Establishment re-established

avatar Posted on May 15th, 2015 by Neil Johnston

With all the focus on the Woolies case it is easy to forget the Northern Irish Bonmarche case that first made the referral to the European Court of Justice (ECJ) on the meaning of “establishment” under the EU Collective Redundancies Directive. Earlier this week the ECJ answered the three questions posed giving an even clearer steer that an individual store can be a discrete establishment.

The Northern Irish Industrial Tribunal asked the ECJ:

1.  Does establishment mean the local work unit to which the employees were assigned for the purposes of carrying out their work i.e. the individual site?

Each store was treated as an ‘individual cost centre’, whose budget was decided on by the head office in Great Britain. It was also the head office that decided on the stock and the sales promotion priorities of each store, and that provided or organised the provision of the articles offered for sale. Nevertheless, each branch manager could influence the amounts and types of goods provided. The store managers were responsible for achieving the objectives of their respective stores. Within the limits of the budgetary provision allocated to staffing hours, which was decided on centrally, the branch manager had discretion as to the number of full-time and part-time staff who would be employed. On this basis the ECJ considered that each store is capable of being an establishment but ultimately this was a matter for the Northern Irish Industrial Tribunal to establish.

2.  If not, can an establishment be constituted by a sub unit of an undertaking which consists of or includes more than one local unit i.e. can an establishment be a group of individual sites, for example all the stores in the Northern Ireland region?

The ECJ answered this question in the answer to the first question.

3.  Does the collective consultation threshold of at least 20 employees refer to the number of dismissals across all of the employer’s establishments, or is it the number of dismissals per establishment?

The ECJ held the definition in Article 1(1)(a)(i) and (a)(ii) of the EU Collective Redundancies Directive requires that the dismissals effected in each establishment should be considered separately.

While in this case and the Woolies case the ECJ has left it for the local Court / Tribunal to determine whether individual stores are separate establishments for the purposes of collective redundancy consultation, the judgment clearly suggests that a store-based approach to calculating thresholds for collective redundancy consultation is permissible. These decisions give helpful clarification to both lawyers and HR advisers alike. However, the question of whether a store or site is a separate establishment is fact sensitive and advice should be sought before embarking on a redundancy exercise across multiple sites.

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End of the road for ex-Woolies staff

avatar Posted on April 30th, 2015 by Nicholas Thorpe

Today marked the end of the road for the ex-Woolies and ex-Ethel Austin staff who were seeking to argue that they were entitled to protective awards under UK collective redundancy legislation, notwithstanding that they were employed in stores at which fewer than 20 employees worked.

As many of you will know (particularly if you have been following this case), the consultation obligation for collective redundancy purposes arises only where it is proposed that 20 or more employees may be dismissed as redundant at “one establishment” within a 90 day period.

But what is meant by “one establishment”?

Following a long line of case law, Liverpool and Central London Employment Tribunals had concluded that individual stores were discrete “establishments”, meaning that there was no duty on the administrators to consult on redundancies at stores employing fewer than 20 employees when the two retail groups went into administration and the stores were closed. Protective awards were therefore only made to staff employed at larger sites. But this decision (and almost 20 years of case law on collective redundancy) was turned on its head on appeal.

The Employment Appeal Tribunal (EAT) held (to many people’s surprise) that the words “at one establishment” under UK legislation failed properly to implement the EU Collective Redundancy Directive and that those words should be deleted to achieve a compatible interpretation.

The effect of the deletion of those words meant that the redundancies across the whole of retail business operated by Woolworths and Ethel Austin (including all the stores) should have been aggregated and that the staff employed at the smaller stores were entitled to protective awards. This not only left the tax payer to pick up a significant bill (running into the several millions of pounds), but it also left multi-site employers with significant uncertainty as to how to approach future redundancy exercises.

Following a reference by the Court of Appeal, the European Court of Justice (ECJ) has today confirmed that the EAT was wrong and that UK legislation was not incompatible with the Directive. The Directive does not require all “establishments” to be aggregated for the purposes of the 20-employee threshold. Rather, the Directive requires account be taken of redundancies effected in each establishment to be considered separately.

As for the meaning of “establishment”, the ECJ made reference to its earlier judgment in a Danish case in which it had confirmed that the “establishment” is the unit to which the employees who are made redundant are assigned and that unit may not necessarily be endowed with a management that can independently effect collective redundancies.

Further, in its judgment today, the ECJ reminds us that an “establishment” may consist of a distinct entity within an undertaking “having a certain degree of permanence and stability, which is assigned to perform one or more tasks and which has a workforce, technical means and a certain organisational structure allowing for the accomplishment of those tasks”.

So what does this mean for retailers?

The ECJ observed that since the dismissals were effected within two large retail groups carrying out their activities from stores situated in different locations, the Employment Tribunals took the view that the stores to which the employees affected by those dismissals were assigned were separate “establishments”.

