WHAT EVERY EMPLOYER NEEDS TO KNOW Breakfast Seminar 29 April 2010

WHAT EVERY EMPLOYER NEEDS TO KNOW

Breakfast Seminar

29 April 2010

UK Business Immigration

• The Points-Based System

• Practical Issues and Tips for Employers

The Points-Based System

5 Tiers:

Tier 1 – Highly skilled workers

Tier 2 – Sponsored skilled workers with a job offer

Tier 3 – Low skilled workers (currently suspended)

Tier 4 – Students

Tier 5 – Temporary workers and youth mobility

Tier 1No specific job offer required

• General• Entrepreneur• Investor

Points requirements

• 75 for attributes: qualifications, past earnings, UK experience, age

• 10 for English language• 10 for available maintenance

funds

Since 6 April 2010:

• Points for Bachelor degrees • Full attributes points for salary

of £150,000 or more

Tier 2

• General • Intra-Company Transfer

• Sports People• Minister of Religion

Points requirements• 50 for attributes:

qualifications, prospective earnings, Intra-Company Transfer

• 10 for English Language

• 10 for available

maintenance funds

Intra Company Transfer

Since 6 April 2010:• New sub-categories• Minimum prior

experience raised from 6 to 12 months

• No longer a route to settlement in the UK

Sponsorship

• Online application and investigation

• Key roles:– Authorising officer

– Key contact

– Level 1 user

– Level 2 user

• ‘A’ or ‘B’ Rating• Certificates of sponsorship• Sponsor Duties – General

and specific

e.g. Resident Labour Market

Test

Entry Clearance

Consequences of Breach

»Suspension»Downgrading»Revocation of licence

Example reasons for enforcement activity:

• Branches not covered by licence• Sponsored workers move to new location• Change in key personnel not reported• Non-compliant RMLT• Not linked for ICT purposes

• Civil and criminal penalties, warnings, fines.• Deportation and ban from re-entering the UK.

PRACTICAL ISSUES

1. Should the company become a registered sponsor?

2. Are your internal records up to date?

3. Are you up to date with current immigration rules?

4. What is best for the employee?

5. Do you have long term immigration strategies in place?

And finally…

Employment law vs Immigration rules

• Race discrimination

• Unfair dismissal

The future…?

• How to avoid potential discrimination claims

• Restrictive Covenants – taking on key staff: how to manage the risks

Anna Birtwistle

The Recruitment Process

Recruitment and discrimination

• Job applicants can bring claims for:

– Discrimination in the arrangements made for recruitment

– Discrimination by the employer in the terms of the employment offered;

– Discrimination as a result of a refusal or a deliberate failure to offer employment;

– Harassment

• Protected grounds: sex, race (to include colour, nationality, ethnic or national origin), disability, age, religion or belief, sexual orientation, gender reassignment, marital or civil partner status.

Recruitment and discrimination

• What we are talking about today:– Advertisements– Interview process– Selection process

• Remember importance of:– Equal Opportunities Policy– Recruitment Policy

AdvertisementsWhat not to do…

Discriminatory advertisements

Sex, Race, Disability

• Unlawful to publish advertisements which could reasonably be interpreted as indicating an intention to commit an unlawful act of discrimination on grounds of:– Sex (section 38 of SDA)– Race (section 29 RRA)– Disability (section 16B of

DDA)

• ECHR power to seek declaration and injunction

Age, Religion or Belief, Sexual Orientation

• Law does not expressly prevent discriminatory advertisements on grounds of Age, Religion or Belief and Sexual Orientation

• Note, however, that discriminatory advertisements on these protected grounds can still use as evidence of the employer’s intention to discriminate during the recruitment and selection process

Advertisements

• Written job descriptions and person specifications

• Content– Real requirements of the role– Language– Statement that company is an equal opportunities

employer

• Consider the medium of advertising– Internet– Trade publications/press– Word of mouth

Genuine occupational requirements / qualifications

• An employer can discriminate in relation to recruitment on grounds of race, ethnic or national origins, religion or belief, sexual orientation or age, if:

– The discriminatory characteristic is a genuine and determining requirement of the job.

– It is proportionate to apply that requirement in the particular case.

– Either the person does not meet the requirement, or the employer is not satisfied (on reasonable grounds) that the person meets it.

• If a job is being advertised where a GOR or GOQ applies, it is best practice to state this fact in the job advertisement together with the relevant statutory references

Specific cases

– Sexual Orientation Regulations in relation to employment for the purposes of an organised religion (regulation 7(3), Sexual Orientation Regulations).

– The Religion or Belief Regulations contain a GOR allowing organisations with a particular religious ethos to discriminate on grounds of religion or belief (regulation 7(3), Religion or Belief Regulations)

– The Race Relations Act contains a number of job-specific GOQs, which include: drama, entertainment and modelling roles; "authenticity" in bars and restaurants; and the provision of personal welfare services to persons of a particular racial group (section 5, RRA)

– The Sex Discrimination Act contains a number of job-specific GOQs, including: drama, entertainment and modelling; work in single-sex institutions such as hospitals or in private homes involving intimate contact; provision of personal welfare services; and where it is necessary to preserve decency or privacy (section 7, SDA)

Interview and Selection

• Interview process– Venue– Timing– Written or psychometric tests

• Selection criteria– In writing– Objective– Creates a “level playing field”

Interview

• Prepare interview questions (and stick to them!)

• Only ask questions which relate to the candidate’s ability to do the job

• Same questions, same order for each candidate

TIP: Avoid personal questions:

– “Are you planning on having a family soon?”

