March 2018 - MLP Law

EEA-workers in the UK labour market: Interim Update

In July 2017 the Migration Advisory Committee (“MAC”) was commissioned by the Home Secretary to report on the current and likely future patterns of EEA migration, and the impacts of that migration on the UK. The intention of such a report was to establish an evidence base to shape the new migration system that is expected to come into force at the end of the implementation period in 2021.

We have provided a summary of the recent interim update that addresses the responses of calls for evidence from employers and regions:

Why do businesses employ EEA workers?

  • Employers responded that they aren’t deliberately filling vacancies with EEA workers, it is normally that they are simply the best, or most qualified, for the job.
  • Specific examples of why EEA workers may be the best candidates included that they have the necessary skills and they are willing to do jobs in more difficult conditions.
  • Many employers think EEA workers are more motivated and flexible – examples include they are willing to work longer hours or night shifts.
  • Some employers in lower-skilled sectors feel they have an image problem for UK-born workers such as lower wages.
  • Low unemployment rates in the UK have led employers to look to EEA workers to fill vacancies.
  • Wages were not mentioned often as a deciding factor for employing EEA workers, and employers do not think of themselves as employing EEA workers because they are cheaper to employ.

What is the attitude of possible restrictions on the flow of EEA migrants?

  • Employers are concerned about the possible restrictions and what the future of migration might be.
  • The MAC highlighted that employer’s opinions are important but won’t be the only thing considered in their analysis.

What are employer’s views on the impacts of restrictions on hiring EEA migrants?

  • Employers explained they would devise strategies to mitigate the impact of possible restrictions.
  • An example would be training UK-born workers to fill skills shortages. However, this may have limited impact for jobs that require a few years training to be able to do.
  • It is not clear how effective these would be as we do not know what the restrictions will be.

Are employers producing contingency plans?

  • Many employers’ business models are based on EEA migrant labour being readily available, so these will be problematic if there are significant restrictions.
  • Businesses do not seem well-prepared to deal with a changing and tighter labour market where they may be competing much more intensely for labour.

What are the regional themes?

  • If EEA migration was 0, the population of Scotland, Wales and Northern Ireland would stop growing, and even fall in the next 20 years.
  • EEA migrants also contribute to slowing the ageing of the population, so if this was reduced then the dependency ratio would increase, (but it should also be noted that they themselves also contribute to this when they cease working).
  • The Scottish Government argue that areas with high population outflow should be combatted with higher immigration levels.
  • The conclusion is that what is best for an individual employer is not necessarily best for the welfare of the resident population.

To read more on the MAC’s comments on particular sectors, please click here.

We will keep you updated on any further developments.

If you are concerned about any issues raised in this blog, please contact our business immigration specialist Charlotte Ashton 0161 926 1592 or email charlottea@mlplaw.co.uk.

Don’t forget to follow us on Twitter @HRGuruUK for important employment, HR and business immigration updates.

 

Can you retract a job offer?

It has recently hit the headlines that Uber have retracted an offer of employment to Amazon’s previous Vice President, Assaf Ronen. This comes after it was discovered that Mr Ronen had in fact already left Amazon under unknown circumstances when he got offered the job at Uber, but had claimed he was still working for Amazon at the time.  This discrepancy allowed Uber to retract the offer without being liable for any breach themselves.

So how can you retract an offer of employment, and is it always straightforward? Unfortunately, no.

Conditional offers of employment

An offer of employment can be made conditional on certain promises being satisfied and/or proven. Common examples of this could include proof of someone’s academic results, receipt of two satisfactory references, or proof of someone’s right to work in the UK.

If the individual does not satisfy one of these conditions, you will then be able to withdraw the offer with no further consequences.

Unconditional offers of employment

If the offer of employment is unconditional (and has been accepted), then the above will obviously not apply, and a binding contract will have been created between yourselves and the individual, even if they have not yet joined. This complicates matters. Nevertheless, there are still some limited situations where you may have a legal basis to retract the offer, such as if the individual commits an act of gross misconduct that could justify summary dismissal without notice.

