The Parental Bereavement Law

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Category: HR Alerts

The Parental Bereavement (Leave and Pay) Act 2018 was granted Royal Assent on 13 September 2018, having started out in July 2017 as a Private Member’s Bill subsequently supported by the Government. The Act introduces a new statutory right to a period of paid leave in the event of the death of a child. It is believed that this affects about 8,000 parents a year.

The Act will offer, as a day one right, two weeks’ bereavement leave (unpaid) to any employed parent who loses a child under the age of 18, or who suffers a stillbirth after 24 weeks of pregnancy. Further, employees will be eligible for statutory bereavement pay if they meet certain criteria, including that they have been employed for at least 26 weeks, ending in the week of the child’s death, and have given the correct notice. It is designed to go some way to help ease the pressure on parents grieving a child.

Bereavement leave will have to be taken within 56 days of the child’s death and parents who have lost more than one child will be entitled to take leave in respect of each child.

There will be a further consultation on the practicalities of taking the leave, to be detailed in separate regulations in due course, setting out how parental bereavement leave and pay will be taken, and the eligibility criteria. This will include details of notice requirements, whether leave can be taken in separate blocks, and, whether employees who are not the biological parent of a child (but who have been significantly involved in caring for the child, such as step-parents) will also qualify for leave and pay. We expect that the criteria will in some way reference the employee’s care of the child before the child’s death.

Peter Stanway, our BackupHR™ legal expert comments:

The rights provided by the Act are expected to come into force in 2020, on a date yet to be determined but probably early April.

Under current legislation, employees only have the right to take a reasonable amount of unpaid time off work to make arrangements following the death of a dependant. However, the cases on this limit the amount of time off to one or two days at most, save in exceptional circumstances. The change in law is therefore the first time in the UK that specific bereavement leave has been made both a legal right for up to two weeks and paid, albeit this is very unlikely to mean full pay.

Actions:

  • If you already have a policy we recommend that you follow your usual absence policies.
  • You may wish to review it in the light of the Acas guide to managing bereavement in the workplace
  • After the Regulations have been published, employers should review any existing policy or put one in place.
  • Ensure that managers are trained on the new law.

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 us for a free initial chat on 01480 677980.

The Supreme Court has recently given its judgement in the case of Pimlico Plumbers Ltd v Smith. This is an important judgement in determining whether or not persons described as “independent contractors” are in fact in law “workers”, thus enabling them to bring claims for holiday pay, unlawful deduction of wages and discrimination claims. Mr Smith was engaged by Pimlico Plumbers for over five years. His contract stated that he was an independent contractor, that he was in business on his own account, that he was under no obligation to accept work and that the company was under no obligation to offer him work. The contract stated that he would not be paid if a customer failed to pay for the job and he was responsible for ensuring that liability insurance was in place. He was registered for VAT, submitted invoices to Pimlico Plumbers and filed his own tax returns as a self-employed person.

The Court decided that the plumber in question was so much an integral part of Pimlico’s operations and was subordinate to it, that he fell within the definition of a “worker”. Even though the Claimant was allowed to accept work outside Pimlico, there were also features of the contract which strongly militated against recognition of Pimlico as a client or customer of the Claimant. Although he could provide a substitute for his work, the substitute could only come from their list of plumbers.

Other important factors were that he:

  • Wore a Pimlico uniform and had to be clean and smart at all times.
  • Drove a Pimlico van.
  • Carried a Pimlico identification card.
  • Agreed to a suite of covenants restricting his working activities after termination.

The subordinate position of Mr Smith to Pimlico was a key indicator that they were not a client of a business run by Mr Smith, but that he was really their worker.

Peter Stanway, our BackupHR™ legal expert comments:

The case sends out a clear warning to all businesses that although an individual may be described as an “independent contractor” they are in fact in law a “worker” and therefore have entitlement to a range of ‘employment’ rights. The ruling is in line with what was expected and with other recent high-profile employment tribunal gig economy cases, such as the Uber decision.

