person is disqualified from employment by reason of their immigration status if as an adult they:

1.       Have not been granted leave to remain or to enter the UK; or

2.       The person’s leave to enter or remain in the UK is

a.       Invalid; or

b.      Has ceased to have effect (because of curtailment, revocation, cancellation, passage of time or otherwise); or

c.       Is subject to a condition that prevents employment.

‘Reasonable cause to believe’, means that the employer does not need actual knowledge to be guilty   of the crime. Although the government states in their fact sheet that the intention is only to prosecute rogue employers. I am not taking on board what they are saying and would advise employers to take make sure that the migrants they employ are lawfully employed; otherwise they will be an easy target to be fined and prosecuted.

The employer (you) can be imprisoned for up to five years under the new legislation.

Likewise if you’re a rouge landlord and a repeat offender; the new law allows the authorities to close down your business for 48 hours.

What is even more important for you to realise is that the law specified above will take effect on 12 July 2016.

See s35 of the Act.

English language requirement for public sector workers

Public sector employers will have to ensure that staff who interact with the public must speak English. There will be a Code of Practice outlining compliance. This has to be drawn up!

The public authorities must have a complaint procedure in place, so that members of the public can complain.

Public sector workers will include NHS staff; so again I think this new legislation is at risk of being challenged.

See s77 of the Act.

 The Skills Workers Charge

The government has decided that to incentives employers in the UK to use British workers over foreign workers.

In order to actively encourage a change in behaviour the government is going to introduce a charge for employing skill workers from outside the European Economic Area. It is proposed that this will take effect in 2017.

Employers will be charged £1,000 for tier 2 skilled employees from certain skill sets. However there will be a reduction in the charge to £364 in relation to small organisations or charities.

The minimum salary also for employing such a person will increase from £25,000 to £30,000.

There is an exemption to the charge. It will not apply to PHD student jobs; or students who switch from student visas to work visas.

 Specific rule changes for migrants

·         Bank Accounts

Banks and building societies will have to check the status of the account holders in order to ensure that they are entitled to reside in the UK. There will be a charge and this will no doubt be passed on to customers.

Where the bank or building society ascertains that a migrant is not lawfully entitled to reside in the UK. The organisation in question must report potential illegal migrants to the Home Office. The Home Office will probably do their own checks. If they are agree with the bank, then the bank will be ordered to close the account down. Alternatively the Home Office will apply for a freezing order.

See s45 of the Act.

·         Driving Licence

A migrant who is not a lawful resident in the UK, cannot drive under the Act. If the person drives they commits the offence of driving when unlawfully in the UK. The person may receive a penalty and or imprisonment not exceeding 51 weeks. The motor vehicle of such a person may be seized.

I assume that the road insurance of such an individual may be invalid. Hopefully it would still be honoured in relation to any passengers or innocent third party as a result of a road accident.

See s44 of the Act.

This picture was added for a bit of fun!

Conclusion

A prudent employer who has read this note will immediately check their right to work procedures. Make amendments to the procedure to ensure compliance with the new law.

It would be sensible to check the immigration status of employees. You could explain to the employees in question that the law has changed and that everything is under reviewed.

For the landlord or agent, check your procedures for determining the status of tenants. If you have not done checks on the immigration status of your tenants for a while; now might be a good time for a review.

Annual checks all around may be prudent as well as checks when you are taking on a new employee or a new tenant.

Employers and landlords however must not forget that the discrimination legislation still exists and they must comply with it.

There is also the human rights legislation which is applicable in this area of law. I suspect lots of cases will be commence as a result of this new legislation.

Client's Newsletter - 25 May 2016

This issue looks at:

·         Is France right to introduce a ‘right to disconnect’ law?

·         Maternity Rights.

·         Should ‘employers’ or ‘third parties’ dictate appearance at work?

    Is France correct to introduce a ‘right to disconnect’ law?

France is in the process of drafting a ‘right to disconnect’ law. This is the right of employees to disconnect from social media, telephone calls from employers and emails after work. Thus an employer will not be allowed to request that an employee should respond to emails in their own time. Nor for that matter will employees be expected to respond to telephone calls. The intention of the French legislators is to enable employees to cut off from the digital world of work. It is fair to say that we are more connected than ever because of mobile telephones, portable computers and tablets. Some argue that we may at time suffer from digital burn out. Thus a right to disconnect law may appear attractive. However I am not sure if it would really afford employees the protection that the French legislators intend. So we will have to wait and see what the legislators produce as new law.

In the interim, I cannot see the introduction of such a law in the UK under the current government. This  does not mean UK staff are not afforded any protection. Legislation such as the Working Time Regulations and Health and Safety at work can be used to provide employees or workers in the UK with some protection.

