In a bid to further ramp up the pressure on immigration, the Government has substantially increased the penalties for both employers and landlords who, mistakenly or otherwise, hire or rent properties to illegal migrants.

The Home Secretary, Suella Braverman, recently confirmed an amendment in the penalty charges which are both eye-watering and of real significance for employers who are found to have taken on an illegal worker. These will come in next year.

The fine for employers will be increased to £45,000 per illegal worker for the initial breach, a steep rise from the previous £15,000.

For repeat breaches, this amount will escalate further to £60,000, up from £20,000.

The Home Office has also announced forthcoming consultations aimed at strengthening the actions against licensed businesses that employ illegal workers.

The statistics from the past few years are sobering. Since 2018, nearly 5,000 civil penalties have been issued to employers amounting to over £88 million in fines. Landlords too faced over 320 penalties, though the effect is considerably lower, adding up to just £215,500.

The emphasis from the Minister for Immigration, Robert Jenrick, is clear: “There is no excuse for not conducting the appropriate checks, and those in breach will now face significantly tougher penalties.”

As was the case before this, every employer should undertake the necessary checks to ascertain the legitimacy of their hires.

The Government is clearly taking a stance, stating that this policy has a number of aims:

• Curbing illegal immigration: Illegal working opportunities and housing are significant attractions for migrants. This often becomes the premise used by people smugglers.
• Ensuring fair competition: Employing illegal workers undercuts legitimate employers, depriving genuine job seekers of work opportunities.
• Economic impact: Illegitimate hiring evades the tax system, negatively impacting the national economy.

Key Actions for Employers:

• Revisit Recruitment Procedures: Ensure that your recruitment and vetting processes are stringent, updated, and in line with the new regulations. Above all, make sure proper Right to Work checks are carried out on all new employees.
• Utilise the Home Office Online System: This check takes just five minutes and is available on the GOV.UK website.
• Educate your Hiring/HR Team: Ensure that the people who recruit within your organisation are aware of the recent changes, and they know how to correctly carry out the necessary checks, prior to the applicant starting employment. This is key, as it is not uncommon that Line Managers are solely interested in getting new people started as soon as possible, and believe that right to work checks are just a tick box administrative exercise done only when there is time. This is now far from the case.
• Regularly Audit Existing Employees: Regularly review and update the status of current employees to ensure compliance. It is easy for those with a time limited Right to Work to fall through the cracks. Although, the Government also announced in July, New Immigration Rules confirming that from September 2023, people with pre-settled status under the EU Settlement Scheme (EUSS) will automatically have their status extended by 2 years before it expires, if they have not already obtained settled status.
• Stay Updated: Keep abreast of upcoming consultations and changes in the law to ensure ongoing compliance, such as the July announcement, as the Immigration rules are being regularly updated.
• Seek Expertise: Seek advice from experts, and especially on the periodic reviews and audits to ensure that your business remains compliant.

A proper process for ensuring this happens with every new hire is crucial, the penalties are too large to ignore.

If you are in any doubt at all, give us a call. We are not immigration experts, so some questions may need to be referred to others, but our team is here to support you, ensuring that your recruitment process is both effective and compliant.

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

During last month, several new employment laws were given Royal Assent. This does not mean that they are now law, but they will be. But it normally takes at least 12 months for such legislation to come into force, so we are not talking any earlier than April 2024 implementation dates.

Each of these give important new employee rights which employers need to prepare for – the good news is that there is plenty of time. Here is a summary of what you can expect.

The Protection from Redundancy (Pregnancy & Family Leave) Act

Legislation that extends the protection that employees on maternity leave already enjoy with regards to redundancy.

As part of a redundancy programme, employers currently have to offer those on maternity leave priority over other employees that may also be at risk of redundancy, regarding any opportunities for suitable alternative work positions that may exist. The idea being that this should provide them with a greater possibility of remaining in employment.

Once this law comes into effect, employees on adoption/shared parental leave will also enjoy greater protection, as well as employees who have recently suffered a miscarriage.

Just as importantly, the period the protection is effective for those on maternity leave has been extended. It will apply from the point the employee informs the employer that she is pregnant, whether verbally or in writing, and will end 6 months after returning from maternity or adoption leave, although the exact length of the full period of protection has yet to be clearly defined, especially if the employee chooses not to take their full 12 month leave entitlement. So, this is one that requires further clarification.

This protection does not extend to anyone taking Paternity leave.

The Carer’s Leave Act

This new law has been widely trailed. It gives every employee an entitlement of one week’s unpaid leave per year for those who have a dependant with a long-term care need.