You could also consider serving the individual with their contractual notice period before their employment actually starts. As ending the agreement could constitute a breach of contract, you should compensate the individual with the notice pay that they would have received had they actually started working for you to head off such a claim.

What if you do not have a legal basis for retracting an offer?

If you retract an offer of employment without a legal basis to do so, and without providing any compensation, you are at risk of a breach of contract claim being brought against you in the Employment Tribunal (“ET”).

The risks of a claim being brought should be considered:

  • it is now free for someone to bring a claim in the ET, and single claims have risen by 90% as a result;
  • the compensation awarded will seek to put the individual in the position they would have been in, had the contract not been breached, which could be a substantial amount (especially if someone has already resigned, or is a senior employee); and
  • individuals who have not yet started for you can still bring a claim for discrimination, so you should not withdraw an offer based on a protected characteristic such as age, race or disability etc.

Next steps

  1. Ensure your offers of employment are conditional on anything you deem essential for the role.
  2. Seek legal advice if you are unsure of the grounds of retracting an offer of employment.
  3. Be aware of your obligations and the potential consequences if you breach the contract of employment.

If you would like to talk to a member of the team about anything in this document, please call 0161 926 9969 or email employment@mplaw.co.uk.

Don’t forget to follow us on Twitter for important employment law, HR and business immigration updates @HRGurukUK.

 

How do I bring a claim against my employer?

Bringing a claim against your employer can be daunting, so we have set out a simple 5 step guide to take you through the process.

  1. Eligibility

Before you consider bringing a claim, you must first establish that you are eligible to submit a claim against your employer. You’ll need to consider the following:

  • depending on the type of claim you want to bring, you may need to be an employee, or worker, rather than self-employed;
  • whether you have the required service to bring a claim. For example, if you want to bring an unfair dismissal claim you must have two years’ service, whereas for many other claims there is no minimum service requirement; and
  • whether you are still within the limitation period to bring the claim. For most claims, this is 3 months from the incident you are complaining about.
  1. Consider internal procedures

Before submitting a claim, you should first consider bringing an internal grievance against your employer in order to resolve your complaint. How to do this should be contained in your staff handbook.

If you decide to continue, and bring a claim anyway, any notes from the meetings can be used as evidence to support your case. Failure to pursue internal procedures may count against you in any subsequent claim and could affect the amount of compensation awarded to you.

  1. Contacting ACAS

It is compulsory that you contact ACAS before submitting any claim, as you will not be able to submit your claim unless you have a valid ACAS conciliation certificate. Your first contact with ACAS must be within the time limit for bringing your claim. Once you have contacted ACAS, this time limit effectively freezes, so you should not worry if you are close to the time limit when you start the process.

ACAS will ask if you want to participate in ‘early conciliation’, which is where an impartial representative from ACAS will try and settle the issue with your employer without the need for a Tribunal claim. Participation in early conciliation is not compulsory, however, it is highly recommended to try and settle a claim out of court if at all possible.

If ACAS do manage to negotiate a settlement with your employer, it is likely that you will be issued with a COT3 or settlement agreement where the employer will make a payment to you in return for you agreeing not to issue any claims against them. If the matter cannot be settled, ACAS will issue you with a conciliation certificate and you can then proceed with your claim. You will have a period of at least one month from the end of the conciliation period to submit your claim.

  1. Submitting a claim

Once the conciliation certificate has been issued by ACAS the ‘frozen’ time limit described above stops, and the clock begins to tick again. You should therefore make sure you are aware of any deadlines.

The next step would be to complete and submit the Employment Tribunal Claim Form, known as an ET1. Use of this form is compulsory, and as mentioned above, this cannot be submitted without an ACAS conciliation certificate.

  1. Considerations – costs and risks

There is no longer a fee to bring an Employment Tribunal claim, so you can now submit a claim for free. However, the process can be stressful and expensive (in regards to legal fees), so careful consideration should be given before pursuing any claim. If you are thinking about submitting a claim we would highly recommend you seek legal advice, so that the merits of your claim and likelihood of success can be assessed.