In every case like this, courts will have to grapple with the facts of the particular case; considering whether personal service is required, if there is a genuine right to provide a substitute and looking at questions of control, risk and subordination. This analysis will go beyond the terms of the written documentation. What has emerged from the recent line of cases is that where a business seeks to exercise a significant amount of control over how and by whom the work is done, integrates the individual into its own business, and dictates terms which put them in a subordinate position, they are likely to be found to be a worker (if not an employee).

It remains to be seen whether the Government will take action to help provide more clarity to businesses and their workforces. Whilst they may try to legislate in this area in an attempt to make it clearer how to decide whether an individual is an employee, worker or self-employed, there will always be an element of interpretation and the outcome will turn on the specific facts of the working relationship. This means that this area is likely to continue to cause confusion and uncertainty.

The publicity surrounding the decision is likely to lead to future challenges by ostensibly self employed individuals looking to unpick those arrangements in the event of a dispute.

Actions:

  • Be aware of the possibility that so-called contractors may be found to be employees or workers in a tax or employment tribunal.
  • There are consequent risks of employment law claims or demands for PAYE and NICs arrears.
  • It is not good enough just to have a cleverly worded contract, the reality must match the wording.

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 us for a free initial chat on 01480 677980.

 

The symptoms of it can be – in certain circumstances – according to a recent Glasgow employment tribunal.

Ms Davies, a court officer for the Scottish Courts and Tribunal Service (SCTS), had been suffering from extensive medical problems related to the menopause. She was prescribed medication which required to be dissolved in water. On one occasion, after returning to the court, she noticed that a water jug on her table had been emptied. She could not remember if this contained her medication, and became concerned that two male colleagues were drinking her water so she informed the men of this; one of whom “launched into a rant” as a result.

A health and safety investigation was launched and it was later determined that the water didn’t contain the medication. Nevertheless, Ms Davies was dismissed for gross misconduct as a result of this incident, the SCTS stating that she knowingly misled the two men and had failed to follow their “values and behaviours”!

The tribunal found that she had been unfairly dismissed, and her dismissal was because of something arising in consequence of her disability. She was awarded £19,000, £5,000 of which was for injury to feelings for disability discrimination, and was also given her job back (which is very unusual but appropriate in this case).

Peter Stanway, our BackupHR™ legal expert comments:

It is important to note that this case does not confirm that menopause will automatically be classed as a disability; it depends on how it affects the individual woman at that stage in her life. Therefore, this type of condition will be judged by the effect of the individual’s symptoms. We were predicting three years ago that the menopause may well be classified as a disability, and this decision confirms our thoughts. We are aware that it is only a tribunal decision and has no legal weight, but would expect other tribunals to come to the same conclusions depending on the symptoms and facts. The menopause does not of itself amount to a disability, but the physiological or physical consequences of going through it can do for those women who suffer significant health problem as a consequence. To meet the definition in the Equality Act, the symptoms must have a ‘substantial and long-term adverse effect on the ability to carry out normal day-to-day activities’.

What does this mean for employers?

Before making a decision with regards to an individual’s employment, it is important to take all aspects of the individual’s current state into account. It is clear that Ms Davies was suffering from severe symptoms of menopause and this should have been taken into account by SCTS, before dismissing her for gross misconduct.

Outside of a disciplinary scenario; employers should take reasonable steps to support affected employees in coping with their condition.

Building awareness of the condition, considering practices and creating healthy environments for workers can only be a plus point. The menopause should be on employers’ agendas in order to make the workplace a safe and understanding space for the women going through this phase of life. Whilst many women will have only minor discomfort in some cases reasonable adjustments are necessary which need not be costly or complicated. Employers can help by communicating to their workforce that health-related problems such as the menopause are ‘normal’.

Possible actions:

There are no universal easy solutions but some simple cheap actions may help:

  • increased flexibility of working hours and working arrangements
  • relocation of desks closer to opening windows and or control over heating
  • plentiful supplies of cold water; and more frequent toilet breaks
  • rethinking of uniforms specifically avoiding nylon
  • good and honest communication between the manager and the employee

Improvements in workplace arrangements should therefore become accepted and normal.

