Employment Bulletin September 2015

Tough new crackdown on firms employing illegal immigrants

The government is to introduce tough new penalties including longer prison sentences for employers who hire illegal immigrants. In some cases, businesses could be closed down and pubs could have their licences revoked.

The measures are contained in the new Immigration Bill, which will introduce an offence of illegal working. Illegal immigrants will face a jail sentence and could have their wages seized as proceeds of crime.

Employers will also face strong sanctions. Immigration Minister James Brokenshire said: "Through our new Immigration Bill, illegal workers will face the prospect of a prison term and rogue employers could have their businesses closed, have their licences removed, or face prosecution if they continue to flout the law.

"Using illegal labour exploits workers, denies work to UK citizens and legal migrants and drives down wages. New powers in the Bill will make it easier to prosecute an employer who knows, or reasonably suspects, that the person they employ has no permission to work in the UK.

"The existing evidence requirement to prove this offence will be changed in order to boost prosecutions and the current maximum sentence will be increased from two to five years. These powers will operate alongside the existing system of heavy financial penalties.

"Any employer who continues to flout the law and evade sanctions could see their business closed for up to 48 hours while they prove right to work checks have been conducted on staff. The worst offenders would then be placed under special measures as directed by the court, which could lead to continued closure and compliance checks.

"Further new powers will also mean any pub, off-licence or late night takeaway that fails to comply with immigration laws or employs illegal workers could be stripped of their licence to operate. Consideration is also being given to extend these powers to cover minicab drivers and operators."

We shall keep clients informed of developments.

Police forces 'had not discriminated' on grounds of age

Five police forces have won an appeal against a tribunal decision that officers who had been forced to retire had been discriminated against because of their age.

The case involved five police forces who had decided to reduce staff numbers following budget cuts.

They considered that using provisions in the Police Pension Regulations was the only means of achieving the necessary reductions.

Regulation 19 applied to officers entitled to a pension worth two-thirds of their annual pensionable pay, which took a minimum of 30 years' service to achieve. It did not permit the compulsory retirement of anyone not entitled to such a pension.

The use of reg.19 therefore disadvantaged those over 48 who wished to continue in service until 60 or 65, the required retirement ages depending on rank. The officers claimed that this meant they had been indirectly discriminated against.

The Employment Tribunal ruled in their favour. It held that the compulsory use of the regulation was not a proportionate means of achieving a legitimate aim, as required by law.

The Employment Appeal Tribunal has now overturned that decision. It held that although the tribunal had correctly concluded that discrimination had potentially occurred when the forces chose to use reg.19, it had not focused on the fact that the discrimination was inherent in the regulation itself, and that there was nothing inherently discriminatory in the forces' practice independent of reg.19.

The first tribunal had wrongly concentrated on the process and reasoning adopted by the forces when deciding to apply reg.19, rather than enquiring whether the use of reg.19 was proportionate, and therefore justified objectively. It had applied too stringent a standard of scrutiny.

Temp workers 'not entitled' to be interviewed for permanent post

Temporary workers have the right to be informed of vacancies at the company employing them but that doesn't automatically entitle them to be interviewed for any particular post.

Employers are also justified in giving preference to permanent employees who are facing the threat of redundancy.

Those were the findings of the Employment Appeal Tribunal in a case involving a temporary worker at the Ministry of Defence (MoD).

The worker had been engaged by an agency to work temporarily for the MoD. After a restructure, the MoD placed over 500 of its permanent employees into a redeployment pool. Those employees were given priority over other applicants for vacant posts. The post which the worker had been filling was advertised internally as a permanent position.

An employee from the redeployment pool was appointed. The temporary worker did not see the advert and did not apply. Had he done so, he would not have been appointed because the permanent employee would have been given priority over him.

The worker claimed that the MoD had breached reg. 13 of the Agency Workers Regulations, which provided that agency workers had "the right to be informed by the hirer of any relevant vacant posts with the hirer, to give the agency worker the same opportunity as a comparable worker to find permanent employment with the hirer".

The tribunal concluded that although the employee should have been informed about the vacancy, employers were entitled to give priority to redundant employees over temporary agency workers.

The Employment Appeal Tribunal upheld that decision. It held that the regulation was designed to give temporary agency workers the same chance as other workers of finding permanent employment. It had nothing to say about the terms on which there should be recruitment for any post. If an employer wished to give preference to those being redeployed, he was entitled to do so.

Employer breached terms of trust in misconduct investigation

An employer was wrong to say that an employee facing a misconduct investigation could only be accompanied by a trade union representative or another member of staff. In doing so, it had breached the term of trust and confidence between employer and employee.

That was the decision of the High Court in a case involving a university and one of its professors.

The professor's contract of employment with the university was dependent on his retaining an honorary appointment with an NHS foundation trust under which he carried out clinical duties. At the university, the professor led a research programme involving a number of clinical trials, the majority of which were jointly sponsored by the trust and the university.

An investigation was carried out in response to concerns about breaches of good clinical practice in the conduct of the trials. The professor was suspended from all duties at the university pending an internal disciplinary investigation.

The university's disciplinary procedure stated that he could be accompanied by a fellow employee or a union representative. The professor said he had no friends at the university as he spent most of his time away from campus. He wanted to be accompanied instead by a member of the Medical Protection Society (MPS). The university refused permission as it felt it would set an unhelpful precedent.

The court ruled in favour of the professor. It held that the university's right to rely upon the express terms of the contract was modified by the overriding obligation of trust and confidence.

There was nothing to prevent the investigator from allowing the professor to be accompanied by the MPS representative. It would be patently unfair not to allow the representative to attend, given the seriousness of the allegations.

There was no reasonable cause for the university's unfair conduct and it therefore followed that there had been a breach of the overriding term of trust and confidence.

75 businesses named and shamed over Minimum Wage breaches

Another 75 businesses have been named and shamed for failing to pay their employees the National Minimum Wage.

The named companies spanned several sectors including hairdressing, fashion, publishing, hospitality, health and fitness, automotive, social care, and retail. Between them, they had underpaid their workers by £153,000.

The name and shame scheme was introduced in 2013. Since then, a total of 285 employers have been named and made to pay penalties of £325,000.

Business Minister Nick Boles said: "We are determined that everyone who is entitled to the National Minimum Wage receives it. When the new National Living Wage is introduced next April (2016) we will enforce robustly."

The current National Minimum Wage rates are:

• adult rate (21 and over) - £6.50 per hour
• 18 to 20-year olds - £5.13 per hour
• 16 to 17-year olds - £3.79 per hour
• apprentice rate - £2.73 per hour.

The apprentice rate applies to apprentices aged 16 to 18 years and those aged 19 years and over who are in their first year. All other apprentices are entitled to the National Minimum Wage rate for their age.

The government has issued the following guidelines about its naming and shaming policy:

"Under this scheme the government will name all employers that have been issued with a Notice of Underpayment (NoU) unless employers meet one of the exceptional criteria or have arrears of £100 or less.

"Employers have 28 days to appeal to HMRC against the NoU (this notice sets out the owed wages to be paid by the employer together with the penalty for not complying with minimum wage law). If the employer does not appeal or unsuccessfully appeals against this NoU, BIS will consider them for naming.

The employer then has 14 days to make representations to BIS outlining whether they meet any of the exceptional criteria, which are:

• naming by BIS carries a risk of personal harm to an individual or their family
• there are national security risks associated with naming in this instance
• other factors which suggest that it would not be in the public interest to name the employer (employer to provide details).