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Legal Update October 2009
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This document is a benefit of membership. Members are urged not to circulate it outside their organisations. They are encouraged however to circulate it to individuals within their organisations to whom it may be relevant.
M/53/09
Legal Developments
1 Immigration: Points-based System
2 ISA Vetting and Barring Scheme
3 The Equality Bill
4 Age Discrimination by Service Providers
5 Preventing Illegal Working
6 Decision on Annual Leave Entitlement during Sick Leave
7 Decision on Lawfulness of UK Retirement Age
8 Pension Changes
9 Increase in Paternity Leave
10 Agency Workers Directive
Other Issues
11 Data Protection Notification Fees
12 Supreme Court
13 Increase in National Minimum Wage
14 Increase in Weekly Limit for Redundancy Payments and Unfair Dismissal Compensation
15 TMA Legal Team
Members with questions or comments on the topics covered are asked to address them to the Legal Officer, Louise Norman. Louise can be contacted by email at louise@solttma.co.uk or by phone on 020 7557 6705.
Legal Developments
1 Immigration - Points-based System
Members’ attention is drawn to the update on this subject enclosed with this circulation. It contains details of the Home Office’s current consultation on charging for immigration and visa applications, and various recent developments and clarifications relating to the points-based system.
2 ISA Vetting and Barring Scheme
On 12 October 2009 the Independent Safeguarding Authority (ISA) vetting and barring scheme was launched in England , Wales and Northern Ireland . Scotland will introduce an equivalent scheme next year. The ISA works in partnership with the Criminal Records Bureau ( CRB ) to deliver the new scheme. The CRB provides the administrative arm, which supports the ISA’s primary function of making barring decisions. The ISA will make all decisions about who should be barred from working with children and vulnerable adults. There are two separate but aligned ISA Barred Lists (one for those barred from working with children and one for those barred from working with vulnerable adults), replacing the previous lists, ie The Protection of Children Act (POCA) list, the Protection of Vulnerable Adults (POVA) list, List 99 and the court-imposed disqualification order regime.
Employees and volunteers (paid or unpaid) will have to register with the ISA where they carry out any of the following regulated activities:
· they frequently, intensively and/or overnight;
· train or supervise children or vulnerable adults;
· care for children or vulnerable adults
· transport children or vulnerable adults; or
· moderate any public electronic interactive communication service likely to
be used by children or vulnerable adults (eg a website);
or
· they carry out any type of work frequentlyor intensively involving contact with children or vulnerable adults in an educational institution, a hospital, a children’s home or a care home.
ISA guidance indicates that “frequently” means “once a month or more” and “intensive” means“ takes place on three or more days in a 30-day period” .
Individuals will be subject to a fine or imprisonment if they apply to work or actually start work in a regulated activity when they are barred from doing so or if they fail to register.
Any organisation recruiting employees or volunteers could also be subject to a fine and/or the senior management to imprisonment if they do not check the register prior to employing someone in a regulated activity or if they employ someone who is barred from working in a regulated activity. If an individual is dismissed or leaves in connection with an act which could lead to him being barred from working with children or vulnerable adults, the employer will be obliged to report this to the ISA and could be subject to a fine if they do not do so.
The scheme will clearly be relevant to members providing performances, workshops and other activities in schools and other educational institutions on a frequent basis. It will also be relevant to chaperones. Adult actors, directors and others working on shows with child performers will not have to register unless they are frequently training, supervising, caring for or transporting the children, or carrying out any other regulated activity. Members are invited to seek advice from the Legal Officer if they are uncertain whether an individual’s work will amount to a regulated activity.
CRB checks will still be required where there is a legal requirement for them. For individuals registered with the vetting and barring scheme, further Enhanced CRB checks will be at the employer’s discretion and organisations may still wish to apply for CRB Enhanced Disclosure to obtain an applicant’s full criminal record. ISA registration does not mean an individual has no criminal record so, in any event, employers may wish to carry out a CRB check to ascertain whether the person is suitable for a particular role or position.