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 us for a free initial chat on 01480 677980.

 

Mr Afzal was a trainee manager for a fast food company and had the right to work in the UK but had failed to produce evidence before the end of his limited leave to remain (which gave him the right to work) in August 2016. On the day that his leave would have expired, Mr Afzal sent an email to his employer with evidence of his application to the Home Office. That application automatically extended his right to work. The attachments with the evidence could not be opened and the Respondent dismissed to avoid civil and criminal penalties under the Immigration, Asylum and Nationality Act 2006. In the dismissal letter, East London Pizza failed to offer the right to an appeal. They also argued in the tribunal that there was “nothing to appeal against”; new evidence would not have undermined the reasonableness of the Respondent’s belief at the time of dismissal.

The Employment Appeal Tribunal rejected that argument which had succeeded at Tribunal. The Judge said that while the employer was justified in urgently dismissing the employee when it did, since it had a genuine belief that his employment was by then illegal, if evidence had been produced upon appeal, that the employee was entitled to work at all material times, the employer could immediately have rescinded the dismissal without fear of prosecution or penalty. He decided that production of the evidence of right to work could have happened during an appeal process and the contract could have been revived “without fear of prosecution or penalty”. Affording an appeal allows matters of this kind to be considered again ‘rather more calmly than can be done as the time limit expires’ holding that the whole of the process, including an appeal, was relevant to the question of fairness.

Peter Stanway, our BackupHR™ legal expert comments:

Allowing a right of appeal in right to work cases is always good employment relations practice, even where immigration compliance is at stake. If an appeal had been offered, there were various ways in which he could have established his right to work. He could have provided documents demonstrating the in-time application. They might have obtained the relevant number from him and then made its own enquiry of the Employment Checking Service. Had his right to work been established, there was no reason why he should not have been reinstated. As the judge said “The appeal process affords an opportunity for this kind of case, which can result in real feelings of injustice, to be looked at again.”

  • Employees should always be notified of the right of appeal when they are informed of a disciplinary or dismissal decision, no matter how long or short their length of service is.
  • The appeal should be heard irrespective of the seriousness of the offence or the circumstances.
  • The Employee has the right to be accompanied at any appeal with either a (current or former) work colleague, or, accredited trade union representative.
  • Appeals should be dealt with as speedily as is practicable and wherever possible, heard by a manager who is more senior than the person who took the disciplinary/dismissal action.
  • The employee, or their representative, should have an opportunity to comment on any new evidence arising during the appeal before any decision is taken. They can also comment on whether the original disciplinary/dismissal process and decision, including any investigation, was fair and proportionate.

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 us for a free initial chat on 01480 677980.

 

Striking a balance between the privacy rights of staff suspected of wrong-doing and your right as an employer to protect your business interests and property is a difficult task.

The recent European case of Ribalda v Spain helps to put this in context. A family owned supermarket was experiencing major stock losses. As it was unclear whether this was as a result of internal or external activities the employer decided to install video surveillance equipment to determine the root cause of the problem. They deployed a two prong approach by installing visible and hidden cameras. The purpose of the hidden cameras was to catch any internal thefts by the cashiers. The covert cameras were ‘successful’ and the employer dismissed five employees. They all admitted to the thefts in the presence of their union representative.

All five brought claims in the Spanish Employment Tribunal arguing that their dismissals had been unfair as they had not been told of the hidden cameras, and that their employer’s failure to do so breached Spanish data protection laws, which require data subjects to be “previously and explicitly, precisely and unambiguously informed” about the processing of their personal data. The Spanish courts were of the view that the covert CCTV surveillance had been justified, since there was a reasonable suspicion of theft, appropriate to the employer’s legitimate aim of protecting company property, and was necessary and proportionate.

Nevertheless, the claims found their way to the European Court of Human Rights. The claimants argued that the use of covert CCTV was an infringement of their Article 8 rights. The court found that a worker should have an expectation of privacy which must be rebutted before any covert monitoring becomes appropriate. The court took account of the following:

  • the fact that several people had seen the footage prior to the claimants, including their union representative and the employer’s lawyer;
  • the workers had not been told of, or consented to the covert surveillance;
  • the footage had been taken over a number of weeks, at all hours and had caught images of other workers who were not guilty of theft.

