Frontline UK - Edition 3 2019
Written By
This month, Associate Yuichi Sekine summarises some key changes to the UK's immigration rules amidst the chaos of Brexit, as well as some predictions of what the Government's Statement of Intent means for their longer-term plan on immigration policy and its interaction with the UK economy.
Our case updates include a Court of Appeal confirmation that hiring companies may remain responsible for compensating agency workers even where an agency has failed to pass on payment; a decision on what employers need to show to lawfully suspend an employee; a finding that a dismissal due to anticipated relationship difficulties was TUPE related and therefore automatically unfair; further developments in the gig economy space on classification of workers and their right to bring discrimination or unfair dismissal claims; and an EAT decision which held that tribunal judgments should remain publicly available and searchable despite potential reputational damage for the parties involved.
Finally, our legal updates discuss the incoming uplift to minimum pensions contributions and statutory rates (including national minimum wages) which are effective from April 2019.
Whilst political uncertainty remains with Brexit, the fog is beginning to lift in the legal landscape for future immigration control in the UK.
In the midst of Brexit chaos, it has not escaped our notice that the Home Office published their Statement of Intent to change the Immigration Rules (HC 1919) on 7 March 2019. For employers, there are significant changes to the Immigration Rules which will have an impact on the recruitment and retention of their EU national talent.
Case Summary
By Alison Dixon and Sam Rayner
Agency workers: hiring company remains responsible for its share of compensation due to agency workers for failure to pay equalised pay rates, despite agency's failure to pass on payments already received from the hiring company to the workers
London Underground Ltd v Amissah (Court of Appeal)
The Court of Appeal has confirmed that an employment agency's failure to pass on to its workers payments which were provided by the hiring company to ensure equalised rates of payment between agency workers and the hirer's employees in compliance with the Agency Workers Regulations 2010 (the "AWR") does not absolve the hiring company from its liability to pay compensation under the AWR if the agency workers do not actually receive the payments.
Suspending employees: is it reasonable and proper?
Mayor and Burgesses of the London Borough of Lambeth v Agoreyo (Court of Appeal)
The Court of Appeal has confirmed that an employee should only be suspended by an employer if it is reasonable and proper to do so, otherwise the employer risks breaching the implied contractual term of mutual trust and confidence. The decision to suspend should be considered carefully in light of each individual case and must not be a routine or knee-jerk reaction by an employer to allegations of misconduct.
Dismissal due to anticipated relationship issues was automatically unfair under TUPE
Hare Wines Ltd v Mrs Satwant Kaur, H&W Wholesale Ltd (Dissolved) (Court of Appeal)
The Court of Appeal has confirmed that an employment tribunal had been entitled to reject an employer's assertion that an employee subject to a TUPE transfer had been dismissed by reason of the cessation of a business. The Tribunal had legitimately found that the real reason for termination was the new employer's anticipation of future difficulties in the relationship between that individual and a colleague, which could be characterised as connected to the transfer of employment and therefore automatically unfair under TUPE.
National Gallery experts held to be workers and not self-employed
Braine and others v The National Gallery (Employment Tribunal)
The Employment Tribunal has found that art experts, when working on individual assignments for The National Gallery (some over a period of decades), were workers and not self-employed 'freelancers'.
Tribunal judgments should be published despite reputational risks
Ameyaw v Pricewaterhousecoopers Services Limited (Employment Appeal Tribunal)
In a case looking at the new tribunal database, the Employment Appeal Tribunal (EAT) held that tribunals don’t have the power to remove judgments from the database and, whilst they can grant anonymity, an order to this effect will only be made in very limited circumstances.
Legal Updates
Pensions auto-enrolment: Incoming uplift to minimum contributions
Under the Pensions Act 2008, UK employers are required to automatically enrol certain eligible workers into a qualifying pension scheme and to pay a minimum level of contributions into that scheme. On 6 April 2019, the total minimum contribution rate will rise to 8% of a worker's qualifying earnings, with at least 3% required to come from the employer. Employers should adjust their practices accordingly and, to the extent necessary, communicate any requirement for increased staff contributions to their workforce as soon as possible. For more information, see here.
Employment Rates to increase on from April 2019
The Employment Rights (Increase of Limits) Order 2019 (SI 2019/324) will increase the caps on aspects of compensation which may be awarded by the Employment Tribunal. From 6 April 2019, the maximum compensatory award for unfair dismissal will rise from £83,682 to £86,444 and the maximum amount of a "week's pay", which is commonly used in statutory redundancy payment calculations, will increase from £508 to £525. For more information, please see here.
In addition, national living and minimum wages will change from 1 April 2019 as follows:
|
Year |
25 and over |
21 to 24 |
18 to 20 |
Under 18 |
Apprentice |
|
Current rate |
£7.83 |
£7.38 |
£5.90 |
£4.20 |
£3.70 |
|
From 1 April 2019 |
£8.21 |
£7.70 |
£6.15 |
£4.35 |
£3.90 |
