Government crackdown on employing illegal immigrants

Transcription

1 Government crackdown on illegal immigrants Q. What does the haulage industry need to be aware of? Given the recent announcement of the Government s intention to crackdown on Companies illegal immigrants, which has in part come about due to pressure over the present crisis at Calais, it is perhaps now more important than ever that Companies ensure that they are complying with their legal obligations when staff. It is worth noting that the penalties not only apply to illegal immigrants but to any foreign national who does not have the correct immigration permission. It is also worth noting that whilst the Government is currently targeting building sites, care homes and cleaning firms in particular, foreign nationals who do not have the correct immigration permissions can take place in any industry, and the consequences to doing so apply regardless of the industry. Q. What should Haulage Companies be doing? Companies should ensure that they have robust systems in place to undertake right-to-work document checks to ensure that the prospective employee has the legal right to live and work in the UK based on a 3 step process: obtain original; check validity; retain a copy. It is important that checks are carried out before employment starts and not, for example, on their first day at work. There should also be systems in place for those who have time-limited immigration status to ensure that the necessary checks are carried out periodically (and at least every 12 months) at the appropriate times depending on the actual permissions granted. Failure to carry out these subsequent checks may mean that employers inadvertently continue to employ a worker without immigration permission. Companies should ensure that those responsible for carrying out the checks are aware of and understand their obligations and take appropriate disciplinary action if those individuals are found to have failed to carry out their duties. Companies should also consider whether they wish Page 1 of 7

2 to include a contractual clause in their contracts of employment in which the employee warrants that they have the legal right to work in the UK and to notify the Company immediately if they cease to be so entitled at any time during their employment. Whilst ultimately it is the Company s responsibility to carry out the checks if they wish to rely on the statutory defence, this at least puts some of the burden on to the employee as they will be in breach of contract if they are not entitled to work in the UK. If Companies have not been proactive with their immigration checks to-date, it s never too late to implement a good working system. Q. What are the consequences? If found to be illegally foreign nationals, a Company may face not only civil but also criminal penalties. An employer who unknowingly employs a migrant who does not have immigration permission faces a fine of up to 20,000 for each illegal worker. However, an employer will have a defence if it can show that it carried out checks of certain documents before the individual and (in some cases) at least every 12 months during employment. An employer who is found to be knowingly a migrant who does not have immigration permission will commit a criminal offence which could lead to a prison sentence and an unlimited fine for the employer. There is no defence. Historically the civil penalty has been used more than the criminal penalty as there is no requirement to prove knowledge. Importantly, Operators should be aware that if they are found to be illegally foreign nationals, this could go to their good repute for the purpose of their O-License. Employment tribunal fee challenge by union fails The trade union, Unison has failed in its challenge to the Government s employment tribunal fee regime. The Court of Appeal has ruled that Unison s argument that a decrease in the number of employment claims was entirely due to the cost of making a claim was not enough for the court to rule the fees as unlawful. The Court of Appeal found that the charging of court fees is not in itself objectionable and that there was insufficient evidence of claimants ability to afford the costs. Lord Justice Underhill, whilst troubled by the reduction in claims, said the High Court had been right to be reluctant to reach a decision on the material before it. He said: It is a strong thing to strike down legislation on the basis of disputed Page 2 of 7

3 predictions as to its effect when the passage of a comparatively short period of time will prove their correctness or otherwise. In my view it was a proper exercise of the court s discretion in the present case, given the real difficulties with the quality of the evidence available pre-implementation, to decline to grant any relief. The Court acknowledged that the Government would be carrying out its own assessment of the fees system, to determine whether its original objectives have been met, and described the decline in the number of employment tribunal claims since it was introduced as 'sufficiently startling to merit a very full and careful analysis of its causes'. Unison has announced that it is preparing to take the case to the Supreme Court. The Labour Leadership Candidates: Where they stand on Employment Law issues? With voting underway for who will be the next leader of the Labour Party, it is worth considering where the candidates are positioned on key issues which affect Employment Law in the UK. Jeremy Corbyn Jeremy Corbyn is the unexpected front-runner in the leadership race and is the most left wing of the four candidates. He is principally a trade unionist and this shapes many of his policies which would affect employment law. Jeremy Corbyn s main proposals are as follows: To promote trade union involvement in company decision making. To tackle the gender pay gap by requiring all companies, irrespective of size, to publish equal pay audits. To abolish the continuous employment requirement for employment rights, such as protection against unfair dismissal, for full-time and part-time workers. To outlaw zero hour contracts. Liz Kendall To strengthen recognition rights for trade unions and enhance collective bargaining protection. Mr Corbyn believes that this will contribute to a fairer distribution of pay throughout all workers in society. Liz Kendall is perceived as the most right wing of the four candidates, but she has nevertheless expressed a desire to strengthen the party s ties with trade unions. Liz Kendall s main proposals are as follows: Page 3 of 7

4 To introduce measures to raise wages as part of moving towards a living wage society. To strengthen and enhance the Low Pay Commission, which currently has a remit to set the national minimum wage. Liz Kendall proposes to give the Commission a more active role which would allow it to work with workers, businesses and unions. Liz Kendall is also a former director of Maternity Alliance and so will presumably be a strong advocate for women s rights and family rights in the workplace. Andy Burnham Andy Burnham was many people s pre-contest favourite and has promised to take Labour out of the 'Westminster bubble' and reach out to voters everywhere to help people get on in life. Andy Burnham s proposals are as follows: To remove age bands in the national minimum wage and introduce measures to raise it to a living wage. To be a proponent of women s rights in the workplace and society and have a gender-balanced shadow cabinet. To extend the right to request flexible working conditions from the commencement of employment, thus removing the current 26 week qualifying requirement. Andy Burnham has also expressed his opposition to zero hour contracts and unpaid apprenticeships. Yvette Cooper Yvette Cooper is widely perceived to have run a low key campaign, with some interpreting this as caution against alienating voters. Yvette Cooper s proposals are as follows: To ensure that publically funded social care services pay workers a living wage. To introduce measures to increase wages for all and introduce a living wage in place of the Page 4 of 7