The court concluded that the employer’s measures were not proportionate and they were awarded 4,000 euros.

Peter Stanway, our BackupHR™ legal expert comments:

Guidance from the Information Commissioner’s Office (ICO) confirms that the use of covert CCTV should not be undertaken unless:

  • it has been authorised at the highest level within an employer’s business
  • there are sufficient grounds for suspecting criminal activity or equivalent;
  • telling the workforce would hinder the prevention or detection of crime
  • it is used as part of a specific investigation only and not continuing.

Under GDPR, data protection impact assessments will be mandatory prior to an organisation undertaking any process which presents a potentially high risk to an individual’s privacy rights, addressing the following questions:

  • can a limited, or a time-restricted, operation be used?
  • does the workforce already know of the possibility that covert CCTV surveillance may be used in exceptional cases?

There is no set method of presentation for a data protection impact assessment, under GDPR but the minimum features of such an assessment should include:

  1. A description of the envisaged processing operations and its purpose.
  2. An assessment of the necessity and proportionality of the monitoring.
  3. Evaluating the risks to the privacy rights of the individual(s) affected.
  4. The measures envisaged to address the risks and demonstrate the safeguards, and/or security measures that need to be put into place.

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 us for a free initial chat on 01480 677980.

 

Organisations in the UK are facing pressure to not merely abstain from crime, but to actively prevent their staff committing it. Where once employers would not be culpable for the misbehaviour of staff, they are now being asked to have adequate measures in place to stop bribery, or face punishment.

Section 7 of the Bribery Act 2010 created a new form of corporate liability for failing to prevent bribery on behalf of a commercial organisation. We have now seen what such a prosecution looks like when it gets to court, and shows how seriously prosecutors are taking compliance.

The first contested section 7 prosecution led to a guilty verdict for Skansen Interiors Limited (SIL), a refurbishment contractor. Many criticised the Crown Prosecution Service’s (CPS’s) decision to prosecute a small, dormant company for failure to prevent bribery. The CPS clearly wanted to send a message. Unfortunately, this may have left more questions than answers, and little guidance on when a company’s procedures will be considered ‘adequate’ to sustain a defence.

The CPS alleged that SIL’s former Managing Director, Stephen Banks, bribed the project manager of a real estate company, Graham Deakin, to help secure a tender for office refurbishment contracts worth £6 million. After winning the tender, Banks circumvented financial controls in place at SIL to effect and conceal two payments to Deakin totalling £10,000. A third payment of £29,000 was offered, but discovered to be part of the bribery scheme by the CEO of SIL’s parent Skansen Group.

After concluding its internal investigation, the Group dismissed Banks and its commercial director, reporting its findings to the National Crime Agency and the City of London Police for further investigation. The company gave extensive assistance to the police, including handing over legally privileged material.

SIL provided the CPS with a fairly clear cut example of a company that did not have sufficient controls in place. At the time of the bribery, it did not have a dedicated anti-bribery and corruption policy and attempted to rely on non-specific policies that referenced the need for dealing with third-parties honestly. The firm argued that it was common sense to not pay bribes and therefore no specific policy to that effect was required. SIL also did not have a compliance officer and could not point to any employee designated to take on the responsibility for anti-bribery compliance. They could not show that any training had been conducted or that its employees had read the policies or agreed to comply with them.

SIL had a difficult time providing records showing any anti-bribery and corruption culture at the company, and could not show that any response had been taken after the Bribery Act came into effect in 2010. Banks and Deakin were sent to prison.

Peter Stanway, our BackupHR™ legal expert comments:

Because it was a trial by jury, it is not clear which of these omissions were felt to make SIL’s compliance programme so inadequate that it could not avail itself of the defence. Many would argue that a business with only 30 employees did not need a compliance officer. Even so, companies should take this opportunity to reassess their own compliance programmes in light of the limited insight that can be gained from the prosecution’s submissions in the matter.

