The dangers of employees entering the UK without permission to work
Liza Minnelli recently arrived in the UK to perform in a series of concerts. On arrival at Heathrow Airport, Liza was detained when it became apparent that Liza's promoter had not completed the necessary work permit application process prior to entering the UK. As a consequence she did not have permission to work in the UK. Although her team maintained that they had applied for a work permit, owing to the current delays at the UK Border Agency with processing work permit applications, the application had not been approved. Liza was extremely fortunate that the UK Border Agency intervened and processed her application that same day. As a consequence of their intervention, Liza was able to perform at a concert that night.
This favourable treatment is extremely rare. There was a genuine risk that the Immigration Officer could have removed Liza from the UK and sent her back to the US for attempting to enter the UK to work without permission to do so. Had they done so, Liza could have been banned from returning to the UK for up to 10 years depending on how she might have been removed. It is also worth bearing in mind that although the UK Border Agency intervened on this occasion, Liza and her team attracted a lot of unwanted negative publicity.
It is essential that employers are aware of the current delays affecting work permit applications and build these into their workforce planning. Employers must ensure the application process is complete and the permit has been issued to the individual before they enter the UK. If an individual attempts to enter the UK with an intention to work but without permission to do so they risk being deported and jeopardising their ability to return the UK for up to 10 years. Further detailed advice can be obtained from members of our immigration team.
Introduction of an Australian Style Points Based System
The Government is also in the process of launching an Australian style Points Based System which will replace the current work permit scheme and radically change what employers must do in order to employ non EEA individuals. As part of these changes, employers will be required to register as Sponsors with the UK Border Agency and agree to onerous policing duties before they are able to transfer employees to the UK. Employers intending to recruit non EEA nationals in Autumn 2008 should currently be preparing to register as a Sponsor under the new regime and making their application to the UK Border Agency. The new regime will go live in Autumn 2008.
The immigration team will be presenting a seminar on the new Points Based System and practical advice for employers in July.
Please contact Tracy Evlogidis for more information on immigration issues.
HMRC guidance on non-cash benefits and salary sacrifice during maternity leave
As mentioned in April's edition of Inform, for women whose expected week of childbirth is on or after 5 October 2008, there will be no distinction between the provision of non cash benefits during ordinary maternity leave and additional maternity leave. HMRC has now published guidance on the effect of these changes, which will cover benefits such as the provision of a company car, gym membership and health insurances. Importantly, contractual holiday will continue to accrue during additional maternity leave. Employers will need to amend their staff handbooks to reflect these changes. Please contact a member of the employment group for assistance with this.
The guidance also deals with the impact of salary sacrifice arrangements on the amount of statutory maternity pay or contractual maternity pay payable to an employee who has agreed with her employer to accept a reduction in her cash salary in exchange for a non cash benefit (for example, childcare vouchers).
Treatment of agency workers
On 20 May 2008 the Government, CBI and TUC issued an agreed joint statement in relation to the treatment of agency workers. The statement provides that:
agency workers will be entitled to "equal treatment" once they have been in a job for 12 weeks;
"equal treatment" will mean that the agency worker will be entitled to at least basic working and employment conditions to which they would have been entitled if they had been recruited directly by the undertaking to occupy the job. However this will not include "occupational social security schemes" (which presumably includes statutory sick pay and pension payments).
The Government has stated that it will now "engage with its European partners to seek agreement on the terms of the Agency Workers' Directive that would enable this agreement to be brought into legal effect in the UK." The Government hopes the EU agreement will be obtained in time for the necessary UK implementing legislation to be introduced in the next parliamentary session (2008/2009).
If you require further information on any of the above topics, please contact Eliza Nash
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