Legal update
PLANS TO IMPLEMENT THE TAYLOR GOOD WORK REPORT
The government has announced plans to implement certain of the recommendations contained in the Taylor Good Work Report issued earlier this year. The written statement of employment particulars will have to be given from day one of employment, rather than within 8 weeks of commencement as at present. The rules for calculating a week’s pay for holiday pay purposes are also to be altered by means of increasing the reference period for variable pay from 12 to 52 weeks.
These two changes will be implemented by means of the Employment Rights (Employment Particulars & Paid Annual Leave) (Amendment) Regulations 2018 and will come into force on 6 April 2020. It is also planned to abolish the Swedish derogation for agency workers which in certain circumstances allows agency workers to be employed on cheaper rates than permanent counterparts, beyond the 12 week limit. This is to be enacted by the Agency Workers (Amendment) Regulations 2018 and also comes into force on 6 April 2020. The Employment Rights (Miscellaneous Amendments) Regulations 2019 will extend the right to a written statement to workers, not only employees, and also increases penalties for aggravated breaches of employment law by employers from £5,000 to £20,000. These regulations will also lower the percentage required for a valid employee request for the employer to negotiate an agreement on informing and consulting its employees from 10% to 2%. Other changes liable to be implemented are as follows: –
Legislation to streamline the employment status tests so they are the same for employment and tax purposes; A ban on employers making deductions from staff tips (presumably this will happen by extending the existing unlawful deductions laws although this is not clear);
The government is also proposing a right to request a fixed working pattern for those who do not have one after 26 weeks on a non-fixed pattern. This might be tackled in the same way as flexible working requests i.e. a series of procedural requirements an employer must follow, but with discretion for the employer to refuse and financial penalties if breached. Implementing legislation is awaited.
UK IMMIGRATION REQUIREMENTS FOR EU CITIZENS ARRIVING AFTER A NO DEAL BREXIT
If Britain leaves the EU without agreeing a deal, the government has announced immigration provisions to be applied to EEA and Swiss Nationals coming to the UK after that date. The government will seek to end free movement as soon as possible in the event of a no deal Brexit and there will follow a transitional period until the UK’s new skills based future immigration system comes into force on 1 January 2021. Within the transitional period, EEA and Swiss Nationals plus their family members will be able to come to the UK for up to 3 months without applying for any immigration status or visa. However, if they wish to stay longer than 3 months they will need to apply for and obtain European temporary leave to remain. European temporary leave to remain will be valid for a 3 year period which is not extendable. This will not lead to indefinite leave to remain in the UK or to status under the EU settlement scheme. In these circumstances, to be able to stay for longer than 3 years the individual will require to make a further application under the UK’s new skills based future immigration system after 1 January 2021. Applications will be subject to identity, criminality and security checks and will result in an application fee, the level of which is not yet known. Non-EU family members who wish to accompany or join an EU citizen under these arrangements will have to apply in advance for a family permit but only close family members which include spouse, partner and dependent child under 18 years will qualify. The announcement does not affect EEA and Swiss Nationals who are in the UK before the UK leaves the EU on 29 March 2019. These individuals will be eligible to apply for settled or pre-settled status under the EU settlement scheme irrespective of whether the UK leaves the EU with a deal or not but must apply by 31 December 2020 in the event of a no deal situation.
HOME OFFICE UPDATES GUIDANCE TO PREVENT ILLEGAL WORKING
The Home Office has updated its Code of Practice in preventing illegal working which sets out the prescribed checks that an employer should conduct to avoid a civil penalty in the event of illegal working. In particular, the new code provides that employers can establish a statutory excuse against liability for an illegal working civil penalty by conducting an on-line right to work check, using the Home Office on-line right to work checking service. Click here for more.
REDUNDANCY PROTECTION
Government Consultation on Extension of Rights for Women following Maternity Leave and New Parents.
A consultation paper has been published by the government in response to a recommendation in the Taylor Review of Modern Working Practices. Regulation 10 of the Maternity & Parental Leave etc Regulations 1999 currently stipulates that if a woman on maternity leave is selected for redundancy, she must be given priority over other redundant employees in respect of offers of suitable alternative employment by her employer. The proposal made in the consultation is to extend this right to women who have returned from maternity leave in the previous 6 months and not only those who are currently on maternity leave. Further, the government is considering extending this right to women who have advised their employer that they are pregnant. Lastly, the consultation is seeking views on extending the right to those on adoption leave, shared parental leave and longer periods of parental leave. The consultation period closes on 5 April 2019.
APRIL 2019
Increases to Statutory Maternity, Paternity, Adoption, Shared Parental Leave and Sick Pay
As from 7 April 2019, the payments in respect of statutory maternity pay, paternity pay, shared parental pay and adoption pay will be increased from £145.18 per week to £148.68.
As from 7 April 2019, the rate of statutory sick pay will increase from £92.05 to £94.25 per week.
EFOBI v ROYAL MAIL GROUP
The Court of Appeal has reaffirmed that in discrimination cases the initial burden to prove a prima facie case rests with the Claimant before the burden of proof shifts to the Respondent. Mr E was a black Nigerian who held post-graduate qualifications in information systems and forensic computing. He was employed by Royal Mail as a postman but wished to move into a management or IT role. He made many applications but was unsuccessful in all of them and eventually complained to an Employment Tribunal of direct race discrimination. During the hearing Royal Mail did not put forward any evidence about the identity or qualifications of the candidates who had been successful and nor did Mr E (who represented himself) seek that information from Royal Mail under Tribunal procedures. The Tribunal found that Mr E had not shown facts from which discrimination could be inferred and the claim therefore failed. The Employment Appeal Tribunal had concluded that the Tribunal should have considered whether it ought to draw inferences from Royal Mail’s failure to provide information about the successful candidates. However, the Court of Appeal disagreed and found that the burden was on Mr E to prove his case at the first stage and that he had failed to do so.