Employers will also have email and social media policies which could stipulate a cut off point.

Maternity Rights

Introduction

This short article looks at the rights of women in relation to maternity leave and pay.

Paid Time Off For Ante-Natal Care

·         Pregnant women are entitled to time off from work to attend ante-natal classes.

·         A pregnant woman is entitle to be paid for her absence from work to attend ante-natal classes.

·         No qualifying period is necessary for this employment right.

Health and Safety Risk Assessment

·         A prudent employer would carry out a Health and Safety risk assessment.

·         There is no general obligation to carry out a risk assessment. In O’Neil v Buckinghamshire County Council (2010) IRLR 384, the EAT held  an employer only has a duty to carry out a risk assessment when:

·                            1.       The employee notified the employer of her pregnancy; and

2.       The work carried out by the employee is of the kind that involves a risk of harm or danger to the health and safety of the mother and/ or her baby; and

3.       The risk in question arises from either the processes, work conditions or physical, chemical or biological agents in the workplace.

Maternity Leave

·         A pregnant woman in the work place has the right to 52 weeks maternity leave.

·         26 weeks will be ordinary maternity leave.

·         The second 26 weeks is called additional maternity leave.

·         To qualify for maternity leave the pregnant employee must advise her employer on or before the 15th weeks before childbirth:

o   That the employee is pregnant.

o   The date the employee intends to start maternity leave which can be any time from the 11th week before the date of birth.

·         An employer must then give the employee notice of her return date which an employee is entitled to change; provided the employer is given eight weeks’ notice.

·         If the child is born early, the maternity leave starts the day after the birth of the baby.

During maternity leave an employer and employee can agree up to 10 keep in touch days; however this does not confer a right on the employer. Accordingly the employee does not have to agree to it.

Compulsory Maternity Leave

·         Employees must have at least two weeks off after child birth. If the employee works in a factory, then it is at least four weeks.

Statutory Maternity Pay (SMP)

·         This is available only for eligible employees for a period of 39 weeks.

·         An employee is eligible for SMP if they have worked continuously for their employer for 26 weeks up to the qualifying week – the 15th week before the expected week of child birth.

·         The first 6 weeks the employee will obtain 90% of their average weekly wage before tax.

·         The remaining 33 weeks the lowest of £139.58 or 90% of their average weekly wage. This is paid in the same manner as income and is therefore subject to tax and NI.

·         If the baby unfortunately dies after being born or is still born after the 24th week of pregnancy, the employee will still be entitled to leave or pay.

Maternity Allowance

·         Women who do not qualify for SMP may be able to obtain a maternity allowance for a period of up to 39 weeks. The person must have been employed or self-employed for 26 weeks out of 66 weeks before the expected week of child birth. The allowance is £139.58 per week (or 90% of average earnings whichever is the lowest figure) and is tax free.  Payment starts 11 weeks before the baby is due.

Pregnancy Related-Illness

Maternity leave and statutory maternity pay will start automatically if an employee has a pregnancy related illness in the last four weeks before the baby is due.

Holiday entitlement

·         An employee is entitled to holiday as specified in their contract of employment and this includes mothers on maternity leave.

·         The holiday entitlement of the employee on maternity leave will accrue as if they were still at work in the office. Some mothers simply add the holiday entitlement to their maternity leave.

·         If the holiday is not taken, the government allows up to 28 days to be carried over to the following leave year. This is a factor you should discuss with your employer.

Shared Parental Leave

·   The law has been reformed so that leave can be shared between parents.

·    Shared Parental Leave Pay is £139.58 per week (or 90% of average earnings whichever is the lowest figure) and is tax free.  Payment starts 11 weeks before the baby is due.

Should ‘employers’ or ‘third parties’ dictate appearance at work?

Everyone would have heard of the commotion caused recently by the young lady Nichola Thorp, a temp who was asked to leave work (for a day) without pay; because she failed to wear high heels as part of the work dress code. Nichola Thorp started a petition which was signed by 100,000 people. The matter of women and high heels at work will at a later date be discussed by our MP's in parliament. 

Ms Thorp’s employers changed their dress code policy because of the adverse publicity and she is now allowed to wear high heels. Good for her. What amazed me is that she still has a job.

On Facebook I then posed the question to friends, if Nichola Thorp was a black female would she still have a job? Many refrained from answering the question which was what I expected. One brave man said’ no’. A black female in exactly the same position would have lost her job. Sadly I agreed with the statement.

The closest case I could find  was a young lady, Lara Odifin’s who had been offered a permanent job; however the job offer was withdrawn because her proposed employers were not prepared to accept Lara Odifin with her hair in braids. The young lady posted the matter on Facebook. She did not name the company because she did not want to take legal action and she did not want to be sued.