From 12 October 2009 , employers must not engage individuals in a regulated activity if they know or have reason to believe the individual is barred. They must also refer any information which indicates that an individual could be a threat to children or vulnerable adults to the ISA. It will be possible to register and to check the register from 26 July 2010 . It will become compulsory for employees/volunteers moving into a regulated activity to register and for employers to check the register before engaging such individuals in a regulated activity from November 2010. Existing employees/volunteers performing a regulated activity will need to apply in order of priority between January 2011 and July 2015. Registration will cost £64, but be free for volunteers.
Further information is available from www.isa-gov.org.uk/Default.aspx?page=2
3 The Equality Bill
The Equality Bill is currently going through Parliament and, if enacted, will apply to England , Wales and Scotland . Northern Ireland is considering whether and when to introduce equivalent legislation. The majority of the Bill is expected to come into force in Autumn 2010. Having said that, the Bill may be derailed by the General Election and whether the new Government takes it forward in the same form - or at all - remains to be seen. The Conservatives have so far voted against the Bill.
The Bill streamlines the whole of discrimination law, bringing all the separate pieces of existing legislation into one instrument, and introduces some important changes, including the following:
· public bodies already have the duty to promote gender, disability and race equality. The Equality Bill extends this duty to cover sexual orientation, age, religion or belief, pregnancy and maternity, and gender reassignment equality. Public bodies will also have to consider what action can be taken to reduce socio-economic inequalities, and there will be new specific duties to consult affected groups, publish objectives, review progress and use procurement to advance equality. These measures are due to come into force in 2011 and will affect local authority-owned or run member organisations and may affect those private bodies providing a public service and publicly funded members;
· public bodies with 150 or more employees will have to report annually on their gender pay gap, ethnic minority employment rate and disability employment rate. Private sector employers with 250 or more employees will only have to report on their gender pay gaps;
· the ways in which employers can favour minority groups to advance equality without discriminating will be expanded. Appointing a woman ahead of a man with the same experience because of her gender, termed positive action, is an example of this;
· the Bill protects those who suffer discrimination based on the age, disability, gender reassignment or sex of someone they are associated with. An individual would, therefore, be protected if they were treated less favourably because they had a disabled child;
· the Bill prohibits age discrimination by service providers. See the next item for further details;
· a recent decision, in favour of employers, altered the legal protection provided to disabled people. The Equality Bill provides new protections for disabled people to ensure their rights are largely the same as they were prior to this case. This is a complex area of law so if members have any specific queries in relation to disability discrimination they should contact the Legal Officer;
· the genuine occupational requirement defence is retained in the Bill in the form of one general exemption, rather than a specific reference to authenticity in “dramatic performances and other entertainment” as in the current legislation. The TMA legal team is checking the position to clarify whether this will have any adverse impact on the industry;
· currently employers can be held liable for sexual harassment of employees by third parties. The Bill extends this protection to cover harassment on the basis of age, disability, gender reassignment, race, religion or belief and sexual orientation.
For further information on the Equality Bill, see www.equalities.gov.uk/pdf/NEWGEO_FairerFuture_may09_acc.pdf
4 Age Discrimination by Service Providers
As mentioned above, the Equality Bill prohibits age discrimination by service providers. This measure is due to come into force (subject to the comments above regarding the new Government) in 2012 and will extend the existing ban on age discrimination, which applies only to the workplace, and is relevant for members who provide age-related events, benefits or concessions, such as discounted tickets for senior citizens. As reported at recent members’ meetings, the Government has consulted on what sectors and practices should be exempt from the ban. A TMA response has now been submitted. Many thanks to all members who contributed comments. The Government expects to include exemptions for subsidised leisure facilities for older or younger people so members should not be unduly concerned about this aspect of the Bill. For further details of the proposals, see the consultation document at
www.equalities.gov.uk/pdf/13511%20GEO%20Consultation%206th.pdf
5 Preventing Illegal Working
Baroness Scotland’s fine of £5,000 for failing to retain documents allegedly verifying her housekeeper’s right to work in the UK is a warning for employers to ensure they comply with the rules on preventing illegal working, which were amended last year. These apply to all countries in the UK . To recap, employers should follow these steps when recruiting:
· require all employees before they start work to provide evidence of their right to work in the UK , eg a passport. Limiting the check to those the employer considers to be “non-British” could lead to claims of race discrimination;
· the lists of acceptable documents are on pages 26-30 of the guidance at www.ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/preventingillegalworking/currentguidanceandcodes/summaryguidance0208.pdf?view=Binary
· the employer should check the photograph, date of birth and expiry date on the document, and that the document is the original; take a copy of the document; and retain the copy;
· if the employee is not an EEA national or their ability to work in the UK is restricted, the employer should ask for an original document from list B on page 28 of the guidance above and retain a copy;
· if an employee’s ability to work in the UK is limited, every 12 months the employer must check the employee’s original documents, take copies to retain and sign and date them. The employer should put a system in place to remind them to do this;
· workers from Romania and Bulgaria should also have accession worker authorisation, so the employer should ask to see this and take a copy;
· workers from the Czech Republic , Estonia , Hungary , Latvia , Lithuania , Poland , Slovakia and Slovenia must register with the UK Border Agency within 1 month of starting work, so the employer should take a copy of the worker’s application and the authorisation received.
