Legal briefing | |

Employment Update - September 2019


Key employment and business immigration developments for employers.

In the News

Brexit – what's the deal?

The Government has announced its revised post Brexit immigration policy which will apply if the UK leaves without a deal. Just a third of the three million EU nationals in the UK have secured their UK residence status under the EU Settlement Scheme, with significant numbers still yet to apply. So, what does the announcement mean for employers and their EU employees?


Just a third of the three million EU nationals in the UK have secured their UK residence status under the EU Settlement Scheme, with significant numbers still yet to apply.


Existing employees

The recent announcement does not change the position for existing EU employees. All EU nationals in the UK as at the date of Brexit will need to apply for the right to remain under the EU Settlement Scheme, as has been the case for some time. The Government has confirmed that, even if the UK leaves the
EU with no deal, EU nationals would still have until 31 December 2020 to apply under the EU Settlement Scheme. Nevertheless, given the current political uncertainty many employers are encouraging staff to apply sooner rather than later, to avoid any issues in future.

Recruitment post-Brexit

The Government's announcement on free movement primarily impacts recruitment post-Brexit. The UK
government has committed to ending free movement rules in the UK after Brexit and the rights of EU nationals to live in the UK will change after Brexit. Theresa May's Government had said that, in a no-deal scenario, there would be a transition period until 31 December 2020 during which EU nationals would be able to come to the UK without a visa for up to three months at a time. The new announcement essentially replicates this and provides that EU nationals who arrive after Brexit will be able come to the UK and will then have until 31 December 2020 to apply for European Temporary Leave to Remain (Euro TLR). This effectively introduces more flexibility and means EU nationals could stay longer than three months without needing to apply for any status.

Employers will be able to rely on EU/EEA passports to evidence right to work with new requirements unlikely to apply until 2021 when a "new points-based immigration system" is due to be introduced. In essence, this replicates the previous government's policy, providing much needed clarity for EU nationals and employers.

The UK Government has stated that it then intends to introduce a new single skills-based immigration system covering both EEA and non-EEA nationals from 1 January 2021.It has commissioned the independent Migration Advisory Committee (MAC) to consider salary thresholds as well as conduct a review of the Australian immigration system and similar systems to make recommendations for the new immigration system. The MAC has been asked to report in January 2020.

Business travel to the EU post-Brexit

UK nationals travelling to the EU on business following a no-deal Brexit will be treated as third country nationals (i.e. as non-EU nationals) and will generally be subject to the same entry requirements applicable to other non-EU nationals. However, under reciprocal arrangements agreed in principle
between the UK and the EU, it should still be possible for UK nationals to travel to EU countries without a visa for short business trips, e.g. to attend meetings and to negotiate and sign deals. Any work beyond this would generally require a visa under the laws of the individual member state being visited. As a
practical point, UK nationals travelling to the EU for short business trips postBrexit without a visa would need to have at least six months left on their passports. They will also need to track their trips due to restrictions on the number of days they will be permitted to spend in the EU. A restriction of spending no more than 90 days in each rolling 180-day period in the EU is likely to apply.

We have been working with a number of clients on their Brexit contingency planning and staff communications. We have also produced a more detailed briefing note on Brexit and immigration. Please get in touch with your usual Employment Department contact if you would like a copy of the note or would like to discuss the impact of Brexit on your business.

UK nationals travelling to the EU on business following a no-deal Brexit will be treated as third country nationals…


Tier 2 Sponsor compliance changes

A Tier 2 sponsor employer is required to retain certain compliance documents in respect of employees it
sponsors on its sponsor licence. One of the key documents to be retained is evidence of the employee's UK visa (i.e. their visa endorsement stamped with the date of arrival in the UK and their biometric residence permit). The UKVI updated its compliance guidance for Tier 2 sponsor employers on 6 August 2019 and employers must now additionally retain evidence of the date of the individual's arrival in the UK.

Since 20 May 2019, nationals of Australia, Canada, Japan, New Zealand, Singapore, South Korea and the
United States of America have been eligible to use automated ePassport gates for faster entry to the UK.
Consequently, their passports are no longer stamped with their date of entry to the UK. Where a sponsored employee's passport has not been stamped (e.g. in the case of a US national), employers must now check evidence of the date of entry, e.g. a used travel ticket or boarding pass and make a record. Employers should check that the date of entry is on or after the relevant start date on the individuals Tier 2 visa, to ensure they have entered the UK on the correct basis. While not a mandatory requirement, employers should retain a copy of the ticket or boarding pass as evidence of the relevant date of entry for future reference.