While the ECJ has left it for the Court of Appeal to determine whether this was a correct interpretation, the judgment clearly suggests that a store-based approach was a permissible approach for the Tribunal to take. But these things are facts dependent, and while it would appear that we have gone full circle and have returned to a store-based approach, care should always be taken in how you approach the question of “establishment”.

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Landmark whistleblowing decision – what constitutes “public interest”

avatar Posted on April 27th, 2015 by Joanne White

The focus of the last few weeks has been on the forthcoming General Election and the various political parties’ manifestos. But, while the political parties vie for our votes, it is business as usual in the Courts.

This month has seen the first reported appellate decision on the new “public interest” test under UK whistleblowing legislation – see further comment below. We are also expecting to receive the Woolies’ decision on the meaning of ‘establishment’ in collective redundancy situations from the European Court of Justice at the end of this month.

Whistleblowing and the “public interest” test

The Employment Appeal Tribunal (EAT) has handed down its judgement in the case of Chesterton Global Ltd (trading as Chestertons) & Others v Mr M Nurmohamed. This case provides the first decision by a Tribunal on what constitutes “in the public interest”.

In order to be protected against detriments or dismissal under the whistleblowing legislation, a worker must have made a “qualified” disclosure. This means a disclosure of information which, in the reasonable belief of the worker, is made in the public interest and shows that one of the six specified types of wrongdoing has taken place, is taking place or is likely to take place.

When the whistleblowing legislation was introduced in 1998, it did not include a test for “in the public interest” – this test wasn’t introduced into the legislation until 2013, to counter-act the effect of a “qualified” disclosure being able to cover a breach of the worker’s own contract of employment, even when there were no wider public interest implications.

In this case, Mr Nurmohamed was employed as a senior manager at Chestertons. He made numerous “qualified” disclosures to his Area Director following changes to the Company’s commission structure. Mr Nurmohamed believed that the change in structure had a negative impact on 100 managers’ (including his) commission income, which subsequently made the Company more profitable.

Mr Nurmohamed was dismissed and brought various claims, including whistleblowing. The Employment Tribunal (ET) found that he had been automatically unfairly dismissed and that he had been subjected to detriments as a result of his “qualified” disclosures. The ET held that the disclosure did not have to be in the interest of the public as a whole; if this was the case, Mr Nurmohamed’s case would undoubtedly have failed.

The ET concluded that it was Mr Nurmohamed’s reasonable belief that his disclosures were in the interests of the 100 managers’ (including himself) who were affected and that this was a reasonable section of the public to satisfy the public interest test.

Chestertons appealed on the grounds that:

(a)    disclosures made in the interests of 100 managers was not in the public interest; and;

(b)    it was for the ET to determine objectively whether or not the disclosures were in the public interest and it failed to do so.

The EAT dismissed the appeal and upheld the ET’s decision. It agreed with the ET that it was not necessary to show that a disclosure was of interest to the public as a whole as it was inevitable that only a section of the public would likely be affected by any disclosure, in any event.

Further, the EAT found that public interest is a “matter of belief, not fact” which means that a disclosure does not actually need to be in the public interest at all, as long as the whistleblower believed that it was. It was satisfied in this case that Mr Nurmohamed believed that his disclosures were in the public interest.

What does this mean in practice?

This is an important decision on whistleblower protection. The intention of the public interest test was to prevent individuals from bringing claims based on breaches of their own contracts of employment. However, if the test is too onerous, it could easily prevent workers from issuing claims. What this decision demonstrates is that the EAT has kept the bar low in terms of the hurdles workers have to get over in order to be protected by the whistleblower legislation. It is widely considered by practitioners to be a sensible and pragmatic decision.

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The UKIP Manifesto 2015

avatar Posted on April 16th, 2015 by David Carmichael

UKIP leader Nigel Farage introduced his party’s “gold standard” manifesto “Believe in Britain” by claiming it was the only one that had been “fully costed”. UKIP claim that politics has been dominated by giant corporate business interests and that they wish to make working people better off. Judge for yourself as we summarise UKIP’s policies on employment below.

The EU

  • Hold an in/out referendum on EU membership as soon as possible.
  • Assuming a yes vote activate Article 50 of the Lisbon Treaty to trigger a mechanism for a negotiated British exit over a 2 year period.

Jobs and pay

  • End EU relocation grants of €1,000 paid to assist EU nationals to find work in other member states.
  • Permit British businesses to prefer British workers ahead of non-British workers.
  • Increase the number of National Minimum Wage inspectors in both England and Wales.
  • Amend the Working Time Regulations 1998.
  • Limit the number of highly paid council employees and abolish non-essential council jobs.
  • A guarantee of a job offer with the police, Prison Service or border force for those leaving the armed services after serving for a for a minimum of 12 years.
  • Older workers will be able to select when they retire, from the age of 65 and still draw a state pension, albeit discounted to take account of retirement before the state retirement age.
  • Ensure homecare workers are paid for their travelling time between home visits.
  • Introduce a new Licence to Manage certificate for NHS managers similar to the General Medical Council and Nursing and Midwifery Council vocational registrations, to ensure incompetent, negligent or bullying NHS managers are held to account.