Failure to check the worker’s right to work in the UK could lead to a fine of up to £10,000 per worker. Taking the above steps enables the employer to establish a statutory excuse against payment of a such a fine should they be found to be employing an illegal worker If an employer knowingly employs an illegal worker, they could receive an unlimited fine and/or imprisonment for up to two years. So, as this high profile case demonstrates, it is important to be aware of the rules and to set up a system to ensure compliance.
Checking documents before the worker starts work could be problematic in the theatre industry, particularly in relation to the engagement of performers. In the past, in order to address this, the TMA has suggested that members state expressly (in writing) at the point a job offer is made that the offer is conditional on the production of the relevant documents by the individual, and follow up on this by checking and copying the individual’s documents or withdrawing the offer if documents are not produced. Given the tightening up of the legislation and the increase in penalties last year, however, members continuing to adopt this approach should do so with caution. The safest course is to check the documents before the worker starts work in accordance with the steps set out in the bullet points above.
Members should note that to benefit from the statutory excuse the employer must carry out the checks. An agent’s confirmation that an individual is entitled to work in the UK is not sufficient.
6 Decision on Annual Leave Entitlement during Sick Leave
A recent House of Lords decision determined that employees accrue holiday during sick leave. This decision left open the issue as to how that entitlement could be used when someone is on long term sick leave. This is because UK law requires employees to take 4 weeks of their statutory annual entitlement in the leave year to which it relates, and prevents employees from being paid in lieu of leave during employment.
A recent European Court of Justice (ECJ) decision has clarified the position. Where an employee is unable to take annual leave because it coincides with a period of sick leave they must be able to take that holiday at another time, even if it means using it in the following holiday year. The worst case scenario would, therefore, be that if an employee entitled to 28 days’ annual leave is on sickness absence for the complete 2010 leave year, they would be entitled to roll that holiday over, giving them a total of 56 days to take in 2011.
The ECJ’s decision means that employers cannot force employees to take annual leave during sick leave even if it means that the employee will be unable to use 4 weeks in the relevant holiday year. Similarly, if an employee’s contract is terminated, they are entitled to be paid for all holiday accrued but not taken, even if they have been on sick leave prior to the date of termination.
The ECJ decision does not apply to private sector member organisations yet as the Working Time Regulations have not been amended, so whilst their employees do accrue holiday during sick leave there is still some flexibility about when that is taken. It does, however, apply immediately to public sector member organisations.
It is important to note that this applies to the statutory entitlement, not to any additional contractual entitlement, and it does not preclude employers and employees agreeing that annual leave can be taken during sick leave. This would benefit employees who are only entitled to statutory sick pay or limited contractual sick pay. The appropriate action to be taken will largely depend on the specific case, so members are advised to contact the Legal Officer should the situation arise.
7 Decision on Lawfulness of UK Retirement Age
The High Court has ruled that the UK ’s default retirement age of 65 is lawful. This means that employers can lawfully dismiss employees who are 65 or over as long as they follow the retirement notification procedure (see www.businesslink.gov.uk/bdotg/action/layer?r.s=tl&r.l1=1073858787&r.lc=en&r.l2=1073876974&topicId=1073932131 and
www.acas.org.uk/media/pdf/r/j/Age_and_the_Workplace.pdf
for guidance). The High Court was clear that this decision was only made in favour of employers because a Government review is due in 2010, so this is certainly not the end of the story.