Finally, rememberDO:

• Be objective• Focus on the requirements of the role

and the qualifications necessary to do this role

• Try and involve more than one person in the decision making process

• Use standardised interview questions• Keep a paper trail, including:

– Job description– Person specification– Selection criteria– Any written tests– Notes of the short listing process– Interview questions– Notes of interview and any

discussions that followed (handwritten and/or score sheets)

DO NOT:

• Be subjective i.e. “he/she wouldn’t fit in”

• Advertise in only one publication/medium

• Use language/job titles which are gender-specific

• Use the words “young” or “mature” and avoid buzz words such as “dynamic”, “with it”

• Stipulate number of years’ post qualification experience unless strictly necessary

• Ask personal questions during interview or tailor your interview to the candidate

Restrictive Covenants

• Control of employee’s behaviour post termination

• Public Policy – void as restraint of trade

unless…

Exceptions

1. Legitimate business interest to protect

2. Protection is no more than reasonable having regard to the parties and the public interest (Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co.Ltd)

Types of Restrictive Covenants

• Non-solicitation– Customers– Existing employees– Non-dealing

• Non Compete – Moving to competing business– Setting up in completion

Enforceability

• Be specific about what you are trying to protect, your legitimate business interest should be either;

– A trade connection; or– A trade secret or other

confidential information

• Key Issue = length of restriction

TIPS

• In relation to non-solicitation clauses, limit these to customers and colleagues that the exiting employee has had direct contact in the 12 months prior to termination

• Length of restriction should be no longer than necessary to protect your business

Restrictions During Employment

• Garden Leave– Requires employee to remain at home during notice

period– Express clause in contract– Is there an implied right to work? (William Hill Organisation Ltd v Tucker)

– Typically applies during 3 – 12 months’ notice

• Post termination restrictive covenants less likely to be enforceable (Credit Suisse Asset Management Limited v Armstrong)

Liability For New Employer/Recruiter

• Procuring and inducing breach of contract– Where third party knowingly and intentionally

procures a breach of contract

• Conspiracy and/or unlawful interference with business or breach of confidence

• Account as potential trustee– Breach of fiduciary duty– Liable to account for either having dishonestly

assisted the employee’s breach or knowingly in receipt of trust property

Team Moves• Hard to do without risk of breach and liability

• Typical issues:– Requests to disclose confidential client/business

information to new firm– Speaking to colleagues– Speaking to clients– Risk of procuring and inducing of new firm or recruiter

encourages breaches

• Springfield injunction(UBS Wealth Management (UK) Limited v Vestra Wealth LLP [2008])

Reducing risk

• Be aware of the restrictions contained in the candidates contract of employment

• Do not ask candidates for information which will be deemed to be confidential

• Advise candidates to comply with their duties and obligations

What’s new for 2010:I. The Equality Act 2010

• Summary and key issues

– Equality Act 2010 can be traced back to February 2005– Two main aims are to bring together existing strands of

discrimination legislation in one Act to:

1. Harmonise existing discrimination law

2. Strengthen existing discrimination law – Most employment related changes come into effect in October

2010

• Summary of key changes

• Tips for you as an employer

What’s new for 2010:II. Default Retirement Age and

Age Discrimination• Summary and key issues

– Currently employees can be mandatorily retired at 65– Challenge to DRA failed in September 2009– Government consultation on DRA ended on 1 February 2010– Government undertaking review of DRA - results were expected

in Spring 2010, don’t be surprised if results arrive in Summer– Likely outcome of review? No one knows, but my guess is

increase in DRA to 67 or 68


What’s new for 2010:III. Religious Discrimination


– Since December 2003, “religion” and “belief” are protected grounds

– Busy 6 months in this area– Ladele v London Borough of Islington (Decided: December

2009)– Eweida v British Airways Plc (Decided: February 2010)– Chaplin v Royal Devon and Exeter NHS Trust (Decided: April

2010)


What’s new for 2010:IV. Agency Workers


– Typical scenario: agency worker hired by employment agency and then contracted out to employment agency’s clients

– Fundamental changes coming into effect on 1 October 2011– Legislation in UK based on European equal treatment legislation– From 1 October 2011, entitled to at least same “basic” working

and employment terms and conditions if had been hired directly by end user

– Many rights only apply after 12 week qualifying period– Basic rights include basic pay and performance related bonus,

holiday and overtime pay, shift allowances– Equal treatment principle does not apply to contractual notice

pay, contractual redundancy pay or occupational sick pay amongst others


What’s new for 2010:V. Paternity Leave


– Since 2003, eligible fathers have been entitled to up to two consecutive weeks’ paternity leave and pay

– For babies born on or after 3 April 2011, fathers have increased entitlements. Similar rights for couples adopting children

– Minimum period of APL 2 weeks and maximum is 26 weeks. – Mother and father can share a total of 39 weeks’ statutory

maternity or paternity pay– Eligibility requirements include:

Notice requirementsChild must be under age of oneFor father to take APL, mother must have returned to work

and not have exhausted entitlement to statutory maternity leave


What’s new for 2010:VI. Fit Notes


– Emphasis on what employees can do rather than what they cannot do

– GPs given option to say employees “not fit for work” or “may be fit for work taking account of the following advice”

– No “fit for work” option– Beware of potential disability discrimination and effect on

insurance cover


Clare Murray

Managing Partner

Edward Wanambwa

Partner

Bettina Bender

Partner

Charis Damiano

Consultant

Esther Martin

Associate

Anna Birtwistle

AssociateSusanne Foster

Associate

The CM Murray LLP Team

Documents

WHAT EVERY EMPLOYER NEEDS TO KNOW Breakfast Seminar 29 April 2010