Case Watch

Employees recording meetings – is it misconduct?

The employee in this case worked in the finance department of a charity. She complained to the Head of
Finance about her treatment by the Finance Director. When the Head of Finance and Finance Director met to discuss the complaint, the employee interrupted the meeting and refused to leave when asked. She was subsequently invited to a meeting with HR, which she secretly recorded. A disciplinary process then followed in relation to the employee's conduct at the earlier meeting and the employee was given a formal written warning. She also raised a grievance citing various issues with management which was rejected. Following a period of sickness absence and an unsuccessful mediation, the employee was dismissed due to an irretrievable breakdown in working relationships.

The employee brought an unfair dismissal claim and won. It only emerged during the hearing that the
employee had secretly recorded the initial conversation with HR. The employer argued that had it known about the recording, it would have dismissed the employee for gross misconduct and therefore she should not receive any compensation for her dismissal. The Employment Tribunal ruled that there was a ten percent chance the employee would have been dismissed fairly had the employer known about the secret recording and so reduced the employee's compensation by ten percent. On appeal, the Employment Appeal Tribunal agreed and said that secretly recording meetings will usually constitute misconduct but not necessarily gross misconduct.

It is relatively easy for employees to record meetings secretly nowadays given the technology available on mobile phones. However, as this case shows, recording a meeting without telling the employer will usually amount to misconduct. Whether or not this could also amount to gross misconduct will depend on the circumstances, including the employee's reason for making the recording, what is ultimately recorded, any damage done to the employer by the recording and the employer's attitude to the recording. Employers should consider stating in their policies that recording of meetings without the knowledge or consent of those
involved constitutes misconduct and, in some circumstances, may amount to gross misconduct. Practically, managers conducting disciplinary or grievance meetings may wish to confirm at the outset that no recording is being made and should also generally leave the room to conduct their deliberations to avoid these being recorded secretly.


Employers should consider stating in their policies that recording of meetings without the knowledge or consent of those involved constitutes misconduct...


Employer liability for social media posts

The employee in this case was a security officer at an airport. One of his colleagues posted an image of a
golliwog on Facebook with the comment "Let's see how far he can travel before Facebook takes him off". The employee was shown the post by another colleague (as the employee himself was not a Facebook friend of the colleague who posted the image). The employee raised a grievance. The grievance was upheld and the colleague who posted the image offered an apology and received a final written warning. The employee brought a claim of harassment against his employer. One of the issues in the case was whether the employer could be liable for a Facebook post made by an employee outside work on their personal account.

The Employment Tribunal and the Employment Appeal Tribunal ruled that the employer was not liable. An
employer can only be liable for harassment by an employee which occurs in the "course of employment". The posting of an image on a private Facebook page, outside work, where few work colleagues were Facebook friends, could not be considered to be in the course of employment. 

This case highlights some of the workplace challenges posed by social media. It can be difficult to draw the line between what is "in the course of employment" and what is not, and social media can make the distinction even more difficult. It was relevant in this case that the
colleague who posted the offending image on Facebook did not have many work colleagues as
Facebook friends but the position could be different where a large number of colleagues are
all friends on Facebook. More importantly, the employee in this case argued that the employer should be responsible for the actions of the colleague who posted the image on Facebook, rather than the colleague who showed the employee the image. Had he argued the case differently, the employer may have been liable.

As this case shows, an employer would usually be justified in taking action against an employee who posts offensive or harassing comments or images on social media outside work where colleagues take offense or are themselves the target of such posts.


New Law

Termination payments

From 6 April 2020, changes will be made to the national insurance due on termination payments, including redundancy payments. Currently, where an ex gratia payment is made on termination of employment (on top of notice pay), the first £30,000 can be paid free of income tax and any amount above this is taxable. However, the entire payment is currently exempt from national insurance contributions. From 6 April 2020, the first £30,000 of any ex gratia termination payment (including any redundancy payment) will still be free of income tax and national insurance but any amount above this will be subject to employers' national insurance contributions.