As it is a first-day right, it will be available to employees from the first day of their employment. And, there is no requirement to provide evidence other than self-certification. Carer’s Leave can be used for any type of care, such as taking someone to hospital appointments, or assisting with financial matters.

While there is no restriction on how the leave is used, who is a ‘dependant’ will be tightly defined. And while employers might feel it is an unnecessary burden, it is unpaid so it will not necessarily provoke a stampede to take up.

Once the law is in place, it will be important for employers to review their handbooks and policies to explain what notice employees need to give and how they can get access to such leave.

The Neonatal Care (Leave & Pay) Act

The final new piece of legislation applies to parents of babies who are severely ill at birth.

These are defined as babies admitted into hospital aged 28 days or less, and stay for a continuous period of at least 7 days. This will normally apply to most premature babies, but also others born who are then discovered to have serious health conditions.

Parents will have a right to a maximum of 12 weeks leave. This has to be taken in one block at the end of maternity/paternity leave, though we do not yet know how this will work with shared parental leave.

Again, the right to take the neonatal leave will be a day one right, available from day one of employment. However, pay is a different matter – statutory neonatal pay will be subject to 26 weeks’ service, with employees earning above the lower earnings limit (currently £123 per week).

Though it says that notice will need to be given, common sense says that there will be times when this is not possible, when leave has to be taken soon after the hospital admission. Normally, one week’s notice will be needed where leave begins sometime after the baby has been admitted.

The Next Stage

Detailed regulations for each of these new laws now needs to be announced.  And we do not expect that to happen in 2023.

As soon as they are, we will update everyone again, as these are significant changes. Not only will employers need to understand them, they will need to make sure the staff do too.  The problem is that often the guidance on how these new laws are intended to work is often not published until very close to, if not the day before, the law comes into force.  There will, however, be plenty of coverage of what is likely to be involved nearer the time.

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

Just as the Government appears to be coming to a new agreement with the EU over the Northern Ireland protocol, focus is now shifting onto the so-called “bonfire of EU laws” that the Government is proposing by the end of this year.

And, in particular, what effect this will have on Health and Safety Law, as much of our current regulations are based on EU law, and there is simply no time to enact new laws to cover the current very detailed provisions provided by Europe.

Employers, however, should not think that Health and Safety Law will simply cease to exist by the end of this year. Many experts predict that, in the absence of any new regulations, that current EU law will move to the status of guidance when considering the application of our own Health and Safety at Work Act, HSWA,1974.

Certainly, the Health and Safety Executive (HSE) have already indicated that there will be no difference in their approach, and they will rely on the current rules and regulations to continue to guide them in the future while expecting employers to do the same.

It might be helpful to list those areas of legislation that will be affected. Because if the Bill is adopted, then most regulations around Health and Safety will cease to be law on 31^st December 2023. This is because they are derived from EU law.

Included in this are some very crucial parts of current regulations:

• Management of Health and Safety at Work Regulations 1999 (including the legal duty to undertake ‘Risk Assessments’ and the appointment of a ‘Competent Person’ requirements)
• Workplace (Health, Safety and Welfare) Regulations 1992
• Manual Handling Operations Regulations 1992
• Health and Safety (Display Screen Equipment) Regulations 1992
• Provision and Use of Work Equipment Regulations 1998
• Personal Protective Equipment at Work Regulations 1992, amended 2022
• Not forgetting some more specialist regulations such as:
  • The Construction (Design and Management) Regulations 2015 (CDM)
  • The Work at Height Regulations 2005
  • The Control of Substances Hazardous to Health Regulations 2002
  • And for things like Asbestos handling and disposal

And, in case you were wondering whether this will undermine the HSE, their duties, as well as all of the principles of our current health and safety management requirements, are already set out in the HSW Act. And, employers will continue to be responsible for the health, safety and wellbeing (the more modern term for welfare) of employees and others affected by their operations, both acts and omissions.

Such a situation is clearly a double-edged approach. In the short term, there will be uncertainty over what the precise new requirements are.

And, there is some talk that the Lords will slow the progress of this Bill down, or the Government may decide to continue with some regulations until as late as 2026, giving much more time to adapt.

In the medium term, there will be uncertainty over how the Courts will interpret health and safety law going forwards, and in the long term, there will be the opportunity for the UK to develop its own health and safety regulations, almost certainly modelled on what we have already.

The UK already has a strong and robust health and safety record, certainly one that compares very favourably to our continental counterparts, and globally our health and safety legal standards are acknowledged to be one of the best in the world.

