ELiAction News: September 2017
Welcome to the September edition of the Employment Law in Action newsletter providing you with useful information regarding changes to employment legislation, best practice and latest case information.
Employing EU nationals post Brexit
What we know
Back in June the government published a Policy paper on Safeguarding the position of EU citizens in the UK and UK nationals in the EU. This paper made it clear that once the UK leaves the EU, EU citizens will need to apply to the Home Office for a residence document demonstrating their new ‘settled status’ and that they have permission to work legally in the UK.
Who will get settled status?
The intention is that:
- EU citizens who have been continuously resident in the UK for five years before the cut-off date will be allowed to stay indefinitely by getting ‘settled status’. The cut-off date will be no earlier than March 2017
- EU citizens who arrived before the cut-off date but haven’t been in the UK for five years will be able to get permission to stay until they have accumulated five years, after which they will be able to apply for settled status.
- EU citizens who arrived after the cut-off date will be able to apply for permission to remain after the UK leaves the EU under the future immigration arrangements for EU citizens.
- Family dependants who are living with or join EU citizens before the UK’s exit will be able to apply for settled status after five years in the UK too. This is irrespective of the cut-off date.
- There will be a generic “umbrella” of temporary leave post Brexit to give EU citizens and their families’ sufficient time to make their application.
What has been leaked?
The Guardian newspaper carries news of a Home Office Document entitled the Border, Immigration and Citizenship System after the UK Leaves the EU dated August 2017. Ideas include the development of a much more UK-focused immigration policy and introducing an income threshold for migrants. However, these are only proposals and not signed off by ministers.
The document also speaks (not surprisingly after the Safeguarding paper), of an initial phase of an Immigration Bill, followed by an implementation period of at least two years and a final phase when new rules will be put in place, following the MAC consultation (see below).
What will be the post Brexit rules for new migrants? Have your say!
In July 2017, the government commissioned the Migration Advisory Committee (MAC) to advise on immigration policy post Brexit. The MAC has now issued a call for evidence which closes on 27th October. They have also published a very interesting briefing paper which discusses the UK’s current labour market and immigration policy as well as other countries’ migration systems.
The government has published the latest State Pension age review which proposes that the State Pension age should increase to 68 between 2037 and 2039, earlier than the current legislation which sees a rise between 2044 and 2046. The change will affect everyone born between 6 April 1970 and 5 April 1978.
Currently pensionable age means 65 for men and 63 for women but it is due to be equalised at 65 for both men and women by November 2018. It is then scheduled to increase again to 66 by October 2020 and 67 by April 2028.
Guidance and Principles for the calculation of pension loss published
Assessing compensation for pension loss in tribunals is a complex area and previous guidelines (from 2003) were withdrawn in 2014. However the Presidents of the Employment Tribunals have now published new principles on pension loss compensation in tribunals, together with associated presidential guidance – not perhaps reading of choice but very useful when the need arises.
Why a new act?
The Conservatives made a manifesto commitment to introduce a new data protection act in order to update current provisions and to incorporate the European General Data Protection Directive, which was agreed last year and is applicable from May 2018.
What do we know of the new law?
The government has published a paper setting out what the planned reforms are intended to achieve. The wording of the draft Bill will be published shortly.
The paper confirms that
- The law will be updated. For example the definition of ‘personal data’ will be amended to include IP addresses and internet cookies.
- The Data Protection Act 1998 will be repealed. However, implementation of the new Act will ‘be done in a way that as far as possible preserves the concepts of the (current) Data Protection Act to ensure that the transition for all is as smooth as possible’.
- The new law will bring the UK law in line with the GDPR.
- The new law will apply not just to areas where EU law applies.
Should employers be nervous of the GPDR?
The GPDR does bring changes but there have also been some exaggerated headlines about its potential and this has led the Information Commissioner to launch a series of blogs aimed at putting the record straight in the areas of fines, consent, guidance, the burden on business and breach reporting. The first blog discussed the imposition of fines and said that while focusing on big fines makes for great headlines, it misses the point of the GPDR which is to bring ‘greater transparency, enhanced rights for citizens and increased accountability’, and that the ICO prefers a carrot to a stick approach.
The blog is found here where you can also sign up to receive the future blogs by email.
How will reclaimed fees be dealt with?
As widely reported in July this year, the Supreme Court held in the Unison case, that tribunal fees were set at such a level as to prevent access to justice and ruled them unlawful from the outset.
The method for reclaiming fees is in the process of being worked out but it looks unlikely that it will be required to go before a judge in the tribunal. The Employment Tribunal Presidents have made Case Management Orders confirming that all applications for reimbursement of fees and reinstatement of claims rejected or dismissed for non-payment of fees, will need to be made ‘in accordance with administrative arrangements to be announced by the Ministry of Justice’.
The Order also lifted the halt that had been imposed in early August on all claims and applications made to the Employment Tribunal in reliance on the Unison decision.
This has long been a grey area with court decisions suggesting that standby time at an employer’s premises is likely to be working time, but standby time away from base was less likely to be.
The Attorney General (AG) in Ville de Nivelles v Matzak (C-518/15) has now applied some clear thinking to the point in a case which concerned a firefighter engaged on standby duty who was not required to be at his employer’s premises, but was required to be able to respond to calls within eight minutes and whose opportunities to undertake other activities during the standby period may accordingly be limited.
The AG gave his opinion that quality of time is of overriding importance in determining whether standby duty is “working time”, not the degree of required proximity to the place of work. Quality of time is judged by matters such as the ability of the employee to devote himself to his own interests and family.
The AG also considered the question of whether the definition of working time in the Working Time Directive 2003/88 can be construed as applying to the concept of working time which is used to determine matters of pay. The AG’s view is that no such automatic link exists. Indeed, it is worth bearing in mind that it is the case in UK law that the definition of working time for the purposes of breaks etc. under the Working Time Regs is distinct from the definition for minimum wage purposes. Chapter 5 of the National Minimum Wage Minimum Regs 2015 sets out very detailed provisions used to determine the number of hours of work for the purposes of entitlements to the National Minimum Wage.
The AG’s opinion will now be considered by the European Court of Justice in determining the case. The ECJ generally, but not always, follows an AG’s opinion.
The case of Agoreyo v London Borough of Lambeth  EWHC 2019 is a reminder that the view of the courts is that suspension is not a neutral act and can lead to an unfair constructive dismissal claim.
Ms Agoreyo was a teacher who was suspended because of force she used in three incidents involving two children with behavioural, emotional, and social difficulties (reasonable force is permitted in limited circumstances by the Education and Inspections Act 2006). The suspension letter was drafted as is often seen and stated that ‘the suspension is a neutral action and is not a disciplinary sanction. The purpose of the suspension is to allow the investigation to be conducted fairly…’
However, in this case the facts were highly relevant in that Ms Agoreyo had no specific training on how to deal with children with behavioural difficulties; she had spoken about the challenging behaviour of the children as soon as she started work and had email exchanges with her manager suggesting that the issues she faced were well understood.
So, in this case the court concluded that suspension was a knee-jerk reaction and did not agree that the school had no alternative but to suspend her to allow the investigation to be conducted fairly; in fact that suspension itself would have been sufficient to breach the implied term relating to trust and confidence. The fact that she resigned did not alter that picture and constituted a constructive dismissal.
In giving comment and advice in the newsletter, we do not assume legal responsibility for the accuracy of any particular statement. If you have specific views which you wish to discuss we would be pleased to assist you.
If you would like advice on how any of the above articles apply to your business, please contact one of the ELiAction team on 01494 817193 or info@ELiAction.com
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