30 November 2007

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.