Zero hours contracts

  • Introduce a legally binding Code of Conduct for zero hours contracts.
  • Employers of 50 or more people must grant part or full time contracts of employment to employees with a year or more of zero hours service, if so requested.
  • No exclusivity clauses in a zero hours contract.
  • Workers must be given at least 12 hours’ notice of work and once notice has been given whether work is available or not they must be paid for that work.
  • A complete prohibition on the use of zero hours contracts for home care workers.

Equality and multiculturalism

  • End the use of multi-lingual formatting of official forms.
  • Uphold freedom of speech within the law and challenge the “culture of offence”.
  • Protect freedom of religion unless it is intolerant of the human rights of others.
  • Introduce mandatory reporting of suspected female genital mutilation by teachers, police, social services and healthcare professionals.
  • Impose a requirement that faith based tribunals must inform those attending before them that they cannot be forced to attend before them and that the tribunal’s rulings may be contrary to British law.

Family friendly

  • Honour the current Government’s commitment to provide a new tax-free childcare scheme, worth up to £2,000 for children under twelve.
  • Amend the voucher scheme in order to address the shortage of places and cut the cost to both parents and the state, by de-regulating childcare provision.
  • Place a statutory duty on all primary schools to offer before and after-school care from 8am to 6pm during term time, with the option to extend this to all-day provision throughout the school holidays.

Apprenticeship

  • Permit young people to start an apprenticeship in place of 4 non-core GCSE subjects.

Immigration

  • Introduce a five-year moratorium on immigration for unskilled workers (including those from the EU).
  • Assuming an EU exit, introduce an Australian-style points based system to manage the number and skills of people coming into the country, treating all citizens of the world on a fair and equal basis, establish a Migration Control Commission to oversee operation of the points based system.
  • The Commission to operate under a strict mandate to significantly reduce the numbers of people migrating to the UK and determine Britain’s economic and social needs annually and then recommend how many immigrants, with what skills the UK requires.
  • Five new visa types to be introduced to include those for students, visitors, asylum seekers, family reunion and work visas – workers under the latter visa will be required to have medical insurance to cover both themselves and any dependents for five years’ duration.
  • EU workers in the UK when it leaves the EU to be permitted to remain and work in the UK.
  • Increase the number of immigration compliance and enforcement teams.

Tax

  • Increase the tax-free personal allowance to at least £13,000.
  • Raise the 40p Income Tax threshold to £55,000.
  • Introduce a new intermediate tax rate of 30% on earnings between £43,500 and £55,000.
  • After EU exit zero rate VAT for a variety of goods and services including repairs to listed buildings and sanitary products.
  • Those in the armed services on operational duty will not pay income tax whilst serving overseas.
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Opportunity for everyone – the Lib Dems’ manifesto

avatar Posted on April 15th, 2015 by Neil Johnston

Nick Clegg has promised to “add a heart to a Conservative Government and a brain to a Labour one“. So what does that mean for employers and those of us dealing with HR issues? A summary of the Lib Dem’s proposals in this regard is set out below.

Europe and immigration

  • Work to reform the EU but remain within it
  • Hold an In/Out referendum when there is next any Treaty change involving a material transfer of sovereignty from the UK to the EU
  • Continue to allow high skilled immigration
  • Re-instate post study work visas for students studying science, technology, engineering and maths

Family friendly

  • Extend free childcare to all two year olds, and to the children of working families from the end of paid parental leave
  • Expand Shared Parental Leave with a ‘use it or lose it’ month for fathers, and introduce a right to paid leave for carers
  • Commit to a goal of 20 hours’ free childcare a week for all parents with children aged from two to four-years, and all working parents from the end of paid parental leave (nine months) to two years
  • Start by providing 15 hours a week of free childcare to the parents of all two-year olds. Will then prioritise 15 hours free childcare for all working parents with children aged between nine months and two years
  • Provide up to £2,000 of childcare support for each child and include childcare support in Universal Credit, refunding 85% of childcare costs so work pays for low earners