Employment contracts

From 6 April 2020, employers will be required to provide a written statement of terms and conditions for all workers (eg casuals, freelancers and some contractors and consultants), not just employees. The statement will also need to be provided on or before the first day of work. Currently, a statement of terms only needs to be provided to employees (and not workers) and within two months of employment starting (rather than by day one). In addition, there are also some changes to the particulars required (eg the statement will need to contain details of any terms and conditions of employment relating to benefits, training requirements and paid leave other than just holiday and sick leave). Employers should therefore review their template employment contracts before April 2020 to ensure any necessary changes are made.


Improving casual worker rights

The Government has published a consultation paper on measures to tackle so-called "one-sided flexibility" faced by casual workers – i.e. unpredictable working patterns and employers cancelling shifts at short notice or sending workers home early without compensation. The consultation follows recommendations made by the Low Pay Commission in response to the findings of the Taylor Review.

The consultation paper confirms that the Government plans to introduce a right for casual workers to switch to a contract that reflects their normal working hours if they are regularly working more than their contract suggests. Employers would only be able to refuse to switch contracts on limited business grounds (e.g. it would cause significant, adverse change to the business).

The consultation paper also seeks views on:

● a new requirement for casual workers to be given "reasonable notice" of a shift
● a new right for workers to receive compensation if a shift is cancelled or cut short without "reasonable
● what "reasonable notice" in this context should be and whether this should vary depending on the type of work done or the industry.

The consultation closes on 11 October 2019 and we invite your views on any relevant parts.

Managing sickness absence

The Government has published a consultation paper seeking views on a number of proposals aimed at reducing job loss due to ill-health. The proposals include:

● giving non-disabled employees a right to request workplace adjustments to accommodate a health
condition (in addition to the rights which disabled employees already have)
● enabling statutory sick pay to be paid during a phased return to work, so that the employee could receive part salary and part statutory sick pay according to the time worked
● extending the right to statutory sick pay to those earning below the lower earnings limit
● requiring employers to give four weeks' notice that statutory sick pay is due to end

The consultation closes on 7 October 2019.

Watch this Space

Confidentiality clauses

As reported in the March 2019 Employment Update the Government ran a consultation earlier this year on confidentiality clauses in settlement agreements and employment contracts. The Government has now
published its response to the consultation, confirming that it will:

● introduce a ban on any provision that prevents someone from making a disclosure to the police or regulated healthcare or legal professionals
● require settlement agreements and employment contracts to state expressly that any confidentiality
provisions do not prevent the worker from making certain disclosures (e.g. whistleblowing disclosures and reporting matters to the police)
● make confidentiality clauses in settlement agreements void if they fail to specify which disclosures a worker can still make
● require employees who enter a settlement agreement to receive independent advice, not just on the terms and effect of the agreement, but also the nature and limitations of any confidentiality clause
● require employers to summarise the limits of any confidentiality clause in the written statement of
employment particulars that must be given to all workers at the start of employment.

The Government has not said when these changes would be introduced, other than to say they will be
implemented "when Parliamentary time allows". Employment Update will report developments.

Pregnant workers and new parents

As reported in the March 2019 Employment Update, the Government ran a consultation earlier this year on extending redundancy protection for pregnant women and new parents. The Government has now published its response confirming that it plans to press ahead with its proposals.

Currently, before making a woman who is on maternity leave redundant, an employer must offer her any
suitable alternative vacancies which exist within the employer's business. The Government will extend this protection so that it begins when the mother notifies the employer of her pregnancy and ends six months after she has returned to work (as opposed to only applying during maternity leave). The same extension will apply in relation to adoption leave. Similar rules will apply in relation to shared parental leave, although the Government will consult further on how this will work, given shared parental leave can be taken in small blocks of a week at a time.

The Government has not said when these changes would be introduced, other than to say they will be
implemented "when Parliamentary time allows". Employment Update will report developments.

Our Work

Since our last Employment Update, our work has included:

● advising on a reorganisation which involves changes to working hours and a reduction in overtime
● advising on the extent of a DSAR and the practical implementation of the search exercise
● advising a tech client on the employment aspects of a "bolt on" acquisition and subsequent integration and restructuring programme
● advising a global cosmetics organisation on the departure of a senior executive, including the negotiation of exit terms and an agreed communications plan
● advising on a client's industrial relations/trade union strategy
● settling an employment and shareholding dispute with a departing founder via mediation
● successfully obtaining strike out of an unfair dismissal and discrimination claim against a leading PLC


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