8 Pension Changes
Last month the Government published draft regulations under the Pensions Act 2008 in respect of a new obligation for employers to automatically enrol employees between 22 years old and pension age, whose annual income is more than £5,035, into a pension scheme. This will apply toEngland , Scotland and Wales . Northern Ireland is expected to introduce an equivalent scheme. Currently employers with 5 or more employees are required to provide access to a stakeholder pension scheme, but there is no obligation to enrol the employee or to contribute to the scheme. The new legislation will ultimately require employers to make a minimum contribution of 3% of the employee’s earnings and require the employee to contribute 5% (including tax relief) from 2016. The proposals are to be phased in from 2012 according to the size of the employer and beginning with a 1% employer contribution and a 1% employee contribution. It will be possible for employees to opt out of the scheme.
9 Increase in Paternity Leave
The Government has announced that fathers of children due to be born on or after 3 April 2011 will be entitled to 6 months’ paternity leave, including 3 months paid at the statutory rate (currently £123.06) if taken during the mother’s 39 week maternity pay period. The right can only be used in the last 6 months of maternity leave and only if the mother is returning to work. The current entitlement is 2 weeks’ leave paid at the statutory rate. This is designed to give parents more choice about who takes time off work to look after the child.
10 Agency Workers Directive
The Prime Minister stated last month that he intended to fast track the implementation of the Agency Workers Directive. As reported previously to members, the Agency Workers Directive will allow temporary workers supplied by temp agencies in the UK to enjoy rights equal to comparable full-time employees in the host organisation once they have 12 weeks’ service. Relevant rights will include pay, holiday pay and overtime pay, but not rights under occupational social security schemes such as enhanced sick pay. Members will be informed of the specific details of implementation when they become available. In the meantime, it would be useful for the Legal Officer to know to what extent agency workers are used by members.
Other Issues
11 Data Protection Notification Fees
A new fee structure was introduced on 1 October 2009 for notifications to the Information Commissioner by data controllers. Previously, there was a flat fee of £35 for all, but now there is a 2-tier structure under which larger employers will have to pay £500. Those with a turnover of £25.9 million or more and with 250 or more members of staff are classed as larger employers.
12 Supreme Court
From 1 October 2009 the Supreme Court replaced the House of Lords as the highest court of appeal in the UK .
13 Increase in National Minimum Wage
Members are reminded that with effect from 1 October 2009 the NMW main rate (for workers aged 22 and over) rose from £5.73 per hour to £5.80, the development rate (for 18 – 21 year olds) from £4.77 per hour to £4.83 and the rate for 16 and 17 year olds from £3.53 per hour to £3.57. Further information about the NMW is available from the NMW helpline on 0845 6000 678.
14 Increase in Weekly Pay for Redundancy Payments and Unfair Dismissal Compensation
From 1 October 2009 the limit on a week’s pay for the purposes of calculating statutory redundancy payments and the basic award for unfair dismissal increased from £350 to £380. Although there is usually an increase in February every year, due to the increase in redundancies resulting from the current economic climate, the Government decided to increase the amount at this earlier date to assist employees. The next increase will now not take place until February 2011.
15 TMA Legal Team
The TMA is pleased to announce that Marsha Ferguson-Yarde recently started work at TMA in the post of Assistant Legal Officer, joining Louise Norman, the Legal Officer, and Louisa Bell , the Assistant to the Employment Relations and Legal Officers. Marsha was previously a solicitor with City law firm, Stephenson Harwood. Members are asked to continue to address their legal queries to the Louise Norman (louise@solttma.co.UK, 020 7557 6705) in the first instance.
Louise Norman
Legal Officer
13 October 2009 |
Marsha Ferguson-Yarde
Assistant Legal Officer
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Legal Update is intended to provide general information about the topics covered, which it is hoped will be helpful to members. However, as legal advice must be tailored to the specific circumstances of each case, the contents of Legal Update are not intended to be a substitute for taking advice in person from a qualified lawyer. Members requiring advice about a particular legal issue are invited to contact the Legal Officer.
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