Flexibility at work and fair pay

  • Ensure employers cannot avoid giving their staff rights or paying the minimum wage by wrongly classifying them as workers or self-employed
  • Continue to stamp out abuse of zero hours contracts and create a formal right to request a fixed contract
  • Consult on introducing a right for those on zero hours contracts to make regular patterns of work contractual after a period of time
  • Simplify and streamline back-to-work support for people with disabilities, mental or physical health problems
  • Raise awareness of, and seek to expand, Access to Work, which supports people with disabilities in work
  • Swift implementation of the new rules requiring companies with more than 250 employees to publish details of the different pay levels of men and women in their organisation
  • By 2020 extend transparency requirements to include publishing the number of people paid less than the Living Wage and the ratio between top and median pay
  • Consult on requirements for companies to conduct and publish a full equality pay review, and to consult staff on executive pay
  • Ask the Low Pay Commission to look at ways of raising the National Minimum Wage
  • Improve enforcement action and clamp down on abuses by employers seeking to avoid paying the minimum wage by reviewing practices such as unpaid internships
  • Establish an independent review to consult on how to set a fair Living Wage across all sectors
  • Monitor and tackle the Black, Asian and Minority Ethnic pay gap

Equality

  • Set an ambitious goal to see a million more women in work by 2020 thanks to more jobs, better childcare, and better back-to work support
  • Continue the drive for diversity in business leadership, maintaining momentum towards at least 30% of board members being women and encouraging gender diversity among senior managers, too
  • Identify ways to encourage more Black, Asian and Minority Ethnic applicants to apply for finance and set up small business
  • Encourage businesses to ensure at least one place on their board is filled by a Black, Asian and Minority Ethnic candidate
  • Outlaw caste discrimination
  • Help greater numbers of disabled people work by encouraging employers to shortlist any qualified disabled candidate and providing advice about workplace adaptation
  • Formally recognise British Sign Language as an official language of the United Kingdom
  • Maintain the Public Sector Equality Duty and encourage external providers to the public sector to follow best practice in terms of diversity
  • Prohibit discrimination on the grounds of religion in the provision of public services
  • Move to ‘name blank’ recruitment wherever possible in the public sector
  • Replicate the civil service accelerated programme for underrepresented groups across the public sector
  • Require diversity in Public Appointments. Introduce a presumption that every shortlist should include a Black, Asian and Minority Ethnic candidate. Establish an independent committee that will monitor the drive for greater diversity in public appointments and verify the independence of the appointment process to public bodies, boards and institutions.

Employee ownership and workplace representation

  • Encourage employers to promote employee participation and employee ownership, aiming to increase further the proportion of GDP in employee-owned businesses
  • Will change company law to permit a German-style two-tier board structure to include employees
  • Strengthen worker participation in decision-making, including staff representation on remuneration committees, and the right for employees who collectively own 5% of a company to be represented on the board
  • Spread mutual structures and employee participation through the public sector

Trade unions and strike action

  • Protect the rights of trade union members to have their subscriptions, including political levies, deducted from their salary, and strengthen members’ political freedoms by letting them choose which political party they wish to support through such automatic payments
  • Encourage wider participation in trade union ballots through electronic voting
  • Introduce mandatory arbitration for strikes likely to cause widespread public disruption, enabling us to defend workers’ rights to strike while ensuring continued service in essential public services

Tax and Pensions

  • Raise the personal allowance to at least £12,500
  • Consider raising the national insurance threshold to the income tax threshold
  • Legislate to make the public sector triple lock on pensions permanent
  • Improve workplace pensions and continue to auto-enrol workers, completing the rollout of this scheme in full and on time
  • Crack down on charges and encourage people to save more into their pension pot through this scheme
  • Establish a review to consider the case for, and practical implications of, introducing a single rate of tax relief for pensions, which would be designed to be simpler and fairer and which would be set more generously than the current 20% basic rate relief

Apprenticeships and job creation

  • Increase the number of apprenticeships and improve their quality, extending the Apprenticeship Grant for Employers for the remainder of the next Parliament, delivering 200,000 grants to employers and expanding the number of degree-equivalent Higher Apprenticeships
  • Aim to double the number of businesses which hire apprentices, including by extending them to new sectors of our economy, like creative and digital industries
  • Promote more green and technology start up jobs
  • Promote growth in the creative industries
  • Make sure it pays to work by rolling out Universal Credit, and invest in back-to-work and healthcare support for those who need it

Employment Tribunal fees

  • Review the Employment Tribunal fees system to ensure they are not a barrier to justice

Carers

  • Introduce an annual Carer’s Bonus of £250 for carers looking after someone for 35 hours or more each week
  • Work to raise the amount you can earn before losing Carer’s Allowance from £110 to £150 a week
  • Consult on introducing five days’ paid additional ‘care leave’ a year for carers who qualify for the Carer’s Allowance
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More Manifesto pledges – what changes are the Conservative and Green Parties proposing to the workplace? (Part 2)

avatar Posted on April 14th, 2015 by Nicholas Thorpe

First it was the Green Party, now the Conservative Party has made its manifesto available to us all to peruse on-line. The Conservative Party is promising “strong leadership”, “a clear economic plan”, and “a brighter, more secure future”. But what does this mean for employers?

