New fines for illegal
working from February 2008
Following
consultation earlier this year, the Government has
published new measures to prevent illegal working
which will come into force on 29 February
2008.
The
Government has proposed a new system of penalties
for employers who employ adults subject to
immigration control in breach of the terms of
entry or stay. The penalties comprise a criminal
penalty which will be triggered against those who
knowingly employ illegal migrant workers and a
civil penalty relating to negligent recruitment
practice.
Employers
who knowingly hire illegal workers risk an
unlimited fine and a prison sentence. Those who
negligently hire illegal workers will face a civil
penalty fine of up to £10,000 for each offence
from February next year. Employers will be excused
from paying a civil penalty if they produce and
check specified documents. They will also be
required to:
-
take
all reasonable steps to check the validity of
the document;
-
retain
the copy or copies for at least two years after
the employment comes to an end;
-
satisfy
themselves that any photograph in the document
is of the prospective employee or
employee;
-
satisfy
themselves that any date of birth in the
document is consistent with the appearance of
the prospective employee or
employee;
-
take
all other reasonable steps to check that the
prospective employee or employee is the rightful
owner of the document;
-
retain
a copy of the whole of any document which is not
a passport or other travel document in a format
which cannot be subsequently altered;
and
-
copy
specified pages of a passport or other travel
document in a format which cannot be
subsequently altered.
Unfair dismissal claims -
reasonable practicability
The
Employment Appeal Tribunal (EAT) has confirmed
that when an employer dismisses an employee's
appeal against his dismissal and brings the
statutory dismissal or disciplinary procedure to
an end on the very day that the time limit for
claiming unfair dismissal expires, the tribunal is
entitled to find that it had not been reasonably
practicable for the employee to submit his unfair
dismissal claim in time. The EAT also upheld the
observation of the employment tribunal that the
purpose of regulation 15 of the Employment Act
2002 (Dispute Resolution) Regulations 2004 (the
Dispute Resolution Regulations) is to encourage
parties not to start proceedings until internal
procedures had been completed.
This
case examines the intersection between case law on
the question of when it is "reasonably
practicable" to begin tribunal proceedings and the
extension of time to begin proceedings under
regulation 15 of the Dispute Resolution
Regulations. Complaints of unfair dismissal must
normally be presented to an employment tribunal
within three months of the effective date of
termination, unless it was "not reasonably
practicable" to do so, in which case the tribunal
can allow a reasonable extension. Where the
statutory dismissal and disciplinary procedure
applies, the normal three-month time limit for an
employee to present certain tribunal claims
(including unfair dismissal) may be extended by an
additional three months (regulation 15 of the
Dispute Regulations). The extension applies if, at
the time the normal time limit expired, the
employee had reasonable grounds for believing that
a dismissal or disciplinary procedure (statutory
or otherwise) was being followed in respect of
matters that consisted of or included the
substance of the tribunal complaint.
In
this case, Royal Bank of Scotland v
Bevan, the employer brought the dismissal or
disciplinary procedure to an end just 5 hours
before the expiry of the normal three month time
limit for claiming unfair dismissal. Until that
point, the employee had reasonably believed that a
dismissal procedure was still being followed and
he was expecting that he would present his claim
if and when he learned that the appeal procedure
was unsuccessful. Although this was considered to
be a reasonable stance for an employee to take,
since the employee ceased to hold that belief at
the expiry of the time limit, time was not
automatically extended for an additional three
months.
However,
the EAT confirmed the tribunal had been entitled
to find that it had not been reasonably
practicable for the employee to submit the unfair
dismissal claim in time. What constitutes
reasonably practicable is a matter for the
tribunal and the 5 hour period was "a miniscule
time" for the employee to get together a proper
tribunal application.
TUPE-related changes to
terms of employment - EAT decision
upheld
The
Court of Appeal has upheld the decision of the EAT
in Regent Security Services Limited v
Power (see our earlier report
of the EAT decision). It has confirmed that
employees who transfer under TUPE cannot be
deprived of their existing rights that transfer
with them and can choose between enforcing the
rights that transferred with them under TUPE or
rely on any new rights granted by the transferee.
The transferee cannot rely on TUPE to avoid being
bound by any new terms it has agreed with the
employee.
The
Court of Appeal confirmed that it would be
inconsistent with the legislative aim of
protecting the workforce to refuse them benefits
contractually conferred by the transferee. An
employee's rights on transfer are not being
safeguarded if he is prevented from taking the
benefit of a term that was agreed with the
transferee on or after the transfer. Employees
will retain their existing rights on a TUPE
transfer and these rights cannot be taken away,
even with their agreement. However, nothing
prevents those employees from obtaining additional
rights by reason of the transfer. This means that
the transferred employee can then choose between
enforcing the transferred right or the newly
obtained right.
