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The new UK immigration system – advice for employers and employees

Neil Gouldson

There has been a massive overhaul of the UK’s immigration rules as part of the UK’s exit from the EU and the end of free movement for EU citizens in the UK.

New Points Based System

From the start of 2021 EU and non-EU citizens are now treated the same in terms of immigration law (save for Irish citizens who can still freely enter, live and work in the UK). According to the Government website, “the new points based system aims to attract people who can contribute to the UK’s economy.”

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Termination agreements

adrian_fryer

It is commonplace to negotiate severance terms before an employee leaves employment due to redundancy. Discussions usually agree the sums to be paid and formal settlement agreements are signed to create a clean break between the parties.

The EAT has recently looked at a case where the parties had different ideas about what had been agreed, as well as what could be enforced.

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Health and safety

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Section 44 of the Employment Rights Act 1996 protects employees from employer detriment in certain health and safety cases: if they are absent from work because they reasonably believe that attendance would put them in serious and imminent danger or take appropriate steps to protect themselves if they reasonably believe they are in serious and imminent danger.

The right currently only extends to employees, rather than the wider definition of workers.

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Working time

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The Court of Justice of the European Union (CJEU) has considered two cases involving workers on standby and whether the whole of the standby period should be considered working time. The Working Time Directive says that working time is any period where the employee is working, at the employer’s disposal and carrying out their duties. A rest period is any period which is not working time.

The CJEU has previously found that standby time can be working time if the employee must be physically at the workplace (or another place determined by the employer) and able to provide services immediately if required. Another case, Ville de Nivelle v Matzak, said time spent by firefighters on standby at home was working time because they were required to be at home by the employer and to respond within 8 minutes. This put significant constraint on what they could do in terms of social and personal interests during that time.

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Equal pay

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Employers dread receiving a claim form citing claims which have no teeth and ‘fishing’ for more information from the employer to inform their claims. Often, these claims lack any merit at all. But in some cases, getting hard data to back up anecdotal evidence can be impossible for an employee, especially when it comes to closely guarded information about pay. The EAT has recently looked at a request for supporting data in relation to an equal pay claim. This case sits against the backdrop of extensive mass equal pay litigation in recent times, originally in the public sector, for women in predominantly female roles who claim they do work of equal value to predominantly male roles within a business. Most recently, this mass litigation has moved into the private sector and supermarkets like Asda, Co-op and Sainsbury’s.

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Holiday pay

adrian_fryer

In 2017, in the case of King v Sash Windows, the CJEU established that a worker can carry over unlimited annual leave which they have been prevented from taking because the employer refuses to pay for it.  The CJEU said domestic time limits for bringing such a claim – for example, our 3-month time limit to bring an employment claim for unpaid holiday under the Working Time Regulations 1998 or unlawful deduction from wages – should not prevent workers from exercising important EU rights. In Smith v Pimlico Plumbers, the EAT has looked at whether a worker can carry forward holiday that he has taken, but not been paid for, to future years.

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Flexible working

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The minister for Women and Equalities, Liz Truss, has asked employers to make flexible working a standard option for employees. She believes this step would boost both productivity and morale and improve employment prospects for women – who are twice as likely to work flexibly while they juggle childcare responsibilities – as well as those who don’t live close to big cities. The Government Equalities Office has published a report, ‘Encouraging employers to advertise jobs as flexible’, by the Behavioural Insights Team and the jobs website Indeed. The report said that job applications increase by 30 per cent when flexible working is offered.

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Performance monitoring

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Remote working has hidden employees from sight, causing some employers to worry about what their staff are doing during working hours. The Guardian has reported that one of the world’s biggest call centre companies is planning to install surveillance systems to monitor what their staff are doing, whether that’s working, eating or going to the toilet. Teleperformance, which employs 380,000 staff in 34 countries, works for big names in Britain such as the government, NHS Digital, Vodafone, Aviva and the Guardian itself. The article says that there is nothing to suggest that these companies know about this surveillance plan and Teleperformance has now indicated that surveillance will not be rolled out in the UK. Teleperformance has said that the surveillance plans evolved from employees saying that they felt isolated while working at home.

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