A summary of the Conservative Party’s main workplace proposals is set out below.

The Conservative Party Manifesto 2015

Pay

  • Increase the Minimum Wage to £8 by 2020.
  • Support the Living Wage and encourage businesses to pay it whenever they can afford it.

Job creation

  • Support 3 million new apprenticeships.
  • Help businesses to create 2 million new jobs.

Unions and industrial action

  • Increase the turnout threshold on ballots for strike action.
  • Introduce tougher thresholds for industrial action in essential public services.
  • Ban restrictions on employees hiring agency staff to provide cover during strikes.
  • Prevent strikes being called on the basis of ballots conducted years before.
  • Tackle the intimidation of non-striking workers.
  • Legislate to ensure trade unions use a transparent opt-in process for union subscriptions.
  • Tighten the rules around paid ‘facility time’ for union representatives.
  • Reform the role of the Certification Officer.

Equality

  • Halve the disability employment gap.
  • Require companies with more than 250 employees to publish their gender pay gap.
  • Increase the proportion of public appointments going to women.
  • Scrap the Human Rights Act and introduce a British Bill of Rights.
  • Curtail the role of the European Court of Human Rights.

Family friendly

  • Bring in tax-free childcare to support parents back into work.
  • Give working parents of 3 and 4-year olds 30 hours of free childcare a week.

Volunteering Leave

  • Introduce a new workplace entitlement to volunteering leave for three days a year, on full pay.

Immigration

  • Maintain cap on skilled economic migration from outside the EU.
  • Introduce tougher labour market regulation to tackle illegal working and exploitation.
  • Legislate that every public sector worker operating in a customer-facing role must speak fluent English.

Tax

  • Increase the tax-free personal allowance to £12,400.
  • Ensure a tax-free wage for those working 30 hours a week on the Minimum Wage.
  • Raise the 40p Income Tax threshold to £50,000.
  • No increases in VAT, National Insurance or Income Tax.
  • Abolish National Insurance contributions for apprentices under 25.
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More Manifesto pledges – what changes are the Conservative and Green Parties proposing to the workplace? (Part 1)

avatar Posted on April 14th, 2015 by Nicholas Thorpe

Today sees the launch of both the Conservative Party’s and the Green Party’s manifestos for the May 2015 General Election. It has to be said that some of the more headline-grabbing pledges, such as the proposed revival of the Conservatives’ right-to-buy scheme, will not have a direct impact on the workplace, but buried within each manifesto are some interesting workplace proposals.

First off the block was the Green Party. The main proposals from the Green Party’s manifesto are summarised below.

Green Party – “For the Common Good”

Pay

  • End the exploitation of young people in low-wage jobs.
  • Make the minimum wage a living wage for all, with a target of £10 per hour by 2020.
  • Make the highest wage in any organisation no more than ten times the lowest wage.

Working hours

  • Phase in a 35-hour week.

Zero hour contracts

  • End exploitative zero-hour contracts

Unions and employee representation

  • Revive the role of democratic trade unions.
  • Give workers a greater say in the running of their companies, including employee-elected directors in medium and larger companies.
  • End blacklisting and consider the creation of a new criminal offence.
  • Grant employees the legal right in certain circumstances to buy out their companies (funded by the Green Investment Bank) and turn them into workers’ cooperatives.

Equality

  • Make equal pay for men and women a reality and enforce penalties against employers who continue to implement unequal pay.
  • Require 40% of all members of public company and public sector boards to be women.
  • Ensure the laws to prevent discrimination against women on the grounds of pregnancy and maternity are properly enforced.
  • Reinstate the funding for the Equality and Human Rights Commission.
  • Work towards ending stigma against people with mental health problems, including discrimination in employment.
  • End the system whereby an external occupational health contractor assesses whether people are fit for work and return to the system of relying on the judgment of GPs and other health professionals.
  • Raise the profile of the Access to Work scheme among smaller firms and disabled people, with far greater transparency over how the scheme is administered.
  • Progressively introduce anonymised CVs so that Black and Minority Ethnic and female candidates are not excluded before the interview stage because of their identity.
  • Ensure the public sector does more to employ Black and Minority Ethnic employees.
  • Ensure greater diversity at all levels of government and public bodies.
  • Legislate to remedy inequality in pension inheritance for same-sex marriage partners and same-sex civil partners.

Skills and training

  • Ensure that no unpaid full-time internship lasts more than four weeks.
  • Support the right of young people all over Europe to go to other parts of the EU to work and broaden their experience.
  • Provide an apprenticeship to all qualified young people aged 16 – 25 who do not have one and want one.

Family friendly

  • Provide a comprehensive nationwide system of good-quality pre-school early education and childcare, free at the point of delivery.