5 national minimum wage. This increase would be funded by closing tax loopholes for large businesses. Yvette Cooper was the first Minister to take maternity leave and is an advocate of women s rights in the workplace. She would extend the three-month limit for bringing discrimination claims for maternity related discrimination. Common Ground All the candidates believe that the Employment Tribunal fees system unfairly impedes access to justice and are therefore in favour of abolishing the system. Likewise, all the candidates are opposed to the Trade Union Bill which is currently passing through Parliament to become law. They would instead strengthen the position of trade unions in the workplace; albeit to different degrees. Whoever wins the leadership contest will have be faced with the difficult task of bringing back voters following the resounding defeat in the general election. However, the winning candidate may well be the next Prime Minister and the above policies could shape the future of employment law in the UK. Is the refusal to allow the employee s choice of companion at a disciplinary investigation hearing a breach of the implied term of trust and confidence? Yes, held the High Court in Stevens v University of Birmingham. The Case Professor Stevens was employed by the University of Birmingham as Chair of Medicine, which was subject to him maintaining an honorary appointment contract with the Heart of England NHS Foundation Trust ( NHS ) to undertake clinical duties as a consultant. Effectively he was subject to two contract of employment. Following investigations into allegations regarding his role as Chief Investigator to clinical trials of diabetes patients, Professor Stevens was suspended by the University and invited to an investigatory meeting. Under his contract with the University there was reference to a disciplinary procedure which applied to clinical academic staff and was collectively agreed with the approved union. This gave the employees the right to be accompanied by a staff member or trade union representative at an investigatory meeting. The NHS Contract did not expressly refer to a disciplinary procedure but they did have their own procedure which set out the categories of companion allowed, including a member of a defence organisation. Page 5 of 7

6 1. Was there a contractual right to be accompanied by Dr Palmer; 2. If not, was the refusal a breach of the implied terms of mutual trust and confidence Decision Professor Stevens was advised of his right to be accompanied by a Trade Union Representative or staff member. He was not a member of a Union and because of his limited contact with colleagues at the University there was no one that would be appropriate to accompany him. Those colleagues he did have regular contact with were likely to be witnesses in the case. He was however a member of the Medical Protection Society, a medical defence organisation and had been assisted by Dr Palmer since the start of the investigation and who was familiar with clinical trials. The University refused to allow him to be accompanied by Dr Palmer on the basis that he was not a member of staff or a Trade Union Representative. Professor Stevens maintained that Dr Palmer was the equivalent of a trade union representative and without him he would have to attend alone which was unfair. Professor Stevens sought a declaration from the High Court that he was permitted to be accompanied at the investigatory meeting even though he did not fall within the category permitted. The High Court had to decide two questions: The High Court held that there was no contractual right, either express or implied, to be accompanied at the investigatory meeting by Dr Palmer. They did however conclude that the refusal to allow Dr Palmer to attend was a breach of the implied term of mutual trust and confidence and granted a declaration to that effect. In coming to its decision, the High Court considered that Professor Stevens role was governed by both contracts; there was no agreement between matters which the University would take disciplinary action and which the NHS would take action. Therefore, Professor Stevens had different rights under the two disciplinary procedures and which one applied depended on who initiated the disciplinary action. Page 6 of 7

7 In this case it was the University, however had the NHS taken the lead on disciplinary action Dr Palmer would have been entitled to accompany him. Professor Stevens had no control over this. The High Court also considered the serious consequences of the allegations against Professor Stevens and the suitability of Dr Palmer as a companion. They noted that as a result of the University s refusal, Professor Stevens was in effect being denied a choice of companion because he was not a trade union member and he did not have regular contact with other members of staff at the University. Furthermore, Dr Palmer had relevant knowledge and expertise, had been involved in the proceedings from the outset and occupied a role similar to that of a trade union representative which made him well placed for the role of companion. Practical Implications - This case is unusual in the sense that the breach did not bring the employment relationship to an end; it would not have been in Professor Stevens s interests to resign and bring a constructive unfair dismissal claim without the opportunity to defend the serious allegations against him and clear his name. - Following the recent decision of Toal v GB Oils, the non-statutory ACAS guidance to the Code of Conduct on Disciplinary and Grievance Procedures was amended to make clear that employers can allow workers to be accompanied by companions who are not trade union representatives or work place colleagues, albeit that this is guidance and does not create a burden on the employer to do so. - Employers should always consider exercising their discretion to allow an employee to be accompanied by companions who do not fall within one of the two categories, particularly where doing so would assist with the overall fairness of the process. Please note: This publication does not constitute legal advice DID YOU KNOW BACKHOUSE JONES PROVIDE THE FOLLOWING SERVICES: Mergers & Acquisitions; Company disposals; Management buy-ins / buy-outs; Group and Company restructures; Joint Ventures; Investment and Shareholders Agreements; Banking and Finance; Corporate Recovery; Company Formations; Partnership and LLP advice & formation; Corporate Governance & Companies Act compliance; Commercial Contracts - Terms & conditions, Supply agreements etc; Agency, distribution and franchise agreements; and Commercial Property For enquiries on all related matters please contact: Backhouse Jones Employment Team Steven Meyerhoff T: steven.meyerhoff@ backhouses.co.uk Page 7 of 7