Brexit: travel for UK employees
If the UK leaves the EU with no deal, the rules for travel to most countries in Europe will change. UK nationals will generally be required to have at least six months remaining on their passport from the date of arrival. Many employers are encouraging employees who travel regularly for business to ensure their passports are up-to-date. The UK Government used to have a practice of adding additional months to passports on renewal over and above the standard 10-year renewal. Any extra months added to the passport over 10 years may not count towards the six-month requirement, and staff who may be required to travel post-Brexit should check this.
Changes to UK Immigration Rules
The Government has announced changes to the UK Immigration Rules, which will take effect over the coming weeks. The key changes are:
- it will become possible to submit an application under the EU Settlement Scheme from outside the UK as an entry clearance application
- the current Tier 1 (Graduate Entrepreneur) visa will be replaced by a new Start-up visa route, which will be open to those starting a business for the first time in the UK
- the Tier 1 (Entrepreneur) route will be replaced by a new Innovator visa route and will require applicants to be endorsed by designated business bodies as part of the application process
- the Tier 1 (Investor) visa category will include a new requirement for applicants to evidence the source of their funds unless they can show they have held the funds for at least 2 years
- the job-specific minimum salary levels required for Tier 2 visas under the sponsor codes of practice for skilled work will change.
The above changes will take effect on various dates from 30 March 2019 onwards. In addition to the changes to the Immigration Rules, some of the immigration filing fees will be increasing for certain applications submitted on or after 29 March 2019.
Agency workers – have you got it right?
This case involved London Underground, which engaged a number of agency workers through an agency.
Under the Agency Worker Regulations, agency workers are entitled to the same pay rates as comparable
employees after twelve weeks in a given role. However, the agency in this case assured London Underground that the regulations did not apply and paid the agency workers less than employees of London Underground doing the same job. When the parties discovered that the Agency Worker Regulations did apply, the agency had to correct the pay rates. However, there was a delay in doing so due to London Underground being slow to provide information on its pay rates for employees. The agency eventually corrected the workers' pay going forward. London Underground also paid an amount over to the agency to cover back-pay but the agency went into liquidation before the money was paid on to the workers. The agency workers brought claims against London Underground for the back-pay.
An Employment Tribunal initially ruled that London Underground did not have to pay the back-pay twice.
However, on appeal, the Court of Appeal said it did. In the Court's view, although this was regrettable, it would not be just for the agency workers to miss out on their back-pay. However, London Underground only had to pay 50 percent of the back-pay because it and the agency were equally liable for the breach. The agency had been at fault for initially asserting that the Agency Worker Regulations did not apply but the delay in correcting the error had largely been down to London Underground.
This case is a reminder for any business that engages agency workers of the importance of complying with the Agency Worker Regulations. This means engaging with the agency effectively at an early stage. Businesses that use agency workers ("hirers") should not simply rely on an assertion by the agency either that the regulations do not apply or that the agency is complying with them; the hirer should do its own due diligence. Hirers should also ensure that they give the agency adequate information about the pay rates and other terms of employment for direct employees, and that they do so in a timely fashion. A hirer that fails to do so may be liable to compensate agency workers for any shortfall in pay.
Where an employer is required to pay back-pay to agency workers (or any workers), this case also highlights the need to put in place mechanisms to ensure workers actually get their pay. It was unfortunate that London Underground had to pay twice because the money it originally paid to the agency had not been handed over to the workers. In such circumstances, employers may also wish to consider having workers sign settlement agreements or COT3s as a pre-condition to passing over any payments.
LONDON UNDERGROUND LTD V AMISSAH
Whistleblowing – is it in the public interest?
To be protected as a whistleblower, a worker must make a "protected disclosure" – i.e. a disclosure of
information which, in the worker's reasonable belief, tends to show a breach of a legal obligation and is in the public interest.
The worker in this case was an interpreter at a private hospital. He asked a member of senior management to investigate false rumours among patients and their families that he was responsible for breaching patient confidentiality. He followed up with an email saying that he needed to clear his name. The issue was referred to the hospital's HR team and the worker met with the Chief Human Resources Officer. He reiterated that he believed there were false rumours circulating about him and that he wanted to clear his name. When the worker was later dismissed, he claimed that he had been dismissed for blowing the whistle, relying on the two complaints about false rumours.
The Employment Tribunal ruled that he was not a whistleblower because his complaints did not tend to show a breach of a legal obligation and were not made in the public interest. On appeal, the Employment Appeal Tribunal took a slightly different view. It ruled that the complaints did tend to show a breach of a legal obligation. The worker had complained about rumours of him breaching patient confidentiality, which he said were damaging and false. Although he did not use the term "defamation", this was essentially what he was complaining about. However, the EAT agreed that the disclosures were not in the public interest, as the worker was only concerned about the effect of the rumours on him and with clearing his own name. The worker was therefore not protected as a whistleblower.
On one hand, this case shows how wide the protection for whistleblowers potentially goes. A worker does not necessarily need to articulate the piece of law being breached to be protected. Nor does it matter if the worker is ultimately wrong, and there is in fact no breach, so long as the worker reasonably believed there was one.
However, the case also highlights that a worker must reasonably believe that what they are disclosing is in the public interest. If the worker is seeking to protect their own personal interests only, they are unlikely to be a whistleblower. A word of caution, though – the worker does not need to be motivated by the public interest. A worker would be protected as a whistleblower if their primary aim is to protect their own interests but they believe what they
are disclosing is also in the public interest. This might be the case, for example, if the worker is alleging sexual harassment or that employees are being underpaid or overworked. It is, therefore, safer to assume that a worker making a disclosure of this nature is a whistleblower and is protected from any detriment or dismissal for having blown the whistle.
IBRAHIM V HCA INTERNATIONAL LTD