Any company seeking to comply with the Bribery Act should:

  • have a business specific code of conduct/policy,
  • ensure that all staff are aware of the terms of the anti-bribery policy and show they have received training on it.
  • establish reporting lines that ensure staff feel able to report concerns.
  • show that it had responded to the Bribery Act by appointing a member of senior management to take responsibility for the company’s initiatives.

It is not enough to have a generic anti-bribery policy. Once a policy is in place, steps must be taken to comply with it. A record of those steps should be kept.

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 us for a free initial chat on 01480 677980.

 

On the 8th of March the Government released its latest list of businesses who failed to pay the National Minimum Wage. A number of high profile businesses were listed. Some of these businesses probably intended to pay the national minimum wage, but were caught out by complexities in the legislation, as the examples below illustrate.

St Helens Rugby League Club explained their underpayment as mostly relating to a misunderstanding regarding training casual staff. The club had not realised that match day stewards needed to be paid for a two hour training session at the start of each season. The requirement to pay for training is however clearly set out in the Act and, even for casual staff; these hours need to be paid. This is even the case if training is provided to a large group of potential stewards at the start of the year, some of whom do not go on to work at matches or events.

Stoke City Football Club explained that their issue related to deductions from employees pay for items purchased from the club. Had the staff simply paid cash for these tickets and merchandise there would have been no issue but, as a deduction had been made directly from the employees’ pay for these items, the deduction was counted for the purposes of national minimum wage calculation. Although allowing such deductions may appear convenient, it can give rise to the issue Stoke City experienced and the club has confirmed that it has now stopped this practice.

Restaurant chains Wagamama and TGI Fridays were examples of employers who blamed uniform issues. Wagamama has repaid an average of £50 to 2,630 employees. TGI Friday’s had to repay £25 each to 2,300 staff. They both fell foul because their staff had to buy specific items of clothing (e.g. casual black trousers) to wear to work with a branded top which they supplied. As they were not reimbursed for these items, this effectively meant a deduction to pay, meaning some employees had not received the national minimum wage. Even if the items can be used by the employees outside of work, the fact that they have to be purchased for work is sufficient for national minimum wage purposes.

Peter Stanway, our BackupHR™ legal expert comments:

As rates increased on 1 April 2018, the above examples present cautionary tales and demonstrate that minimum wage compliance cannot be taken for granted by simply paying an hourly rate that is at least the required amount. The Government’s powers of enforcement allow compliance officers to commence an investigation and remove information from an employer’s premises with little, if any, warning and conduct a very thorough analysis of records. There is also a potential negative PR effect of non-compliance (in addition to the fines and potentially criminal liability).

The complexity of the national minimum wage and the way HMRC determines working time, means that some employers can make ‘genuine mistakes’.

Action

  • Pay for training sessions which are required as part of the job
  • Be very careful about staff purchasing schemes
  • Ensure all working time is recorded and paid
  • Do not make deductions that take wages below the NMW threshold
  • Review your uniform policy and consider paying a uniform supplement
  • Conduct reviews of systems and working practices, to identify exposure

Employers need to look at remuneration as a whole, not just the hourly rate they pay their staff, if they are to avoid the ‘list of shame’.

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 us for a free initial chat on 01480 677980.

The Government has issued a press release setting out its ‘Good Work plan’ in response to last year’s Taylor Review on what impact modern working practices are having on the world of work. Four consultations are planned but there will be no immediate changes to the law.

Peter Stanway, our BackupHR™ legal expert comments:

The Government is however proposing to make some changes without giving further details or proposed timescales. A number of the measures envisage improved guidance rather than changing legislation.