Employment Tribunals

  • Reduce Employment Tribunal fees.

Tax

  • Reduce employers’ National Insurance contributions for small businesses to 8%.
  • Abolish the employees’ National Insurance upper threshold.
  • Raise the top rate of income tax to 60%.
  • Introduce a wealth tax of 2% a year on the top 1%.
  • Simplify PAYE.
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Labour party manifesto – speed read

avatar Posted on April 13th, 2015 by Richard Kenyon

According to the foreword, “The fundamental truth that runs through this manifesto is that Britain will only succeed when working people succeed.” What follows is a summary of the issues from the Labour Party Manifesto 2015 which relate to employment:

Pay

  • We will make sure employees have a voice when executive pay is set by requiring employee representation on remuneration committees.
  • Raise the National Minimum Wage to more than £8 an hour by October 2019.
  • Give local authorities a role in strengthening enforcement against those paying less than the National Minimum Wage.
  • Support employers to pay more than the National Minimum Wage by using government procurement to promote the Living Wage, alongside wider social impact considerations.
  • Make Work Pay contracts will give tax rebates to businesses who sign up to paying the Living Wage in the first year of a Labour Government.
  • Publicly listed companies will be required to report on whether or not they pay the Living Wage.

Zero hours contracts

  • Ban exploitative zero-hours contracts.
  • Those who work regular hours for more than 12 weeks will have a right to a regular contract.
  • Abolish the loophole that allows firms to undercut permanent staff by using agency workers on lower pay.

Employment Tribunals

  • Abolish the employment tribunal fee system as part of wider reforms to make sure that affordability is not a barrier to workers having proper access to justice, employers get a quicker resolution, and the costs to the tax payer do not rise.

Skills and training

  • Tackle the growth of unpaid internships.
  • Introduce a Compulsory Jobs Guarantee, paid for by a bank bonus tax. It will provide a paid starter job for every young person unemployed for over a year, a job which they will have to take or lose benefits.
  • Guarantee every school leaver that gets the grades an apprenticeship.
  • Create thousands more apprenticeships in the public sector, including the civil service.
  • Every firm getting a major government contract, and every large employer hiring skilled workers from outside the EU, will be required to offer apprenticeships.
  • Re-focus existing spending away from low-level apprenticeships for older people, and towards a system where apprenticeships are focused on new job entrants, lasting at least two years, and providing level three qualifications or above.
  • Make sure that apprenticeships can lead to higher level qualifications by creating new Technical Degrees and supporting part-time study. They will be co-funded, co-designed and co-delivered by employers and they will be the priority for expansion within our university system.
  • Replace out of work benefits for 18 to 21-year-olds with a new Youth Allowance dependent on recipients being in training and targeted at those who need it most.

Employee ownership

  • Consider how to support employee buy-outs when businesses are being sold.
  • Safeguard the public interest in the Royal Mail, supporting the creation of a staff-led trust for the employee share, and keeping the remaining 30 per cent in public ownership.

Tax

  • Reverse the 50p tax cut.
  • Not increase the basic or higher rates of Income Tax and National Insurance.
  • Abolish non dom status.
  • Restrict tax relief on pension contributions for the highest earners.
  • Bear down on disguised employment.

Family friendly

  • Extend free childcare from 15 to 25 hours for working parents of three and four-year-olds, and ensure all primary schools guarantee access to wraparound childcare from 8am to 6pm.
  • Double paternity leave from two to four weeks.
  • Increase paternity pay by more than £100 a week.

Public sector jobs

  • Recruit an additional 1,000 borders staff.
  • Recruit 5,000 new home-care workers – a new arm of the NHS – to help care for those with the greatest needs at home.
  • Recruit 8,000 more GPs, 20,000 more nurses and 3,000 more midwives.

Equality

  • Will go further in reducing discrimination against women, requiring large companies to publish their gender pay gap and strengthening the law against maternity discrimination.
  • Where there is evidence more progress is needed, we will enforce the relevant provisions within the Equality Act.
  • Establish a comprehensive race equality strategy to break down the barriers still faced by black and minority ethnic communities.
  • Build on history of championing LGBT rights, tackling homophobia with tougher laws at home and greater engagement abroad.
  • Protect the Human Rights Act.
  • Introduce legislation to make discrimination against members of our Armed Forces illegal.
  • Appoint a Global Envoy for Religious Freedom, and establish a multi-faith advisory council on religious freedom within the Foreign and Commonwealth Office.
  • Appoint an International LGBT Rights Envoy to promote respect for the human rights of LGBT people, and work towards the decriminalisation of homosexuality worldwide.

General

  • Push up standards and boost productivity by implementing the commitments in Labour’s Workplace and Business manifestos.
  • Ban recruitment agencies from hiring only from overseas and crack down on rogue agencies by extending the remit of the Gangmasters Licensing Authority where there is evidence of abuse.
  • People working in public services, in public facing roles, will be required to speak English.