If you require assistance on any of the above, please get in contact with a member of the team by emailing employment@mlplaw.co.uk. Alternatively, please call 0161 926 9969.

Don’t forget to follow us on Twitter @HRGuruUK for important employment law updates and news.

 

What visa do I need for the UK?

 

Who needs a visa for the UK?

British citizens, Commonwealth citizens with a right of abode, and EU/EEA/Swiss citizens are all entitled to enter the UK without the need for a visa. All other citizens must obtain leave to enter the UK from an immigration officer. Depending on what country you are from, this will either require a visa obtained prior to travelling to the UK, or obtaining leave to enter as a visitor on arrival in the UK.

If you want to stay in the UK for longer than 6 months, you must obtain the appropriate visa for your circumstances prior to travelling to the UK.

What types of visa are there?

For a short trip to the UK, a visit visa is likely to be the most appropriate. This allows a stay of up to 6 months, with limits on what the individual can do whilst in the UK. There are four types of visit visa; standard visit visa, marriage/civil partnership visa, Permitted Paid Engagements visa, and transit visit visa.

For a longer stay in the UK, an individual will need to obtain a visa specific to their circumstances. This could be on the basis of investing in business in the UK, working, studying, or living with a family member who has the right to remain in the UK. For Commonwealth citizens, an ancestry visa might be an option if a grandparent was born in the UK.

Points Based System

Where an individual wishes to come to the UK to invest in a business, work, or study, it is likely that they will need to obtain a visa under the Points Based System. This system has five “Tiers” and an applicant needs to pick which is most appropriate for their circumstances.

The five tiers are:

  • Tier 1 – for investors, entrepreneurs, and exceptionally talented individuals
  • Tier 2 – for skilled workers
  • Tier 3 – was for low skilled workers but has never been opened
  • Tier 4 – for students
  • Tier 5 – for temporary workers, or young people coming to the UK on working holidays.

Each Tier, and the sub-categories of visa, has its own requirements for scoring points in order for an individual to apply for that visa. These tend to require evidence of why the person will be in the UK, evidence of funds to maintain themselves, and evidence of English language ability.

The length of time a person can stay in the UK differs according to which visa is obtained, and some visas can lead to indefinite leave to remain after 5 years (or, in rare circumstances, a shorter time).

How we can help

Each visa has its own requirements and conditions and it can be tricky to know the most appropriate for your circumstances. It can also be difficult to understand how to ensure you remain within the confines of the visa once in the UK.

Our business immigration experts are able to advise on what visa is most appropriate for your circumstances, and guide you through the notoriously tricky applications process. To arrange an initial meeting with one of our advisers please contact employment@mlplaw.co.uk. Alternatively, please call 0161 926 1592.

Don’t forget to also follow us on twitter for important employment and immigration law updates @HRGuruUK.

GDPR: Is consent enough to allow employers to process employee’s data?

As part of our series of short blogs about the General Data Protection Regulations and what impact they will have on employers, we look at whether obtaining consent from employee’s to hold and process their data is enough.

One reason why data protection issues are not always at the forefront of an employer’s mind is that, under the existing legislation, data processing is easily justified by obtaining the data subjects consent. As this is routinely included in contracts of employment, employers have simply been able to point to the contracts as the basis for processing personal data belonging to their employees.

However, this easy arrangement will no longer be possible under GDPR, since GDPR will set a higher standard for obtaining consent to process personal data. Consent will need to be freely given, specific and information clearly indicated by a statement of affirmative action. The new definition includes a requirement that consent is unambiguous.

Therefore, if consent is given through a written declaration it must be clearly distinguishable from other matters and easy to understand. Consent now becomes ongoing and requires more active management and not simply a clause within the employment contract.