Age discrimination claim
against Freshfields will not be
appealed
Whilst
the case hit the headlines for being one of the
first decisions under the new age equality
legislation, former Freshfields Bruckhaus Deringer
partner Peter Bloxham has announced that he will
not be appealing the employment tribunal decision
to reject his age discrimination claim against the
firm (see our report of this case in our earlier
update).
Freshfields has also dropped its claim against
Bloxham to recover its costs in defending the
claim.
Employment Tribunal
President orders retirement claims to be stayed
Following
the employee's successful appeal to the EAT in
Johns v Solent SD Ltd against the
tribunal's decision not to stay her age
discrimination claim (as reported in our last update),
the President of the Employment Tribunals has
issued a Direction ordering all current and future
claims raising the same issue to be stayed pending
the decision of the European Court of
Justice (ECJ) in the case brought by the campaign
group Heyday (the Heyday case is outlined in an
earlier update).
The
issue in Johns is whether regulation 30
of the Employment Equality (Age) Regulations 2006,
which permits employers to dismiss employees who
have reached a normal retirement age, is contrary
to the Equal Treatment Framework Directive. The
ECJ's decision in Heyday is not expected until
early 2009.
Vulnerable workers and new
agency regulations
The
Conduct of Employment Agencies and Employment
Businesses (Amendment) Regulations 2007, which
will amend the Conduct of Employment Agencies and
Employment Businesses Regulations 2003, have been
laid before Parliament. The new regulations are
due to come into force in April 2008 and reflect
the Government's consultation on measures to
protect vulnerable agency workers (outlined in our
earlier update).
New support announced for
employers and GPs to tackle stress-related
sicknotes
The
Government will treble the number of employment
advisers in GP surgeries and pilot a new £8m
advice and support service for smaller businesses
as part of a new approach to help people with
stress and other mental health conditions find and
keep work.
The
package is due to include:
-
the
development of a National Strategy for Mental
Health and Work, to ensure a coordinated
response across government to the challenges
faced by people of working age with mental
health conditions and to improve their
employment chances. The strategy will be
overseen by a group of business, medical,
academic and stakeholder representatives.
-
an
advice and support service for employers,
especially smaller businesses, will be piloted
to help them to manage and support people with
mental health conditions to remain in or return
to work. The possibility of this service also
providing support and advice for GPs will be
explored as part of efforts to more closely
align employment and healthcare
services.
-
the
expansion of the pilots placing Jobcentre Plus
advisers in GP surgeries, to treble the
capacity. The enlarged pilots will have a
particular focus on supporting people with
mental health conditions and will be supported
by a roll-out of an educational programme for
GPs on health and work issues, focusing
specifically on mental health and
employment.
-
changes
to the process for issuing medical certificates,
currently being developed with employers,
healthcare professionals and their
representative bodies. These will reflect the
emphasis on "capacity" rather than "incapacity"
and will make it easier for GPs to provide more
helpful advice to patients and their employers
about their fitness for work, especially for
those with mental health conditions.
The
package includes £13 million of new dedicated
funding over 3 years which will support the
employer advisory service (£8 million) and the
Jobcentre Plus advisers in GP surgeries pilot
expansion (£5 million). Detailed proposals
on the employer advisory service and advisers in
GP surgeries pilots are being developed and it is
anticipated they will commence during the second
half of 2008.
TUC asks for £6 minimum
wage
The
TUC has called on the Low Pay Commission (LPC) to
increase the national minimum wage to more than £6
an hour next year. The TUC will urge the LPC to
recommend the best minimum wage rates the economy
can afford, and to advise that the adult rate
should be payable from 18 (and not 22 as it is at
present). The TUC considers that all the signs
point to the UK being able to afford a £6 hourly
wage.
UK employers lacking in
Christmas spirit
It
may not even be December yet, but Christmas cheer
is already apparently missing from many
organisations this year, according to the
Chartered Management Institute's annual 'Christmas
Outlook' survey.
The
survey of 513 managers reveals a decline in the
number of organisations holding staff Christmas
parties. Although 66 per cent still plan to
host events, the proportion has dropped for the
second consecutive year and fallen from 86 per
cent, in 2002. A growing amount of
organisations also refuse to pay for seasonal
celebrations. This year, 39 per cent will
make no financial contribution to 'office
parties', up 5 per cent on last year. Employers in
the West Midlands appear to be the least generous
with only 48 per cent funding celebrations.
If
that wasn't enough, another survey of 200 UK line
managers has also been published by
Youmanage, which shows that almost all managers
(92 per cent) worry that their staff are having
too many sick or duvet days after excessive
celebrations in the run up to Christmas. 77
per cent said they were concerned about handling
the fall-out from the office Christmas party and
the same number were also worried about how and
when to pay their staff Christmas bonuses. 71 per
cent of managers were also concerned that their
staff spent too much company time doing their
Christmas shopping online, instead of work related
activities.