In this article...
Raj Basi reports on the latest employment law developments, including an update on ‘associative’ discrimination, news of next year’s compensation limits, and some important further guidance from the Border Authority, on TUPE and immigration checks.
As we reported in our August edition of Employment Eye, the European Court of Justice (ECJ) has ruled that non-disabled employees should benefit from protection under the Disability Discrimination Act (DDA), regardless of whether or not they are disabled themselves. This scenario is most likely to arise in the context of carers of disabled people and has been described as ‘associative discrimination’.
The Croydon Employment Tribunal which made the original reference to the ECJ has now held a Pre Hearing Review in this case, and has decided (in accordance with the decision of the ECJ) that it can read additional words into the DDA, so that the scope of the UK Act may extend to include non-disabled people. Although it would be open to other tribunals to reach a different conclusion, in practice, it is likely that other tribunals will follow suit. The Government may take the opportunity to deal with this issue by amending the DDA, possibly through the Equality Bill in 2009.
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The annual increases in Employment Tribunal awards have been announced, and the main changes will be as follows.
- Unfair dismissal: minimum basic award £4,700 (up from £4,400)
- Unfair dismissal: maximum compensatory award £66,200 (up from £63,000)
- Maximum amount of ‘a week’s pay’ £350 (up from £330)
The increases will apply where the event giving rise to the entitlement to compensation (such as an unfair dismissal) occurs on, or after, 1 February 2009.
The Office for Disability Issues is seeking the views of employers on how the Disability Discrimination Act (DDA) might be amended to reflect the House of Lords’ decision in The Mayor and Burgesses of the London Borough of Lewisham v Malcolm (reported in the July edition of Employment Eye). The current proposal is for the concept of ‘disability-related’ discrimination (which has become more difficult to establish following the decision in Malcolm) to be replaced by the concept of ‘indirect discrimination’, as found in other strands of discrimination law. The consultation documents can be accessed here and the consultation will close on 6 January 2008.
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Two important questions have been clarified recently by the UK Border Agency (UKBA) in respect of employers’ obligations to prevent illegal working, in the context of a TUPE transfer.
Since the introduction of new employee identification requirements, in February 2008, there has been some confusion surrounding the checks that employers are required to undertake following a TUPE transfer. The UKBA’s guidance requires employers to re-check employees’ eligibility to work in the UK, within 28 days of a TUPE transfer. However, employers pointed out that this was an onerous requirement, which also conflicted with provision in the Regulations for transferees to be able to rely on anything done (or not done) by the transferor employer, i.e. employers should be able to rely on checks undertaken by the transferor employer.
The UKBA had said that it would amend its guidance to deal with this issue. It has not done so to date, but we understand that the current advice from the UKBA is that, until further notice, employers should not be concerned with the ‘grace period’ of 28 days to make checks, as stated in the guidance. Therefore, employers do not need to make individual document checks on employees, as long they can demonstrate that staff were acquired as part of a TUPE transfer. That said, the up to date position should always be checked with the UKBA’s Employer Helpline (0845 010 6677).
Secondly, the UKBA has, this month, updated its guidance in relation to TUPE and the transfer of migrant workers sponsored under the new points-based immigration system. Under the new scheme, in order to work in the UK lawfully, migrants must obtain a minimum number of ‘points’ and be employed by an employer which has obtained a sponsorship licence. On a TUPE transfer, migrant employees may transfer from a licensed sponsor employer to a non-licensed employer. The updated guidance sets out that, in these circumstances, the existing sponsor must tell the UKBA about the transfer, and the transferee organisation must apply for a sponsorship licence, within 28 days. If the new organisation does not do so, then permission for all sponsored migrants to remain in the UK is likely to be reduced to 60 calendar days to allow them time to find a new sponsor. Where employees are transferred from one licensed sponsor to another licensed sponsor, then both organisations must tell the UKBA about the transfer within 28 calendar days.
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