As rugby-fever sweeps the country, Ashley Norman reports on the following developments off the pitch: the latest immigration law news; new guidance on the rugby world cup and equalities; employment tribunal news; an update on night workers' minimum wage; public sector exit payments and seven day services in the NHS; the RCN's view on revalidation; autumn changes; an update on Fit for Work; and, finally, details of our forthcoming free training seminars.

Immigration watch

As we highlighted in our August Alert, enforcement of immigration rules is at the forefront of the government's agenda at the moment, and employers have been warned that there will be a crackdown on immigration enforcement this Autumn.  Swiftly following that announcement, the government has now published the Immigration Bill 2015-2016, which details the proposals outlined in the Queen's Speech, in respect of illegal working and protections for migrant workers.

In particular, the Bill proposes extending the existing criminal offence of knowingly employing an illegal migrant, to apply where an employer has "reasonable cause to believe" that a person is an illegal worker. The penalty for this offence will increase from two to five years. The Bill also creates a new offence of illegal working which will enable the earnings of illegal workers to be seized under the Proceeds of Crime Act 2002.

The Bill will also give the Secretary of State the power to introduce an "immigration skills charge" on certain employers who preferentially employ skilled workers from outside of the European Economic Area. The detail of this proposal has yet to be published, and will be subject to consultation – but further information is available in this factsheet.

The Bill also legislates for the government's previously announced policy that public authorities will be required to ensure that public sector workers in customer-facing roles speak fluent English. Guidance will be provided in a code of practice, which will be the subject of further consultation.

Meanwhile, it has been reported this month that the heads of 10 NHS Trusts have said that 'stringent' immigration restrictions are preventing them from meeting staffing levels required for the winter period. The NHS workforce organisation, NHS Employers, has also expressed its concerns over immigration rules, in a letter to the Home Secretary, Teresa May. NHS Employers has said that current immigration rules are compromising patient safety, cost controls and leaving shortages of nurses and doctors at a "crucial" time.

Regardless of whether further change is forthcoming, the government's current focus on immigration suggests that now is a good time to ensure that your policies, procedures and migration checks are in order. If you require assistance with audits / review of your current practice and procedure, or advice on specific issues, please do contact me, or your usual Bevan Brittan contact.  

New Acas guidance

If you are anticipating issues relating to absence or performance during the Rugby World Cup (which runs until 31 October 2015), there is a new guide published by Acas which covers issues such as workforce planning and the possibility of increased use of social media at work.  The full guide can be accessed here.

Acas has also published three new guides on equality.

  • Equality and Discrimination: understand the basics
  • Prevent Discrimination: support equality
  • Discrimination: what to do if it happens

Employment tribunal news

  • Please click here to read our bulletin on this month's developments in relation to employment tribunal fees: Unison's latest challenge has failed, and the Scottish Parliament has announced that it will abolish fees, when the control and management of employment tribunals is devolved.
  • The Ministry of Justice has published statistics in relation to all types of tribunal claims (including employment tribunals) for April to June 2015. The figures continue to show a decrease in the number of claims as compared to last year, including claims received, cases disposed of, and the caseload outstanding.

Sleeping on the job

The Employment Appeal Tribunal has said that a care home worker who lived in on-site accommodation provided by his employer was not entitled to be paid for nights 'on-call', during which he was usually sleeping.  In Shannon v Rampersad (t/a Clifton House Residential Care Home), it was held that the exception in Regulation 16(1A) of the National Minimum Wage Regulations applied: the time in question was spent 'at home', with the consequence that only the time when Mr Shannon was awake for the purpose of working counted as 'salaried hours'.  Mr Shannon was only called upon rarely during his 'on-call' nights, and was paid the national minimum wage on those limited occasions.

Public sector exit payments

The government has published the results of its consultation on capping public sector pay and announced that it intends to proceed with its proposal to introduce a £95,000 cap on public sector exit payments. The consultation response can be downloaded here.

When in place, the cap will apply before tax and cover the total aggregate value of the following payments

  • voluntary and compulsory exit payments, including those made on redundancy
  • ex gratia payments / cash lump sums and special severance payments
  • the monetary value of any extra leave, allowance or other benefits granted as part of the exit process that are not payments in relation to employment
  • employer costs of providing early unreduced access to pension
  • payments made in respect of contractual entitlements such as payments in lieu of notice or for accrued but untaken holiday.

Payments made following litigation over a breach of contract or unfair dismissal will not be capped. Neither will payments following death or injury attributable to employment, ill-health retirement payments, or payments to employees with protected terms following a TUPE transfer.

There will be a waiver process for exceptional circumstances, but any waiver would require consent from the relevant Minister, or from the full council in the case of local government exit payments. Relevant bodies will be required to annually publish details of all exit payments made.

The government intends to introduce the proposals via the Enterprise Bill 2015-16, which had its first reading in the House of Lords on 16 September 2015.

Seven day services

The hotly debated question of seven day services in the NHS has been featured regularly in the news recently and, earlier this month, Bevan Brittan's Jodie Sinclair and Alastair Currie outlined their views on, and experience of, this topic in the Health Service Journal. Please click here to read the full article, 'seven day services require a holistic approach'.

Nursing revalidation

The Royal College of Nursing has published a response to the Nursing and Midwifery Council (NMC) evaluation of the revalidation pilots – the full paper is available here. The RCN believes that the right model of NMC revalidation, which is effective and proportionate, can help to protect the public and also will create and sustain a strong culture of professionalism amongst nurses. Their response sets out a number of areas on which the RCN feels the NMC must urgently provide clarity, including third party confirmation and the emphasis on the use of appraisal as the vehicle for revalidation.

Autumn changes

The following changes will take effect on 1 October 2015.

  • The annual national minimum wage increase. The standard adult rate will be £6.70 per hour and the young workers rate will be £5.30 per hour.
  • Employment tribunals will no longer have the power to make 'wider recommendations' in discrimination claims where the employee has been successful. These recommendations are made where the tribunals feels it is appropriate for an employer to take steps to alleviate discrimination against the wider workforce, as well as the claimant.

Fit for Work

The new 'fit for work' service, which has been introduced on a phased basis, is now fully operational across the whole of England and Wales. For more information, please see our FAQs on Fit for Work. The Department for Business, Innovation and Skills has also updated its Fit for Work guidance to confirm that employers can now accept a Return to Work Plan under Fit for Work, instead of a sick note.

Employment law 2015 – need to get up to date….?

Our popular year-end round-up of the most significant workforce legal developments of the year, and horizon scanning of the foreseeable future, will be taking place in Birmingham on 1 December, Bristol on 2 December and London on 3 December.  Please see the events page of our website to register your interest in this free seminar, or keep an eye on your in-box for your invitation. Please remember to sign-up quickly - we expect places to fill fast!

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