…. and if you’re still not convinced, they will also end the badger cull!

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More Changes to the Immigration Rules

avatar Posted on April 7th, 2015 by Lynn McCloghry

It’s that time of year again! Following the Statement of Changes in Immigration Rules dated 26 February 2015, there are numerous changes to the UK Immigration Rules, procedures and application fees. The majority of these changes took effect yesterday. We highlight the most significant changes below:

Visitor Rules

The Home Office has announced changes to the Visitor visa category which will affect those wishing to visit the UK from outside the European Economic Area (“EEA”). The previous 15 routes available has been consolidated into just four visitor routes: (i) visitor (standard); (ii) visitor for marriage or civil partnerships; (iii) visitor for permitted paid engagements; and (iv) transit visitor.

The visitor (standard) sub-category now comprises some of the following existing routes: general; business; sport; entertainer; visitors for private medical treatment; and prospective entrepreneur. In practice, this means that individuals will be able to undertake a wide range of activities if entering under the visitor (standard) route than previously permitted. There are also new activities added to the “Permitted Activities” that an individual can undertake whilst visiting the UK. However, the message remains the same: visitor visas will only be valid for a period of no more than six months and visitors will still be prohibited from taking employment in the UK.

NHS Surcharge

Following secondary legislation, the “immigration health surcharge” is being rolled out. Migrants applying for a visa of more than six months’ duration will now be required to pay the surcharge in advance, at the same time as their visa application fee. Failure to pay the surcharge will result in a refusal. The surcharge is £150 per year for students and £200 per year for other applicants.  However, Tier 2 (Intra Company Transfer) migrants and nationals from Australian and New Zealand are exempt from the surcharge but must still complete the online process.

Therefore, a single Tier 2 (General) migrant applying for a five year visa will be required to pay an upfront health surcharge of £1,000. Add to this a number of dependants (for each of whom the charge will be payable) and it will represent a significant increase in the cost of obtaining a visa. The NHS surcharge will also apply to migrants applying to renew their leave to remain from within the UK. Employers may need to factor in these costs and consider wider tax implications.

Biometric Residence Permits for Non-EEA Nationals

The Home Office has started to implement the issuance of Biometric Residence Permits (“BRP”) to overseas applicants applying for leave to enter beyond six months (in accordance with EC Regulation). The implementation has started in Pakistan and is planned to be carried out in four phases country by country. The scheme is expected to be rolled out in Australia and the USA by 31 May 2015 and completed for the rest of the world  by 31 July 2015.

Once the new process has been rolled-out, applicants from overseas will receive a travel vignette with only 30 days validity instead of receiving a visa sticker detailing their full duration and purpose. Applicants will subsequently need to visit a designated UK-based Post Office within ten days of arrival to the UK to collect their BRP. As a result of this change, applicants will need to have greater certainty around their travel date and where they expect to stay upon arrival in the UK. The consequence of delaying arrival in the UK may involve a financial penalty or worse cancellation of their leave. It also means that employers must not only check the travel vignette upon arrival in the UK but must also ensure that the issuance of the migrant’s BRP confirms their right to work in the UK.

Changes to English Language Test

The list of Approved Secure English Language Tests and Test Centres has been updated. Many of the previously accepted tests have been removed (including Pearson) and some new providers added to the list. The introduction of a list of approved test centres is to ensure appropriate security features in the booking, administration and invigilation procedures. A transitional period has been introduced to help migrants who have taken their test ahead of these changes  – providing that the test was passed before 6 April 2015, the test results may be used as part of immigration applications until 6 November 2015.

Tier 1 (Investor)

Three significant changes have been introduced for Tier 1 (Investors). The most important change now requires prospective investors to open a UK-regulated investment account before making an initial application. Applicants will no longer need to invest additional capital if they sell part of their investment at a loss – they need only reinvest the sale price of the investments to maintain the minimum £2 million investment.  Buying and selling investments will continue to be permitted, providing the investor does not withdraw any capital. The other important change reflects the minimum age of applicants in this category rising from 16 to 18.

Tier 1 (Entrepreneur)

A number of changes are in place since 6 April 2015. The “genuineness” test is extended to applications for extensions and Indefinite Leave to Remain. This is likely to lead to a higher number of refusals and careful review of each application should take place before submission. All initial applications must now submit a business plan (it was previously always recommended but not mandatory). Applicants who have held the qualifying funds for fewer than 90 days prior to the date of application must now provide evidence of all third-party sources of those funds. Furthermore, clarifications have been made to the rules regarding how investment funds may be spent and the restriction on engaging in businesses principally concerned with property development or property management.

Tier 1 (Graduate Entrepreneur)

Applicants in this category are being restricted from engaging in businesses principally concerned with property development or property management, for consistency with the Tier 1 (Entrepreneur) category.

