Checking a person's right to work in the UK

From 16 May 2014, the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014 will change an employer’s duties in relation to checking a person’s right to work in the UK. The key changes are:

• An employer must keep a record of the date on which it checked a person’s right to work in the UK.
• An employer will no longer be required to copy the front cover of a passport.
• An employer must keep a whole copy of a travel document (except a passport) in a format which cannot be subsequently altered.
• An employer will no longer be required to carry out a “follow up” check - at least once every 12 months - in relation to an employee who has a temporary right to work in the UK. However, an employer must still check the employee’s right to work in the UK when their temporary right has expired.
• Where an employer is reasonably satisfied that the employee has an outstanding application or appeal - in relation to extending their temporary right to work in the UK - the temporary right will be extended by:
• 28 days or
• if earlier, the date on which the Secretary of State informs the employer in writing that the employee no longer has the right to work in the UK.
• An employer must obtain and keep details of the term and vocation dates of a course – if the employee or prospective employee is a student - who has permission to work for a limited number of hours per week during term time.
• The maximum penalty for employing an illegal worker will rise from £10,000 to £20,000 per worker: Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) (Amendment) Order 2014.
• An employer who acquires new employees due to a TUPE transfer - will have a grace period of 60 days from the date of the transfer - to check their right to work in the UK: Code of Practice on preventing illegal working (May 2014). The grace period was 28 days before 16 May 2014.

The Home Office has updated its Codes of Practice and guides to reflect the changes to an employer’s duties in relation to checking a person’s right to work in the UK.

Absence Management – can you afford to ignore it?

The Statutory Sick Pay (SSP) Percentage Threshold (Revocations, Transitional and Saving Provisions) (Great Britain and Northern Ireland) Order 2014 confirms that employers can no longer recover SSP for any sickness occurring after the 2013/2014 tax year.

Also note the SSP (Maintenance of Records) (Revocation) Regulations 2014 will come into force on 6 April 2014.

Surrogacy: ECJ clarifies maternity laws

The ECJ has ruled that EU maternity laws do not apply to a woman who had a baby through a surrogate. And an employer’s refusal to grant maternity leave/pay to the woman was not unlawful disability or sex discrimination.

Source: CD v ST (C-167/12) & Z v A Government Department and the Board of Management of a Community School (C-363/12).

Rehabilitation of Offenders

From 10 March 2014, the rehabilitation periods for criminal convictions will be reduced: Chapter 8 and Sch. 25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

For example, a job applicant must disclosure their criminal record for 7 years from the date of conviction - if they have been sentenced to prison for up to 6 months. However, from 10 March 2014, the job applicant would only have to disclosure their criminal record for 2 years starting from the end of the sentence. The new rehabilitation periods will apply to a conviction/caution before, on, or after 10 March 2014: s. 141(1) of the Act.

A table containing the current and new rehabilitation periods can be found at the Unlock website.

Source: The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 9, Saving Provision and Specification of Commencement Date) Order 2014.

A job applicant must always disclose a spent conviction/caution if they are applying for a certain job (e.g. a nurse). But they should not disclose a protected conviction/caution.

Tribunal awards increase from 6 April 2014

From 6 April 2014, tribunal awards will be increased by the Employment Rights (Increase of Limits) Order 2014.

The main increases are:

• The maximum amount of a week’s pay will increase from £450 to £464.
• The maximum compensatory award for unfair dismissal will increase from £74,200 to £76,574.

• The daily limit on a guarantee payment will increase from £24.20 to £25.00.

From 6 April 2014, a tribunal may impose a penalty of between £100 and £5,000 on an employer - if the employer has breached the claimant's rights - and the breach has one or more "aggravating features".

Should commission be included in a salesman’s holiday pay?

British Gas employed Mr Lock as a salesman. Mr Lock’s monthly pay consisted of his basic pay and a variable sales commission (SC). Mr Lock only received his basic pay for a period during which he had taken holidays - since he would not have earned a SC during the period.

Mr Lock argued that his holiday pay should include an average SC. The Advocate General (AG) agreed. The AG said that the SC was intrinsically linked to the performance of the salesman’s job duties [see paras. 31 – 34]. The AG added that Mr Lock’s average SC over the last 12 months appeared to be an appropriate amount that should be included in his holiday pay [see para. 48].

The decision of the ECJ is awaited. The ECJ usually agrees with the opinion of the AG.

Lock v British Gas (C-539/12)

Surrogacy

In CD v ST (C-167/12), the Advocate General (AG) ruled that EU maternity laws applied to a woman who had a baby through a surrogate - regardless of whether or not the woman breastfeed the baby. Therefore, the woman is entitled to at least two weeks’ maternity leave and the remainder of the maternity leave not taken by the surrogate.

However, in Z v A Government Department and the Board of Management of a Community School (C-363/12), the AG disagreed [paras. 48 – 52] and ruled that the woman is not entitled to maternity leave. The AG added that the employer’s refusal to grant maternity leave to the woman was not unlawful disability discrimination – because her inability to carry a pregnancy was not a disability that prevented her from having a professional life.

In both cases, the Advocate Generals ruled that the employers’ refusal to grant maternity leave to the women was not unlawful sex discrimination.

The decision of the ECJ is awaited.

In February 2013, the Government proposed to extend statutory adoption leave and pay: and shared parental leave to a parent who had a baby through a surrogate – if the parent satisfies the criteria relating to parental orders under the Human Embryology and Fertilisation Act 2008.