This means that the standard “consent to process data” clause that features in most employment contracts is unlikely to be sufficient, as the general wording in the clause will be insufficient to comply with GDPR requirements. The imbalanced bargaining position between employees and employers means it would be unrealistic to suggest that the employee has the right to make an informed choice about whether to accept this particular clause in their employment contract. Could a new employee realistically tell their new employer that they want their contract to be changed?

For consent to be a lawful reason for data processing under the GDPR, the individual must therefore be given the power to make an informed choice and should be an “opt-in” basis rather than an “opt out” basis.

As a minimum, employers who wish to rely on employee consent to processing data will therefore need to consider creating a separate consent form to be signed by employees for each processing activity. It might be possible to prepare one main consent form for all of the anticipated activities, with further forms being created should new processing activities become necessary, for example, if you need to use an employee’s data to refer them to occupational health.

It is therefore more important than ever to obtain detailed records to demonstrate when and how consent has been provided. If employers seek to rely on consent they will need to give enough information to employees/individuals to enable them to understand what they are consenting to and the extent of the processing which they are consenting to. If you ask employees to sign a declaration of consent, this must be provided in an intelligible and easily accessible form, using clear plain language and should not contain unfair terms.

Any separate consent document will also need to outline a mechanism for employees to withdraw their consent, which they have the right to do at any time. It should be as easy to withdraw consent as it is to give, so you must avoid putting unnecessary hurdles in the way of an employee who wishes to retract permission to process their data.

According to the ICO guidance, it will be particularly difficult under GDPR for employers and public authorities to rely on consent as the basis for processing because there will always inevitably be an imbalance of power in the relationship between the employee and employer that controls their data. Such imbalance means that consent cannot be “freely given”.

Getting consent wrong will have serious consequences for an employer including substantial fines and damage to reputation. Because of the difficulties in relying on consent, in most cases it will likely be easier and more transparent to use an alternative legal justification for processing data. This makes sense because some processing of data will be inevitable, even if the employee does not consent to it. For example, an employee may not want to give their general consent to processing their data, but their data will still need to be processed in order to pay them their salary and benefits. Having considered and recorded the justifiable grounds that such data processing is required to comply with legal obligations and/or perform the employment contract, an employer will be in a much safer position than if it was simply relying on consent.

GDPR is going to have a huge impact on the data stored and processed by employers about their employees and job applications. If you would like to attend one of our free GDPR: What are your obligations as an employer? Seminars, please contact us on employment@mlplaw.co.uk or call us on 0161 926 9969 to sign up.

 

I have obtained a money judgment – how do I enforce it?

If you have obtained a money judgment against a debtor, you may think that is the end of the matter.  However, if the debtor does not pay, you will have to return to Court to enforce that judgment.  The most appropriate method of enforcement will often depend on the debtor’s circumstances.  In this blog, we consider the main types of enforcement options available.

Taking control of goods using writs and warrants of control

  • An enforcement officer will attend at the debtor’s premises to take control of, and sell, goods to raise funds to satisfy the judgment.
  • It is a popular method of enforcement and is often the quickest way to get paid. It is a simple and straightforward procedure that works on both individual and corporate debtors.
  • However, it will only be successful if the debtor has sufficient goods to be sold at auction to meet the judgment or, alternatively, enough money to pay the judgment.

Third party debt order

  • Sums owed to the debtor that are in the hands of a third party (e.g. a bank) are frozen and seized to pay the judgment. Can be very useful if you know the debtor has a bank account into which their salary is paid.
  • However, it is the least used method of enforcement as:
    • The evidence to support an application can often be difficult to find;
    • It cannot attach to future debts or foreign debts; and
    • Cannot be used against a joint bank account unless the judgment is a joint debt of all the account holders.

Charging orders

  • A charging order is a way of securing a judgment by imposing a charge over the debtor’s beneficial interest in land, securities or certain other assets. This usually prevents the debtor from selling the land without paying what is owed.
  • It is most effective when there is substantial equity in a property and the debtor is the sole owner. However, the process for obtaining a charging order can be slow and a charging order of itself does not realise funds to satisfy a judgment.  To do that, the debtor would have to sell the property or an order for sale would have to be sought.