Like most things around Brexit, no one quite knows how everything will play out over the coming years, but one thing is certain. Organisations and employers will continue to be required to meet their legal obligations under health and safety. And, they should not change their approach any time soon.

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

A recent case about resignation is a reminder to employers that they need to act in a logical, sensible and responsible way when employees appear to indicate their intention to leave.

The employer must establish whether this is a genuine resignation, with all of the consequences that this involves, or a heat of the moment comment.

This is crucial because so long as a resignation is clear and unequivocal, it cannot be retracted later without the employer’s consent. Especially if the employer has clearly responded, acknowledging that the employee has chosen to leave.

In other words, the employee’s actions can be treated as a definitive act of leaving, so it is then up to the employer to decide whether they decide to accept, or not, the employee’s retraction.

But plenty of cases show that where it is not quite clear that someone has actually resigned, especially if there is no resignation letter, the employer will not be given the benefit of the doubt if they simply accept this as a resignation.

In Cope v Razzle Dazzle Costumes Ltd exactly this situation arose. The claimant had been with the company for over three years, and was in dispute with the employer over a disciplinary matter, and also in ill health.

As she usually did, when she was about to go away on holiday, she dropped the keys to her company vehicle into the office. As she did so, she was heard to say “I’m done” with a hand gesture that suggested that this was it, she was finished.

Without any further investigation, the Manager she saw told the company she had resigned. The company took this at face value, and despite a subsequent sick note to explain why she was not returning to the office, they refused to take her back. She did not return to work and filed a case for unfair dismissal.

The Employment Tribunal noted that the facts were disputed in the case, but felt that the employer had done nothing to establish the intentions of the employee, nor whether it was a genuine resignation. As a result, they were not entitled to rely on it, and their refusal to allow her to return amounted to unfair dismissal.

Indeed, the Employment Tribunal concluded that the employer had grasped the opportunity during a troublesome situation to rid themselves of her.

A number of cases over the years have underlined the point that the employer has a duty to establish that a resignation is genuine and intended. It is such a big step for an employee, the employer cannot just rely on a heat of the moment comment, but must take steps to establish the truth of the matter.

And it is always sensible for the employer to allow a short cooling off period before checking in again to make sure that the employee really does tend to resign.  The same applies if the employee simply goes absent without leave, AWOL.

Another common problem arises when the employee produces a written resignation with a whole load of complaints.  The temptation, especially if they have short service, is to just accept the resignation and ignore the concerns raised.

This is when you need professional support to decide on how best to respond to the grievances contained within the resignation.  If the case is not handled properly, the employer could later find themselves facing an unexpected claim of constructive unfair dismissal and/or discrimination (which requires no service criteria).

And, with no decent written audit trail as to how the employer addressed the departing employee’s complaints, defending such claims will be harder to defend, as in the case described above.

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

After the first school strike for some time, we had a number of questions from clients regarding how employers should treat the time off some parents have taken to look after their children.

And, there has been some misreporting in the press, particularly the BBC, who stated that all employees have a right to take time off to care for children and dependants. That is not strictly true.

What they do have, in an emergency, is the right to take time off to organise care for children and dependants. Full details of Government guidance can be found at this link – Time off for family and dependants: Your rights – GOV.UK

What does this mean in practice?

Our recommended response to your employees would be “What arrangements can you make to adapt to the new circumstances?”

As mentioned, there is provision within the law for time off for dependants, that permits taking emergency unpaid time off to make alternative arrangements for the care of dependants/children.  It is not time off to actually care for them.

Many employers ask parents, in such circumstances, to take the time as holiday, unpaid leave, or make up their hours/time later. Depending on their job role and whether home working is feasible, you might agree for them to work at home on strike days.

But where this is not possible, their focus should be on making arrangements to have their children looked after, so they can get back to work.

When are the next strikes due?

• 14 February: All schools in Wales
• 28 February: North and North-West England, Yorkshire and Humber
• 1 March: East Midlands, West Midlands, and the NEU’s eastern region
• 2 March: South-East and South-West England, and London
• 15 and 16 March: All schools in England and Wales

As ever, how you treat your employees will depend on your contractual documentation, what it says in your handbook or other policies and procedures, and the culture of your organisation.

In general, when a school closes, many parents will have to make some alternative arrangements. And, this may mean they have to take time away from work. It is up to the employer to decide whether this time is paid or unpaid.

What we would say is that, if you are fair and reasonable to those employees who are also parents, they are more than likely to want to stay with you, knowing that plenty of employers are not as good.  Failing to consider peoples personal circumstances, and being unsympathetic to working parents, is not likely to encourage employees to want to stay in the medium to long term.  This, in turn, creates a higher labour turnover, more recruitment costs and training.  So, think through what the long-term implications might be of being unsupportive on teacher strike days, which are not of your employees’ making.