Tier 1 (Exceptional Talent)

Migrants with exceptional talent were previously granted leave to enter or leave to remain for five years. From 6 April 2015, migrants applying under the Exceptional Talent category are being given the option of how much leave they wish to apply for (up to a maximum of five years or five years and four months for entry clearance). This change is being introduced to prevent migrants being penalised by the NHS surcharge if they intend to be in the UK for shorter periods.

Tier 1 (General)

The Tier 1 (General) category is now closed to extension applications. Migrants with a Tier 1 (General) visa who wish to remain in the UK may apply for Indefinite Leave to Remain until 6 April 2018. Additionally, restrictions have been placed on the ability of Tier 1 (General) migrants to switch into Tier 1 (Entrepreneur) unless that have already established a UK business. However, a Tier 1 (General) migrant may still apply for Entry Clearance without such a restriction.

Tier 2

The key changes to the Tier 2 category are listed below:

  • The Tier 2 (General) cap remains at 20,700 for the twelve month period starting 6 April 2015 but the monthly Restricted Certificate of Sponsorship allocation has been rebalanced by UK Visas and Immigration to approve up to 2,550 Restricted Certificate of Sponsorship requests in April 2015 and up to 1,650 in each subsequent month.
  • The annual minimum salary thresholds and SOC Code salary rates for Tier 2 have increased by 1.2% (in line with changes in average weekly earnings for resident workers). For example, £20,800 is now the salary to qualify for  Tier 2 (General) whilst Tier 2 (Intra Company Transfer) Long Term Staff has risen to £41,500.  The “high earner” threshold has also increased from £153,500 to £155,300.
  • The twelve month “cooling off period” will no longer apply to Tier 2 migrants assigned a Certificate of Sponsorship for three months or less.  This is particularly good news for clients that wish to send overseas assignees to the UK for short periods.
  • There have been some changes to the Shortage Occupation List in the health sector. The Government intends to implement further changes following the MAC’s (Migration Advisory Committee) recommendations relating to graduate occupations in the digital technology sector.
  • For intra company transfers, the qualifying twelve months prior employment may include time spent lawfully employed by a group company in the UK as well as overseas.

UK Super Priority Visa Service

The super priority visa service was launched in New York in March 2015 and enables customers to receive a decision on their immigration application within 24 hours. The service costs an additional USD $936 per applicant and is available to eligible customers who can attend their biometric appointment in person at the British Consulate-General in New York. Applicants must book a biometrics appointment at the British Consulate-General 48 hours in advance. There are currently five slots available every day on Monday to Thursday from 8:30 am to 9:30am.

Eligible customers (and their dependants) include those applying for a tourist and short stay (visitor) visa; those applying under Tier 2 and Tier 5 of the Points Based System with authority to be living in the USA; and Tier 5 (Temporary worker – Creative and Sporting) or Tier 5 (Youth Mobility Scheme) applicants who are currently in the USA for a similar purpose to the activity proposed to be undertaken in the UK.

Loss of Appeal Rights

Refusals of all applications under the Points Based System and all categories under the Immigration Rules no longer have the right of appeal. The right of appeal is replaced by Administrative Review.

For more information on any of the above topics, please contact Lynn McCloghry.

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An update on holiday pay issues

avatar Posted on April 1st, 2015 by Olivia Baxendale

Last May, we reported on the European Court of Justice’s decision in the case of Lock v British Gas Trading Ltd which concerned holiday pay and commission payments. You may recall that the case was to be remitted back to the Employment Tribunal and the case was finally heard in the Tribunal last month. In its judgment, issued last week, the Tribunal held that the Working Time Regulations can be interpreted in such a way so that an employee’s holiday pay includes commission. Unfortunately, the decision did not address the key issue that many businesses and employment lawyers have been awaiting, namely, clarification of the relevant reference period for calculating commission payments during holiday. This issue therefore remains to be determined at a future Tribunal hearing.

Separately, this week the President of the Employment Tribunal has revoked practice directions issued in December 2014 concerning the handling of underpaid holiday pay claims and substituted them with new directions. The practice direction allows a claimant to apply to amend an existing holiday pay claim to include a further complaint of alleged non payment of holiday pay that has arisen after the original claim was presented. Given that many applications to amend have been made where cases are stayed, the new practice direction confirms that applications will be dealt with at the time they are made and any stay lifted temporarily for that purpose.

Finally, the Court of Appeal in Northern Ireland is due to hear an appeal in June this year against an Industrial Tribunal’s decision that voluntary overtime should not be included in the calculation of holiday pay. We will report further on this decision later this year once the appeal has been heard.

In the meantime, if you have any queries on the issue of holiday pay and commission or overtime arrangements, please do not hesitate to contact any member of our team.

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