Attachment of earnings

  • An attachment of earnings order provides for a proportion of a debtor’s earnings to be deducted by their employer until the judgment is paid. The amount of the deduction is set based on the debtor’s income and outgoings.
  • It is a popular method of enforcement as it results in an automatic deduction from the debtor’s pay and is relatively inexpensive to implement. However, it depends on the debtor remaining in paid employment (debtor cannot be self-employed) and it can take a long time to receive full payment (low payments often ordered).

Insolvency proceedings (personal bankruptcy / company liquidation)

  • If the amount owed by an individual is £5,000 or more, that person can be made bankrupt. If the amount owed by a company is £750 or more, that company can be wound up.
  • After a bankruptcy or winding-up order is made, the debtor’s assets will be collected in by a trustee in bankruptcy or liquidator and distributed among all creditors. It can be an expensive and lengthy process and will only result in payment if there are sufficient funds to make a distribution.

Contact us

  • If you would like any further information and/or require advice on which option may be the most appropriate for you, please do not hesitate to get in touch with our Dispute Resolution team on 0161 926 9969 or disputeresolution@mlplaw.co.uk

 

 

 

GDPR: Do employers need to update their data protection policies to make them GDPR compliant?

As part of our series of short blogs about the General Data Protection Regulations and what impact they will have on employers, we look at whether employers need to update their data protection policy.

We recommend that employers review the documents they have in place in relation to data protection. It is likely that any existing data protection policies has been drafted with employer’s obligations under the Data Protection Act 1998 in mind and therefore, will need updating or replaced.

We would recommend the following:

Privacy Notice – used to notify employees, workers and contractors about the personal data that you hold relating to them, how they can expect their personal data to be used and for what purposes.

Privacy Standard – to be used in place of a Data Protection Policy to set out the principles and legal conditions that you must satisfy when obtaining, handling, processing, transporting or storing personal data in the course of your operations and activities, including customer supplier and employee data.

Record of Processing Activities – to be used as a record of processing activities, including customer, supplier and employee data.

Data Protection Impact Assessment – to be used to evaluate the potential impact of high risk data processing activities, as required under Article 35 GDPR.

Our employment experts can assist with the review of your existing documents and replacing them with GDPR compliant documents.

GDPR is going to have a huge impact on the data stored and processed by employers about their employees and job applications. If you would like to attend one of our free GDPR: What are your obligations as an employer? Seminars, please contact us on employment@mlplaw.co.uk or call us on 0161 926 9969 to sign up.

 

Spitting feathers – what does the Jamie Carragher incident tell us about how employers deal with misconduct outside of work?

The details of the incident involving ex-Liverpool FC player Jamie Carragher do not need repeating. Anyone with even a passing interest in football is aware of the circumstances which led to his suspension by Sky TV.

However, the incident raises a number of interesting points for employers, particularly the question of whether acts of misconduct outside of work can be treated as a disciplinary matter.

It is first worth saying that it is unlikely that Jamie Carragher is an employee of Sky; he is much more likely to be self-employed, particularly given that he also appears as a pundit for a number of other broadcasters. However, if for argument’s sake we assume he is an employee, could Sky dismiss him?

The short answer is yes. The longer answer is that it is entirely possible for employers to discipline employees for misconduct which takes place outside of work. This usually occurs where either (1) the misconduct occurs during a time which is an extension of work, such as an office party; or (2) the misconduct brings the employee into disrepute.

In Jamie Carragher’s case, the argument would be that his actions caused reputational damage to Sky. Whether or not this damage would justify dismissal depends on a number of factors, including the nature and seriousness of the reputational damage and whether or not there are any legitimate mitigating factors.

A full investigation and disciplinary process would also be required before reaching any decision and employers should avoid the temptation to jump to conclusions or rush to a decision, even if the incident on the surface appears to be very serious.