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

We have had a few years of workplace absences, primarily of course down to Covid 19. But as appalling weather conditions appear to be about to hit the north and east of the UK, employers are asking exactly what they can or cannot do to make sure their organisations continue as normal. And, what they can and cannot insist their employees do in the face of adverse weather.

Until the start of the pandemic, the law was pretty clear that employers were only really responsible for their employees once they had turned up at work, prior to that in most cases, it was the employee’s responsibility to get there.

Certainly, with widespread infections and the threat of contagion on public transport, that debate has moved on a little since March 2020. However, we suspect that the principles for bad weather remain the same as before.

The good news for many employers is that they have been used to having a workforce who can work from home; bad weather does not change that. But, for those employees who continue to be required in the workplace, what is the situation?

The general principle has always been that employees are entitled to be paid when they turn up to work. So generally, if an employee cannot make it to work due to bad weather, their employer is not obliged to pay them. Traditionally, days lost to adverse weather can be deemed to be classed as Time Off In Lieu (known as TOIL) or unpaid leave by the employer.

Whether that is a policy that will endear you to your employees, however, remains a moot point. For these situations where employees cannot or will not get into work, there are a number of things you could do.

• Agree with your staff that they should take the days as holiday. This stops them having to struggle to work in really adverse weather conditions, and means it does not cost the organisation anything.
• Employees can agree to make up the hours once the weather has improved. Obviously, in the case of prolonged bad weather, this may become impracticable, but for a day or so it may be a sensible solution.
• You could reallocate work to those individuals who normally do not work from home to carry out some tasks that need doing, clearing up your database, or other administrative tasks that can be done from home.
• For organisations that have more than one location, you could close a particularly badly affected workplace and send them to other locations.
• Or, you could throw your hands in the air and decide that work is simply not possible today, we will reconvene tomorrow when conditions have improved.

Bad weather occurs from time to time, having a consistent policy to deal with bad weather conditions and informing your employees exactly what is expected of them is important. All of our clients have such policies, usually termed Disrupted Travel Policies, that they can turn to, as can their workforce to see what the general approach should be.

It will not give an answer to every individual situation but it should give a structure that then allows Managers to make informed, sensible judgments.

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

As we start the Festive Season, and the final planning for your Christmas Party is taking place, it is worth reminding staff what is expected of them in terms of behaviour.

While things are not quite back to normal after the pandemic, and there may have to be some allowances made for the most vulnerable, Coronavirus is not an employer’s main concern now.

Even in a normal year, organisations have to lay down some ground rules, or else someone could misbehave, let themselves or the organisation down, and even lay themselves open to disciplinary action.

And, even if the pandemic feels as if it is over, you will need to do a proper risk assessment, identifying the problems, risks and the safest way to operate.

Everyone has to recognise these are still not quite normal times, and extra measures may be required:

• Anyone feeling ill should not attend
• Alcohol could be restricted or banned
• The unvaccinated could be excluded or separated

It is still work

Just because a Christmas party takes place outside of work hours, and often in rented premises, it does not mean that any misconduct falls outside of the employer’s control. In certain circumstances, even private social gatherings, if they are identifiable as members of the organisation, can fall under the employer’s rules, and the employer can even be held responsible for the (mis)conduct of their staff.

The general rule is that action can be taken against any off-duty misconduct if it is in some way damaging to the organisation’s business interests. or complaints are raised against the perceived inappropriate and/or unwelcome conduct of work colleagues (or their guests). Practically speaking, if an employer has organised a Christmas party for their employees, it is highly likely that the event will be classed as ‘work’, which means that at least a modicum of responsible behaviour will be required.

If Management are going to attend, however, it is even more legitimate to expect employees to be on their best behaviour. Such a situation means that any transgressions can be treated more harshly, simply because any inappropriate activity is likely to be more damaging to the organisation’s interests.

By far the most common misconduct issues at parties are alcohol-related. In many cases, senior Managers (and HR professionals) will simply have to accept it as highly likely that a proportion of the workforce will end up in various states of intoxication.  So, discipline employees if their drunken behaviour is damaging to business interests, whether as a result of harassment or violence to a co-worker or a third party, or even simply by harming their employer’s reputation.

If the decision is taken to dismiss an employee for drunken misconduct, it should be understood that Employment Tribunals will always evaluate the situation more critically if employers or Managers have contributed to that employee’s intoxication, either by providing them with alcohol themselves, or granting them the use of a free bar.