Both issues Ms Thorp 'shoes'. Ms Odifin 'hair' related to dress code.

It is true, employers can dictate what staff wear at work; however the policy must be fair and reasonable. It should not be discriminatory.  There have been many problem cases regarding dress code and religious symbols. The most famous case of all was Eweida v British Airways which went all the way to the European Court of Justice. 

Lara Odfin prospective employer may have discriminated against her. Lara Odiifin had a potential claim; claims however costs money and Laura took the practical approach and decided not to sue. I have no criticism of this approach. It is pragmatic. Prospective employers who discriminate can be sued. A factor many overlook by them and it is likely Ms Odfin was not truly aware of her rights.

Newsletter - May 2016

This issue looks at:

• Security and commercial contracts.
• The National Minimum Wage
• Dress Codes at work

Security Risks

In 2018, the General Data Protection Regulations (GDPR) will come into force. One of the effects is that if there is a breach of data security, the data controller and the data processer will both be legally responsible for the lack of security compliance. This is not the position at the moment. For example if we look at the TalkTalk breach, only the data controller would be liable for any fall out.

Under the new rules, the parties are obliged to be proactive in terms of notifying the Information Commissioner of any significant breach. The data subjects will also have to be notified of the breach.

The GDPR makes clear that if there is a breach, the data subject has the right to claim compensation. In the future there will be a lot of focus on this aspect of the regulation as clients seek compensation.

When looking at contracts between data controller customers and data processors. The controller will want contracts that have unlimited liability clauses and uncapped indemnities. This is unrealistic and data processors may decide to pull out of the market; rather than being exposed to such risks.

Instead the parties should consider focusing on:-

1.       Agree the technology  and procedures to be in place to keep data secure; and

2.       Ensure that the system is tested frequently to avoid breaches;

3.       Review security risks from time to time as threats do evolve.

4.       Have the contract specify what happens when there is a security breach.

5.       Negotiate the extent of liability and indemnity to be provided.

6.       Putting insurance in place.

The above would be beneficial to all as a contract that focuses purely on liability and indemnity is of no use where there is a massive security breach and the company simply folds. A likely event for smaller firms with significant breaches.

National Minimum Wage

On 1 April 2016, the national minimum wage became law. Thus for anyone over the age of 25, an employer will have to pay £7.20 per hour.

The national minimum wage will be paid in accordance with an employer’s work reference period. Thus if you pay your staff on the 28 day of the month, the national minimum wage for your company will need to be paid on the 28 day.

It therefore stands to reason that if an employee is 24, he will not get the minimum wage until the first pay date after his 25 birthday.

The average employee will receive an additional increase in income of approximately £1,000 as a result of the new minimum wage. This may lead some employers to try and restrict their work force to the under 25. Attempts may be made to do this contractually or a simply refusal to accept older workers for the position on offer after an interview; even though they are the right person for the job.

The law is clear, age discrimination is prohibited under the Equality Act 2010 and care should be taken as the savvier employee (or prospective employee) may bring a claim. If for example you had a contract terminating employment at 24 ½, then such an employee can bring a potential claim for automatic unfair dismissal (no need to establish 2 years employment) and a claim for age discrimination. Remember in discrimination claims there is no limit to liability.

Wearing High Heels

Price Waterhouse Cooper (PwC) were in the lime light when a young actress, Ms Nicola Thorp who was employed as a temp was sent home without pay because she refused to wear high heels all day in her day job as a receptionist job.

The young lady was sent home and fought back by creating a petition requesting parliament should make it illegal to force women to wear high heels at work.

 PwC have been quick to point out that this is not written in the firm’s dress code. This aspect of the dress code was in the policy of the temp agency.

So long as it is reasonable, employers can define acceptable staff wear in the workplace. Whereas in the 1960’s it might have been reasonable to expect women to wear high heels all day; in 2016, there is the real risk that such behaviour would be deemed sex discrimination under the Equalities Act 2010. No one should be surprised to learn that the temp agency that employed Ms Thorp has immediately changed its work dress code policy as a result of a discussion with PwC. Ms Thorp is free to work wearing her pumps.

 When I last looked at Ms Thorp’s petition, approximately 63,000 people had signed it. I believe she needs to get to 100,000.

A constant source of amusement with this petition is its potential impact on the fashion industry and the ‘catwalk’. No doubt they will argue the shoes are worn only short term and are essential for this particular the job.

This article is not intended to constitute legal advice, if assistance and advise on the legal topic covered is required, please do not hesitate to contact Johanna Cargill by completing the contact form which can be found here