  • Help enforce vulnerable workers’ holiday and sick pay (addressing the current uncertainty for gig economy workers);
  • Introduce day-one rights such as holiday and sick pay entitlements and a new right to a payslip for all workers, including casual and zero-hour workers;
  • Provide all agency workers with a clear breakdown of who pays them, and any costs or charges deducted from their wages;
  • Consider a higher minimum wage rates for workers on zero-hour contracts.
  • Consult on repealing laws allowing agencies to employ workers on lower rates than permanent employees (the so-called Swedish derogation).
  • A right for all workers, not just zero-hour and agency, to request a ‘more stable contract’;
  • Taking further action to ensure unpaid interns are not doing the job of a worker;
  • Define ‘working time’ for flexible workers who find jobs through apps or online so they know when they should be being paid;
  • Launch a task force with business to promote awareness and take-up of the right to request flexible working;
  • Ensure new and expectant mothers know their rights (as well as employers);
  • Launch a new campaign to encourage more working parents to share childcare through shared parental leave;
  • Introduce a new naming and shaming scheme for employers who fail to pay employment tribunal awards; and
  • Increase employment tribunal fines for employers showing malice, spite or gross oversight to £20,000 and consider increasing penalties for employers who have previously lost similar cases.

As for the consultations, the four topics to be covered are the rather trickier issues of enforcement of employment rights; agency workers recommendations; measures to increase transparency in the UK labour market; and employment status.

The Taylor Review ran to over 100 pages with recommendations on a wide range of topics. The press release states that all but one of Matthew Taylor’s 53 recommendations will be “acted on” but note the language, “acted upon” is not the same as “accepted”. The only one which is not being taken forward in some way is the proposal to equalise national insurance for employees and the self-employed. The Government states that it is committed to reforming employment law and practices to keep pace with modern ways of working. However, we are still not much further forward in knowing how and when this will happen in practice.

Much of the Good Work Plan is either a call for further consultation at this stage or agreeing to look at possible future reforms and guidance. Setting employment status to one side for the moment, changes, such as lengthening the reference period for holiday pay calculations and extending the period counted as a break in continuous service beyond one week, may have significant impact. Reviewing legislation relating to protection against redundancy for pregnant employees and those on maternity leave is another area of potentially significant impact.

So if all this is just proposals what if anything should you be doing now?

  • Review the employment status of contractors and casual/zero hour people
  • Make sure you advise pregnant women of their rights (in a Handbook)
  • Follow the proper procedure for flexible working requests
  • If you engage interns on an unpaid basis, start paying them if you are asking them to undertake useful work, core to what you do.

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 us for a free initial chat on 01480 677980.

The Equality Act 2010 describes a disabled person as someone who has a physical or mental impairment that has a substantial and long-term adverse impact on their ability to carry out normal day-to-day activities. This wide definition captures a number of individuals with disabilities, which are not immediately obvious.

The Equality Act requires an employer:

  • Not to treat applicants or employees with disabilities less favourably because of the disability;
  • Not to unjustifiably treat those with disabilities unfavourably for reasons arising from the disability;
  • Not to subject those employees to indirect discrimination, harassment or victimisation.
  • To make reasonable adjustments to accommodate the condition so as to minimise any disadvantage.

The Equality Act provides that an employer is not liable for disability discrimination if (1) it did not know or (2) could not reasonably have been expected to know about a person’s disability. The law is complicated and evolving but it is best to stick to this perspective.

Many of the conditions that would cause an employee to be considered disabled within the meaning of the Equality Act can be described as hidden or invisible. Typical examples would be dyslexia, depression and diabetes.

Peter Stanway, our BackupHR™ legal expert comments:

While it is tempting for employers to think that avoiding any knowledge of any condition(s) is the best way to avoid liability, case law has shown that the ostrich approach does not work. The key problem is that of constructive knowledge i.e. could/should the employer have known that the employee suffers from a particular condition from the information that they have, normally due to absences and behaviour.

The Equalities and Human Right Commission provide a Code of Practice, on what should be regarded as reasonable knowledge of a condition. The Code states that ‘an employer must do all they can reasonably be expected to do to find out if a worker has a disability’ specifically targeting the “ostrich approach”. The EHRC suggests that employers should explore the reasons for a performance reduction of a previously good employee, including asking reasonable questions regarding their health/wellbeing. Tell tale signs may appear which suggest that an employee’s health is impacting their work. Each case is fact specific, but this can include a dip in performance, absences and concerns raised by colleagues about their behaviour. Many employers rush to take action to improve the performance without first trying to understand the underlying cause. By starting a performance improvement process they could unwittingly subject the employee to an act of discrimination.

Good/wise employers will therefore maintain an open dialogue with their employees and will regularly monitor and review employee performance. The workplace culture should encourage an open dialogue about wellbeing and employers should take steps to reduce stereotyping, particularly surrounding mental health conditions.

Employers should not be afraid to start a conversation about health and wellbeing, although conducting such conversations sensitively will be crucial to a positive outcome. Employers would be well advised to explain the concerns about the employee’s behaviour before asking the employee if there are any circumstances that might be causing the problems at work.

Action

  • Write to new employees to ask if reasonable adjustments are required to enable them to perform the role. They are not obliged to disclose conditions.
  • It will often be wise to obtain an Occupational Health report.
  • The onus is on the employer is to take reasonable steps to try and ascertain if the individual has a disability where this is not clear.
  • You need not have taken every step possible to discover an employee’s disability. It is your actions as a whole that matter.

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 us for a free initial chat on 01480 677980.

On 8 December 2017, an ‘agreement in principle’ was reached between the UK and the EU on the future rights of EU citizens currently living lawfully in the UK. This means that these individuals will be able to stay in the UK and enjoy broadly the same rights and benefits as they do now. This agreement applies equally to UK citizens currently living in the EU. However, a word of caution – this agreement is subject to the important caveat that ‘nothing is agreed until everything is agreed’. The Government maintains that EU citizens do not need to take any steps at this stage to establish immigration status.

Employers and their representative bodies have repeatedly expressed concerns that they were losing valuable workers, or struggling to recruit the skilled workers they need from other EU member states, because of the uncertainty these people feel after the EU referendum. The Home Secretary, Amber Rudd, has now written an open letter to EU citizens in the UK reassuring them that the rights they and their families currently have will remain broadly the same.

The Home Secretary acknowledged that EU citizens have had “an anxious wait while the fine details were ironed out” but has now emphasised that they will continue to have access to healthcare and benefits and their pensions will be protected. Their existing close family members living outside the UK will retain the right to join them in the future. She also promised that the newly designed digital system through which EU citizens will be able to get their new status will minimise bureaucratic hurdles, and applications will cost no more than the fee a British person pays for a passport. Anyone who already has valid permanent residence documentation will not be charged.

“You do not need to do anything just yet,” the Home Secretary concluded. “You will see more detail about the settled status scheme from us … and we expect applications will open during the second half of 2018.”

Key aspects of the agreement:

The key date for establishing rights will be 29 March 2019. EU citizens who legally reside in the UK before 29 March 2019 will be able to stay in the UK, and close family members will be able to join them after the UK has left the EU (where that relationship existed before, and continues after that date). These family members include spouses, unmarried partners, children, grandchildren, dependent parents and grandparents.

Individuals already holding a permanent residence document on 29 March 2019 will have that document converted into a new document free of charge, subject only to verification of identity, no criminality and security checks and confirmation of ongoing residence. Individuals who have acquired permanent residence rights can leave the UK for up to 5 consecutive years without losing their residence rights.

Peter Stanway, our BackupHR™ legal expert comments:

The implementation and application of citizens’ rights will be monitored in the UK by an independent national authority. Administrative procedures for applications for status will be transparent, smooth and streamlined. In particular, the UK will not be able to require anything more than is strictly necessary and proportionate to determine status. Application forms will be short, simple and user friendly, and a proportionate approach will be taken to those who miss a deadline for application where there is a good reason. A period of at least 2 years will be allowed to submit status applications.

Individuals can be kept up to date via the website Status of EU citizens in the UK: What you need to know, which includes case studies to help individuals determine their status rights.

Actions

  • Speak to your EU citizen workers to reassure them
  • Point them in the direction of the website
  • Monitor dates to remind them when action is needed and help if necessary

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 us for a free initial chat on 01480 677980.