The issue of reputational damage would also need to be properly considered, since many employers have been criticised by the courts for relying on this factor when dismissing employers, even though  objectively no reputational damage could be shown.

This is of course an unusual case, and ordinary employers are much more likely to face this issue in the context of employees receiving driving convictions or committing minor criminal offences outside of work.

For a smaller business, reputational damage may be less of factor, with the focus instead being on the suitability of the individual to continue in the role in light of their misconduct. For example, a driving offence may make an individual unsuitable for (or unable to carry out) a driving role.

The key point is that employers should always conduct a thorough investigation and follow a fair disciplinary process before reaching a decision. The decision reached must also be consistent with other previous decisions, or be mindful of setting a precedent for future incidents.

If you are an employer concerned about how to deal with a disciplinary matter in your workplace, please get in touch with our Employment Law experts on 0151 433 6042 or employment@mlplaw.co.uk.

Security for Costs – levelling the litigation playing field?

What is it?

An order for security for costs offers protection to a party (usually a defendant) from the risks of their opponent not being able to pay litigation costs if ordered to do so.  The order will usually require the opponent to pay the money into court or provide a bond against which the successful party can subsequently enforce an order for costs.

The ability to apply for security for costs should be considered as an important tactical weapon.  The threat of an application will focus the opponent’s mind on the merits of the case and may therefore assist in the early resolution of speculative or nuisance actions.  For this reason, a carefully made application can do much more than just secure costs.

Who can apply?

An application for security for costs can be made:

  • By a defendant against a claimant;
  • By a defendant against someone other than the claimant i.e. a third party;
  • By a claimant who is a defendant to a counterclaim; and
  • At the Courts own initiative, or by a party, against any party, who has failed to comply with a rule, practice direction or relevant pre-action protocol.

Security for costs is particularly important for defendants who (unlike claimants) have no choice about whether they are caught up in court proceedings.  Unless a defendant admits a claim, or the claim is discontinued, he is forced to defend it and incur the costs of doing so.

Are there any time periods?

An application for security for costs should be made promptly, preferably after the acknowledgment of service or defence is filed.  A delay in applying for security for costs can result in no security being granted or in the applicant being deprived of some or all of the costs they have already incurred.

What are the grounds?

Security for costs is only available for specific situations set out in statute and/or the court rules (CPR).  It is also subject to the Court’s discretion.  The grounds include the following:

  • A limited company or other body (whether incorporated inside or outside the UK), if there is reason to believe that it will be unable to pay the defendant’s costs if ordered to do so;
  • A claimant who has changed his address since the claim was commenced with a view to evading the consequences of litigation;
  • A claimant who has taken steps in relation to his assets that would make it difficult to enforce an order for costs against him (for example, dissipation of assets, transfer overseas or to places unknown to the defendant); and
  • A claimant (whether an individual, company or other corporation) resident out of the jurisdiction.

Is it just to make the order?

The Court will consider all the circumstances of the case when considering if it is just to make an order.  It will try not to fetter the claimant’s ability to make a claim but will also balance the defendant’s interests against those of the claimant.

The Court will always act in accordance with the overriding objective of the CPR which is to enable all cases to be dealt with justly and at a proportionate cost.  This involves a consideration of a number of factors including: the amount of money involved; importance of the case, complexity of the issues; and ensuring the case is dealt with fairly.

In considering whether it is just to make an order for security, the Court will also consider:

  • The ground on which the application is based;
  • The respondent’s ability to comply with any order made; and
  • The likelihood of the claim succeeding i.e. a meritorious claim should not be prevented from progressing due to a requirement to provide security for costs.

In considering an application against a claimant, the court will also take into account:

  • Whether the claim is bona fide or a sham;
  • Admissions by the defendant; and
  • If the claimant’s financial position was caused by the defendant’s actions.

Get in touch

If you have a reasonable prospect of successfully defending litigation and there are genuine concerns about your opponents’ financial position, you should consider applying for security for costs.  For further information, please contact our dispute resolution team on 0161 926 9969 or disputeresolution@mlplaw.co.uk