Aside from discriminatory exclusion, you may also need to deal with harassment issues at the party itself. It goes without saying that any entertainment that could amount to harassment by a third party (a racist comedian would be the obvious example), should not be booked.

But the danger is that the relaxed nature of an office party can also lead to actual occurrences of harassment, or even violence. When investigating complaints, drunkenness or high-spirits should never be considered a sufficient excuse for inappropriate behaviour, or as evidence that the victim of alleged harassment was a willing participant.

Such matters should always be evaluated with a sober mind in the cold light of day, to ensure that they are dealt with in a fair and reasonable manner, and in full compliance with the organisation’s internal policies and procedures.

After the party

Finally, even when the party is over, there are still some important issues to consider. In arranging the event and providing the alcohol, employers will be seen to shoulder some of the responsibility for the outcome.   Therefore, it may be prudent to arrange suitable transport in order to take home any revellers who might be the worse for wear, or just close to/over the legal driving limit. Responsible behaviour here could range from making sure everyone is aware of the telephone number of local taxi firms, up to going the whole hog and providing all staff members with transport on minibuses.

Of course, the fact that an intoxicated employee has managed to find their way home is no guarantee that they will turn up for work the next day.  As a result, employers should always clarify when staff will be expected to arrive in the office the following morning, particularly if the party is held on a weeknight. Any unauthorised absence can then be addressed using the Attendance and Sickness Absence policy.

In summary then, if an employer wants to have a stress-free Christmas party season, they might benefit from following the steps below:

• Discuss now whether staff are still keen to party, want to defer it or celebrate another way.
• Make sure you do a proper risk assessment.
• Prior to the event, make sure that everyone is aware of how they are expected to behave, and whether or not they are expected to come into work the next day.
• During the social event itself, it can help to have a responsible Manager present to monitor staff behaviour, and perhaps have an informal chat with any party-goers who might be taking things a bit far.
• At the end of the party, consider supplying or arranging transport, particularly if the organisation has been providing free alcohol.
• When it’s all over, ensure any complaints are investigated fairly and comprehensively in accordance with relevant procedures.

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

As if organisations have not got enough to worry about. Already hit by rising costs, wage inflation and talent shortages, National Grid has raised the possibility of rolling power cuts across this winter.

While they emphasize that the likelihood of this happening is low, how well are you and your staff prepared should the worst happen?

The risks clearly vary between organisations. Does everybody work centrally? Is the organisation protected from power cuts because of what they do? Or do you have a lot of homeworkers, one or two of whom could be out of action for up to 3 hours?

Like most other risks, the sooner you start preparing the better. Obviously, the organisation needs to decide on business continuity in the event of a cut, but also how do they protect their vital data, stock and their workforce? Especially as this is most likely to happen when demand for power is at its highest, and the weather is likely to be at its coldest.

To start with, consider the following questions, whether you have answers to them

• Do you have a backup generator or emergency power supplies for your main places of work?
• Can you easily divert phones? Can you do so remotely if necessary?
• How do you ensure essential equipment keeps working?
• Are staff instructed to keep their mobiles and laptops fully charged?
• Do they need backup power packs for an emergency, or is, for example, working from the car a possibility?
• Do you need to pay particular attention to data backup during power cuts?
• Do staff who need to stay connected have enough data on their company mobile phones to allow them to access the Internet?
• Can they switch to an alternative location, such as a hotel, café or a temporary office?
• Do you need to source emergency lighting, even if it is only torches and battery powered desk lamps (we do not recommend candles!)?
• What is your plan for reopening after a power cut, especially if the power comes back on after everyone has gone home?

There are probably plenty of other questions you need to consider, but putting these plans into place now, and communicating them to your staff means there is less panic and more planning if the worst-case scenario happens.

And, if you need to order the batteries, torches or emergency power packs, it might be better to do so now before the panic buying starts.

Finally, consider how this will affect your staff themselves. What is your policy if you have to close a work location? If the power cut happens during the day, with sufficient light, do you have any alternative work that people can do that does not rely on power? Perhaps that stockroom has needed clearing for years, although all this is needed repainting or for a deep cleanse of the kitchen. There are probably always useful jobs that can be done if nothing else is possible.

The Government has suggested that vital infrastructure will be protected. Does that include schools and nurseries? If not, will parents and carers suddenly have to drop everything to look after their children? What will the organisation’s policy be in that situation?

This winter promises to be challenging enough for organisations, should you be unlucky enough to be hit by a power cut make sure you are well enough prepared.

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice.