Transcript UK Business Immigration

WHAT EVERY EMPLOYER
NEEDS TO KNOW
Breakfast Seminar
29 April 2010
UK Business Immigration
• The Points-Based
System
• Practical Issues and
Tips for Employers
The Points-Based System
5 Tiers:
Tier 1 – Highly skilled
workers
Tier 2 – Sponsored skilled workers
with a job offer
Tier 3 – Low skilled workers
(currently suspended)
Tier 4 – Students
Tier 5 – Temporary workers
and youth mobility
Tier 1
No specific job offer required
• General
• Entrepreneur
• Investor
Points requirements
• 75 for attributes:
qualifications, past earnings,
UK experience, age
• 10 for English language
• 10 for available maintenance
funds
Since 6 April 2010:
• Points for Bachelor degrees
• Full attributes points for salary
of £150,000 or more
Tier 2
• General
• Intra-Company Transfer
• Sports People
• Minister of Religion
Points requirements
• 50 for attributes:
qualifications, prospective
earnings, Intra-Company
Transfer
• 10 for English Language
• 10 for available
maintenance funds
Intra Company Transfer
Since 6 April 2010:
• New sub-categories
• Minimum prior
experience raised
from 6 to 12 months
• No longer a route to
settlement in the UK
Sponsorship
• Online application and
investigation
• Key roles:
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Authorising officer
Key contact
Level 1 user
Level 2 user
• ‘A’ or ‘B’ Rating
• Certificates of sponsorship
• Sponsor Duties – General
and specific
e.g. Resident Labour Market
Test
Entry Clearance
Consequences of Breach
»Suspension
»Downgrading
»Revocation of licence
Example reasons for enforcement activity:
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Branches not covered by licence
Sponsored workers move to new location
Change in key personnel not reported
Non-compliant RMLT
Not linked for ICT purposes
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Civil and criminal penalties, warnings, fines.
Deportation and ban from re-entering the UK.
PRACTICAL ISSUES
1. Should the company become a
registered sponsor?
2. Are your internal records up to date?
3. Are you up to date with current
immigration rules?
4. What is best for the employee?
5. Do you have long term immigration
strategies in place?
And finally…
Employment law vs Immigration rules
• Race discrimination
• Unfair dismissal
The future…?
The Recruitment Process
• How to avoid potential discrimination
claims
• Restrictive Covenants – taking on key
staff: how to manage the risks
Anna Birtwistle
Recruitment and
discrimination
• Job applicants can bring claims for:
– Discrimination in the arrangements made for
recruitment
– Discrimination by the employer in the terms of the
employment offered;
– Discrimination as a result of a refusal or a deliberate
failure to offer employment;
– Harassment
• Protected grounds: sex, race (to include colour,
nationality, ethnic or national origin), disability, age,
religion or belief, sexual orientation, gender
reassignment, marital or civil partner status.
Recruitment and
discrimination
• What we are talking about today:
– Advertisements
– Interview process
– Selection process
• Remember importance of:
– Equal Opportunities Policy
– Recruitment Policy
Advertisements
What not to do…
Discriminatory advertisements
Sex, Race, Disability
• Unlawful
to
publish
advertisements which could
reasonably be interpreted as
indicating an intention to
commit an unlawful act of
discrimination on grounds of:
– Sex (section 38 of SDA)
– Race (section 29 RRA)
– Disability (section 16B of
DDA)
• ECHR
power
to
seek
declaration and injunction
Age, Religion or Belief, Sexual
Orientation
• Law does not expressly
prevent discriminatory
advertisements on grounds of
Age, Religion or Belief and
Sexual Orientation
• Note, however, that
discriminatory advertisements
on these protected grounds
can still use as evidence of the
employer’s intention to
discriminate during the
recruitment and selection
process
Advertisements
• Written job descriptions and person
specifications
• Content
– Real requirements of the role
– Language
– Statement that company is an equal opportunities
employer
• Consider the medium of advertising
– Internet
– Trade publications/press
– Word of mouth
Genuine occupational
requirements / qualifications
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•
An employer can discriminate in
relation to recruitment on grounds
of race, ethnic or national origins,
religion or belief, sexual orientation
or age, if:
Specific cases
–
Sexual Orientation Regulations in relation to
employment for the purposes of an organised
religion (regulation 7(3), Sexual Orientation
Regulations).
– The discriminatory characteristic
is a genuine and determining
requirement of the job.
– It is proportionate to apply that
requirement in the particular case.
– Either the person does not meet
the requirement, or the employer
is not satisfied (on reasonable
grounds) that the person meets it.
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The Religion or Belief Regulations contain a
GOR allowing organisations with a particular
religious ethos to discriminate on grounds of
religion or belief (regulation 7(3), Religion or
Belief Regulations)
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The Race Relations Act contains a number of
job-specific GOQs, which include: drama,
entertainment
and
modelling
roles;
"authenticity" in bars and restaurants; and the
provision of personal welfare services to
persons of a particular racial group (section 5,
RRA)
If a job is being advertised where a
GOR or GOQ applies, it is best
practice to state this fact in the job
advertisement together with the
relevant statutory references
–
The Sex Discrimination Act contains a
number of job-specific GOQs, including: drama,
entertainment and modelling; work in single-sex
institutions such as hospitals or in private
homes involving intimate contact; provision of
personal welfare services; and where it is
necessary to preserve decency or privacy
(section 7, SDA)
Interview and Selection
• Interview process
– Venue
– Timing
– Written or psychometric tests
• Selection criteria
– In writing
– Objective
– Creates a “level playing field”
Interview
• Prepare interview
questions (and stick
to them!)
• Only ask questions
which relate to the
candidate’s ability to
do the job
• Same questions,
same order for each
candidate
TIP:
Avoid personal questions:
– “Are you planning on
having a family soon?”
Finally, remember
DO:
DO NOT:
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Be objective
Focus on the requirements of the role
and the qualifications necessary to do
this role
Try and involve more than one person
in the decision making process
Use standardised interview questions
Keep a paper trail, including:
– Job description
– Person specification
– Selection criteria
– Any written tests
– Notes of the short listing process
– Interview questions
– Notes of interview and any
discussions that followed
(handwritten and/or score sheets)
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Be subjective i.e. “he/she wouldn’t fit
in”
Advertise in only one
publication/medium
Use language/job titles which are
gender-specific
Use the words “young” or “mature” and
avoid buzz words such as “dynamic”,
“with it”
Stipulate number of years’ post
qualification experience unless strictly
necessary
Ask personal questions during
interview or tailor your interview to the
candidate
Restrictive Covenants
• Control of employee’s behaviour
post termination
• Public Policy – void as restraint of
trade
unless…
Exceptions
1. Legitimate business interest to
protect
2. Protection is no more than
reasonable having regard to the
parties and the public interest
(Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co.Ltd)
Types of Restrictive
Covenants
• Non-solicitation
– Customers
– Existing employees
– Non-dealing
• Non Compete
– Moving to competing business
– Setting up in completion
Enforceability
• Be specific about what
you are trying to protect,
your legitimate business
interest should be either;
– A trade connection; or
– A trade secret or other
confidential
information
• Key Issue = length of
restriction
TIPS
•
In relation to non-solicitation
clauses, limit these to customers
and colleagues that the exiting
employee has had direct contact
in the 12 months prior to
termination
•
Length of restriction should be no
longer than necessary to protect
your business
Restrictions During
Employment
• Garden Leave
– Requires employee to remain at home during notice
period
– Express clause in contract
– Is there an implied right to work?
(William Hill Organisation Ltd v Tucker)
– Typically applies during 3 – 12 months’ notice
• Post termination restrictive covenants less likely
to be enforceable
(Credit Suisse Asset Management Limited v Armstrong)
Liability For New
Employer/Recruiter
• Procuring and inducing breach of contract
– Where third party knowingly and intentionally
procures a breach of contract
• Conspiracy and/or unlawful interference with
business or breach of confidence
• Account as potential trustee
– Breach of fiduciary duty
– Liable to account for either having dishonestly
assisted the employee’s breach or knowingly in
receipt of trust property
Team Moves
• Hard to do without risk of breach and liability
• Typical issues:
– Requests to disclose confidential client/business
information to new firm
– Speaking to colleagues
– Speaking to clients
– Risk of procuring and inducing of new firm or recruiter
encourages breaches
• Springfield injunction
(UBS Wealth Management (UK) Limited v Vestra Wealth LLP [2008])
Reducing risk
• Be aware of the restrictions contained in
the candidates contract of employment
• Do not ask candidates for information
which will be deemed to be confidential
• Advise candidates to comply with their
duties and obligations
What’s new for 2010:
I. The Equality Act 2010
•
Summary and key issues
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Equality Act 2010 can be traced back to February 2005
Two main aims are to bring together existing strands of
discrimination legislation in one Act to:
1. Harmonise existing discrimination law
2. Strengthen existing discrimination law
Most employment related changes come into effect in October
2010
•
Summary of key changes
•
Tips for you as an employer
What’s new for 2010:
II. Default Retirement Age and
Age Discrimination
• Summary and key issues
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Currently employees can be mandatorily retired at 65
Challenge to DRA failed in September 2009
Government consultation on DRA ended on 1 February 2010
Government undertaking review of DRA - results were expected
in Spring 2010, don’t be surprised if results arrive in Summer
– Likely outcome of review? No one knows, but my guess is
increase in DRA to 67 or 68
• Tips for you as an employer
What’s new for 2010:
III. Religious Discrimination
• Summary and key issues
– Since December 2003, “religion” and “belief” are protected
grounds
– Busy 6 months in this area
– Ladele v London Borough of Islington (Decided: December
2009)
– Eweida v British Airways Plc (Decided: February 2010)
– Chaplin v Royal Devon and Exeter NHS Trust (Decided: April
2010)
• Tips for you as an employer
What’s new for 2010:
IV. Agency Workers
• Summary and key issues
– Typical scenario: agency worker hired by employment agency
and then contracted out to employment agency’s clients
– Fundamental changes coming into effect on 1 October 2011
– Legislation in UK based on European equal treatment legislation
– From 1 October 2011, entitled to at least same “basic” working
and employment terms and conditions if had been hired directly
by end user
– Many rights only apply after 12 week qualifying period
– Basic rights include basic pay and performance related bonus,
holiday and overtime pay, shift allowances
– Equal treatment principle does not apply to contractual notice
pay, contractual redundancy pay or occupational sick pay
amongst others
• Tips for you as an employer
What’s new for 2010:
V. Paternity Leave
• Summary and key issues
– Since 2003, eligible fathers have been entitled to up to two
consecutive weeks’ paternity leave and pay
– For babies born on or after 3 April 2011, fathers have increased
entitlements. Similar rights for couples adopting children
– Minimum period of APL 2 weeks and maximum is 26 weeks.
– Mother and father can share a total of 39 weeks’ statutory
maternity or paternity pay
– Eligibility requirements include:
 Notice requirements
 Child must be under age of one
 For father to take APL, mother must have returned to work
and not have exhausted entitlement to statutory maternity
leave
• Tips for you as an employer
What’s new for 2010:
VI. Fit Notes
• Summary and key issues
– Emphasis on what employees can do rather than what they
cannot do
– GPs given option to say employees “not fit for work” or “may be
fit for work taking account of the following advice”
– No “fit for work” option
– Beware of potential disability discrimination and effect on
insurance cover
• Tips for you as an employer
The CM Murray LLP Team
Clare Murray
Bettina Bender
Edward Wanambwa
Charis Damiano
Managing Partner
Partner
Partner
Consultant
Susanne Foster
Esther Martin
Anna Birtwistle
Associate
Associate
Associate