Client Newsletter Blog November 2016

Christmas 2016

Well Christmas is almost upon us. For most people it is a time of great joy and happiness as they get to spend quality time with family, friends and some old acquaintances. People give and receive presents if they can afford it. Parents try and make an effort to ensure that their children have a magical time. For some parents this means a few lies, others prefer to be honest.

Christmas behinds the scenes[i] involves a lot of washing, cleaning, shopping, painting the house, baking, decorating, presents and even more baking and cooking. The amount that gets done is usually phenomenal. Most people are exhausted Boxing day!

I found a note on a study of 2000[ii] parents which found that 1 in 10 [iii]men admit that they do nothing around Christmas time. Mums tend to take on an additional 24 chores.[iv]

A joyful Christmas usually means one spouse, usually the woman has worked hard. This does not mean for one minute that fathers/ men do absolutely nothing. It’s just a successful Christmas tends to falls on women with usually a small contribution being made by the husband. The fact that women tend to do the chores causes a lot of argument around Christmas time. Six out of ten couples argue with about Christmas chores.

January therefore is usually the busiest month for a divorce/ family lawyer’s calendar as many people make it their new year’s resolution to divorce or part company with their spouse. More often than not it is the wife who wants to separate. There is no quick fix to this problem. At Christmas time the only advice I can give is what people already know they should do:-

·        Share the responsibility of Christmas or even better, the offending spouse should give time off to the spouse that tends to do most of the work.

·        Sharing work alleviates the pressure of Christmas.

·        List what needs to be done and agree who should carry out what chores.

·        Do not tell your spouse how to do the chore, leave them to get on with it.

·        Appreciate the work carried out.

·        Tips for alleviating the Christmas stress: buy less Christmas presents, reduce the ‘to do’ list, buy cakes, do not bake[v], call do not send cards, scale back on the Christmas decorations, stay at home and cuddle your partner instead of rushing around to try and see everyone. Do what is necessary to reduce the dish washing, so plates that go in the dishwasher will be better than using the fine china. I could suggest paper plates, but I would not do so. You could also do finger food instead of the usual huge feast[vi].

I hope this helps and you find some tips to alleviate the Christmas stress in your household. If you think your friends are going down the argument route because of Christmas, please refer them to this article.

If all else fails and come January you or a friend must part company with a spouse. I would suggest that you talk to a counsellor first to see if the marriage/ relationship can be saved

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 by the employment tribunal.

·        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. Failure to do so may result in you losing your job for no good reason. You will not get any legal redress.

[i] I can only write from a Caribbean perspective here. I assume it is the same for most households; but assume other cultures are the same.

[ii] http://thecoupleconnection.net/blog/christmas-chores-who-does-what

[iii] hmm, I think it is much higher

[iv] Again, I feel that it is more than 24

[v] I admit some of my close friends put in their cake orders from last year!

[vi] http://christmas.organizedhome.com/reality-check/ten-ideas-stress-free-holiday-seaso

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.

I wrote an article about the new Act from the perspective of landlords and employers. I then sent the salient points of the newsletter to a few friends on my Whats App handle. The result a few people were ‘shocked’ and requested for more information.

In other words Caribbean people (or any other immigrant group to be honest) who have lived here for many years and who for one reason or another have not bothered to sort out their nationality have just discovered that they are really at risk of being deported.

The story thus far

The purpose of the new Immigration Act is to make life tougher for “illegal workers” to live and work in the UK. To punish those employers who employ illegal workers and landlords who do not play by the rules and turn a blind eye and continue to rent to them.

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

1.       Residential Tenancies

2.       The new offence of illegal working

3.       The offence of employing an illegal worker

4.       Skilled workers charge

5.       Significant rule changes for migrants – bank accounts & driving a car

6.       Charging employers recruiting from outside the EEA

7.       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. A landlord who fails 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 they 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 worker. 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 that a tenant is not residing in rented property legally the tenant’s landlord 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

A.      The offence of Illegal working

The legislation introduces the new offence of ‘illegal working’.

An immigrant 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 anyperson 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 to say that the definition of ‘work’ is very wide and catches almost anything really. The immigrant is likely to be at risk in my opinion if they are self-employed under this new legislation. Technically it is illegal to employ a self-employed hairdresser who does not have her papers. Nor for that matter can you use a chef or waitress who is not in the country legally. If you for example run a mini-cab company, can must not use illegal migrants as ‘self-employed’ cab drivers!!!

The individuals concerned may be fined and/ or imprisoned for a term not exceeding 51 months.

It is also important for people to understand that their wages are illegal, the proceeds of crime and can be seized by the police under the Proceeds of Crime Act.

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 individual 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 to have ‘actual knowledge’ to be guilty of this offence.

An employer can be imprisoned for up to five years under the new legislation.

Employers who are repeat offenders: the new law allows the authorities to close down businesses for 48 hours for non-compliance.

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

See s 34 & 35 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.

I am ashamed to say that Caribbean (or other countries) accents; may be caught by this provision.

See s77 of the Act.

The skills workers charge

The government has decided that to incentivise 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.

Nurses are classified as tier 2 skilled workers; however they are on the skills shortage list and are protected. I must say for now! Sorry as I know from personal experience that this group works very hard.

The minimum salary also for employing a skilled worker has been increased 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.

DVLA as part of its checks will have to make sure that it checks that the person applying for a driving licence in the UK has a legitimate right to be here before issuing a licence.

Police and immigration officers will have a right to search and seize any driving licence that belongs to an illegal migrant.

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.

