Frontline UK Employment Law Update Edition 8 2019

Welcome to the latest edition of Frontline UK.

In light of the recent turbulence surrounding Brexit, we have a double-decker feature on the potential consequences of a no-deal. This includes an updated feature on the anticipated impact of Brexit on European Works Councils, and a video update from our international business immigration team covering Brexit-related legal risks associated with UK national cross-border workers in Europe.

Our case updates include Court of Appeal decisions on contractual hours entitlements for agency workers, the interaction between an individual's leave to remain and their ability to bring employment claims and a ruling to the effect that holiday pay should not be pro-rated for employees who are engaged on permanent contracts, but only work part of a year.

Our immigration updates cover important changes to legal right to work checks for Tier 2 visa workers who use e-Gates to enter the UK and the launch of a fast-track immigration system by the Home Office for individuals with a STEM background.

Finally, our legal update covers the Government's response to its recent consultation on misuse of NDAs and confidentiality clauses.

Join us for our Annual Employment Law Update!

Wednesday 25 September 2019

We will be discussing the sweeping IR35 changes, restrictive covenants and business protection, HR data issues 1 year post-GDPR, plus much more on the horizon...

Click here for more details.

HR & Brexit

The potential impact of Brexit on European Works Councils – an update

Pieter De Koster shines a spotlight on the question of Brexit's impact on European Works Councils ('EWCs').

Despite turbulent debate over the risks and disruptions emerging from Brexit, EWCs appear to have received little attention. Employers should not underestimate the inevitable impact of the UK's exit from the EU: it is clear that, with or without a deal, existing EWCs will be affected, and so the real question is not whether, but how much and to what extent.

Read more >

Business Immigration & Brexit - click below to view now!

Case Summary

Agency workers not entitled to same contractual hours as direct recruits

Kocur v Angard Staffing Solutions Ltd and another (Court of Appeal)

The Court of Appeal has confirmed that the Agency Workers Regulations 2010 ("AWR") do not entitle agency workers to the same number of contracted working hours as an appropriate and directly-recruited comparator. Whilst agency workers are entitled to the same "basic working and employment conditions" after 12 continuous weeks in the same role with the same hirer, this protection was intended to secure equality of treatment at work, rather than regulate the amount of work which individuals are entitled to undertake.

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Lack of leave to remain does not necessarily preclude employment claims

Okedina v Chikale (Court of Appeal)

The Court of Appeal has determined, in a highly fact specific case, that employment claims brought by an employee who was illegally working in the UK were not barred by the doctrine of illegality. In this case, the employee was not culpable for her lack of valid working permission and had actually been misled by her employer. Based on broad policy-based principles, there was no reason to construe applicable statutory or common law principles in a way which would deprive an innocent employee of otherwise legitimate contractual remedies.

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Employers should not pro-rate holiday pay for "Part-year Workers"

The Harpur Trust v Brazel (Court of Appeal)

The Court of Appeal has held that individuals who are engaged on permanent contracts but only work for particular periods throughout the year based on irregular hours, such as visiting school music teachers ("Part-year Workers"), should have holiday pay calculated with reference to their average pay in the 12 weeks immediately prior to the statutory calculation date (multiplied by 5.6), as opposed to a set – and commonly used - amount equivalent to 12.07% of total (expected) hours worked per year.

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Immigration Updates

Important changes to legal right to work checks for Tier 2 visa workers who use the e-Gates to enter the UK

Since 20 May 2019, we have seen an increase in the use of e-Gates by nationals from Australia, Canada, Japan, New Zealand, Singapore, South Korea and the USA who hold Tier 2 work visas.

As such nationals no longer receive stamps in their passports to "activate" their Tier 2 visas at the port of entry by Immigration Officers, it is possible for such employees to use the e-Gates before the validity date of their work visas and inadvertently enter as "visitors" without realising that they do not have the legal right to work. If such individuals continue to work as a visitor, it creates an unnecessary risk for employers who may face civil penalties and other consequences which may affect their sponsor licence.

Employers are advised to keep a close watch on their Tier 2 work visa holders who come to the UK for the first time via the e-Gates. Such workers must enter as Tier 2 skilled workers (and not as visitors) within the 30 day travel period as endorsed in their passports. For compliance purposes, employers are advised to keep a record of their boarding passes or e-tickets to evidence when those Tier 2 work visa workers entered the UK in addition to their 30 day visa stamp and biometric residence permits.

Home Office launching new fast-track immigration offering to individuals with STEM background

The Home Office is launching a new fast-track immigration offering for talented individuals with skills in science, technology, engineering and mathematics (STEM) subjects. Building on the existing Tier 1 Exceptional Talent visa route, the new "Global Talent" visa widens the eligibility criteria to attract more individuals to come to the UK and make a contribution to the science and research sector, with the aim of significantly enhancing the intellectual and knowledge base of the UK.

Eligibility criteria have been widened, meaning there is no minimum salary requirement and no necessity for the relevant individual to secure a job prior to arriving in the UK (unlike the existing Tier 2 route for skilled workers). Individuals will also be able to bring dependants to the UK on their Visa, with adult dependants also having full access to the labour market.

With the view to launching later this year, the scheme will provide eligible individuals with a three-year visa, during which they can come and go from the UK at will. At the end of three years, those on the scheme would be able apply for indefinite leave to remain.

You can find out more information about the new Home Office scheme here.

Legal Updates 

Government responds to consultation on misuse of NDAs and confidentiality clauses

The Government has published a response to its consultation on proposals to prevent the misuse of NDAs and confidentiality clauses, with a focus on workplace harassment and discrimination. It made a series of recommendations, including on potential new legislation which would regulate the acceptable use of confidentiality clauses.
Whilst the government acknowledged that confidentiality clauses can serve a useful and legitimate purpose (as part of both employment contracts and settlement agreements), it condemned recent examples of their misuse and noted recent evidence demonstrating that some employers have exploited the imbalance of power in the workplace and used such clauses to intimidate victims of harassment or discrimination into silence. The government's final proposals include:

  • changing the law so that a confidentiality clause cannot prevent an individual disclosing to the police, regulated health and care professionals or legal professionals;
  • ensuring the limitations of a confidentiality clause are clear to those signing them;
  • enhancing the independent legal advice available to individuals signing NDAs;
  • producing guidance on drafting requirements for confidentiality clauses; and
  • enhancing available enforcement measures for NDAs that do not comply with legal requirements.

Whilst no clear timeline is given for the introduction of the new legislation and guidance, it has been indicated that employers should expect these proposals to come into force within a relatively short timeframe and should take steps to ensure that they are prepared.

Given that the Government Equalities Office consultation on workplace sexual harassment is due to close on 2 October 2019, it may well be that further steps will be taken once the outcome of that consultation is published, given the overlap in subject matter.

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