Report first and appeal later

This policy of the UK government which was established by the Immigration Act 2014. Then it was concerned really with migrants who had no rights to stay in the UK or those who were convicted criminals with no residency rights to remain. These people were thrown out of the UK and if they wanted to appeal their deportation. They could appeal from their home country. However the new rule did not prohibit people who had human rights claims. They were legally entitled to appeal whilst remaining in the UK. When I refer to human right claims; what I mean is that if you were say 70 years old and your children and grandchildren were legitimately here. You would have a right to family life (as a potential human rights claim); accordingly it would be for this reason why you would be allowed to stay in the UK and appeal.

Under the new legislation:  ‘the deport first and appeal later scheme’ has been extended to include all immigrants cases (appeals and judicial reviews). So it does not matter that the case in question raises a human rights issue; if your right to stay in the UK has been refused. You must leave the country or you will be deported and you can appeal from your home country. Unless you can show that the action would cause serious harm.

It is important to obtain sound legal advice. I am happy to refer individuals to immigration lawyers known to me; because I am not an immigration lawyer.  I am happy to advice on immigration law as it impact employers and landlords.

Employment Claims -Time Limits

Introduction

We will take a brief look at the case of Adams v BT PLC [2016] UKEAT/0342/15/LA. The case is significant because it reminds tribunals that there are occasions when a Judge’s discretion can be used to allow a claim which had been originally lodged in time and rejected. Then the amended claim was lodged as soon as practical, but out of time.

References made are in relation to the case. A link to the case can be found at the end of this article

The Case

Ms Adams claims against her employers was that she had been unfairly dismissed and discriminated because of her race.

Ms Adams went through the early conciliation process. It was not successful. Conciliation was completed on 18 January 2015, it was on this date she received an early conciliation certificate.

The time limit for both of these complaints was three months. Time expired on 17 February 2015; a month after the end of conciliation certificate had been received. Ms Adams went to her solicitors on 16 February 2015. He drafted the claim and it was submitted at the East London Employment Tribunal that day. The claim was rejected because Ms Adams had not put the correct ACAS early conciliation number on the claim.

The rejected claim was received on 19 February 2-16 by the Claimant’s solicitor who immediately made the necessary amendments. The claim was resubmitted before 4pm on 19 February 2015.

Case at first instance

The Judge decided it was correct for the tribunal to reject the defective claim form. The Judge felt she had no alternative but to reject the second claim form which was correct, because it had been issued out of time. In her judgement the Judge focused on the first claim and not the second.

The Judge rejected the claim because although the legislation allowed for amendments; if rectified. It was clear that if your lodged a rectified claim, the claim would be treated by the tribunal, as being presented to the tribunal on the date that the defect was rectified and accepted by the tribunal; accordingly under this rule the claim was out of time[i] (19 February 2015).  

The Judge looked at the issue of whether it was reasonably practical for the Claimant to have presented her unfair dismissal claim on time. The Judge felt that it was the Claimant’s own fault and that of her representative for the incomplete form why it was not presented on time. The Judge was satisfied that it was reasonably practical for the first claim to have been presented on 17 February 2015.

In relation to whether it was just and equitable to grant an extension of time to allow the race discrimination claim. The court held that there was no explanation why the Claimant did not complain of the earlier acts of discrimination within 3 months of them occurring.

The judge felt having examined and considered all matters In this case, she was not satisfied that it would be just and equitable for the race discrimination claim to proceed, notwithstanding the fact that it has not been presented in time[ii].

 Appeal to the EAT

On appeal for the Claimant it was stated that there was an error of law on the part of the Judge as she had concentrated on the first claim when the correct focus should have been on the second claim and whether it was reasonably practical to present the second claim in time. The Claimant relied on the authority of Software Box. A case to which the Employment Judge had failed to refer.

The Respondent’s representative accepted elements of the Claimant’s argument, that the Judge should have looked at the second claim and that Software Box was a relevant authority. However he argued that the tribunal judge was not prevented however from taking into consideration the first claim, nor was she wrong in her conclusion on the law. The Claimant at the end of the day could have submitted her claim on time without defects. She had the support of a competent solicitor.

The Judge stated that the Employment Judge had focused too much on the first claim to the exclusion of the second claim. The Employment Judge had erred in law, so that her decision on the question whether it was reasonably practicable to present the second claim in time could not stand[iii]. The focus should have been on the second claim and whether there was any impediment to the timely presentation of that claim. The failure to address this issue was an error of law.

In relation to the issue of whether it was just and equitable to allow the race discrimination claim to succeed, it was argued on the Claimant’s behalf that the Judge had made an error of law by not taking into consideration the balance of prejudice between the parties and in particular prejudice to the Claimant[iv].

The Respondent’s representative tried to argue that the Employment Judge had by implication considered the issue of prejudice. This was rejected by the Judge.

The balance of prejudice is a material factor and was significant in this case. It was not a factor the Judge had taken into consideration. The question of prejudice is significant because on one hand the Claimant lost the right to bring a discrimination claim on its merits, and on the other hand the short delay caused no prejudice to the Respondent’s in conducting its defence of the claim.

The failure to take this into account is a significant factor. The tribunal’s decision that it was not just and equitable to extend time could not stand. The court held it was just and equitable to extend time for the presentation of the racial discrimination claim.

Conclusion and Tips

Employees who wish to present a claim, try and do so a week before the deadline. Just in case there are minor issues as presented by this case.

It is always good, if you are the lawyer acting for a client who is about to submit a claim ‘just in time’ to get a third party to check it for any obvious errors.

Link to case

http://www.employmentappeals.gov.uk/Public/Upload/15_0342fhwwATLA.doc

[i] Paragraph 8

[ii] See paragraphs 13 & 14

[iii] Paragraph 21

[iv] Paragraph 2