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What’s on the Horizon?

EMPLOYMENT & IMMIGRATION LAW

In some ways the horizon for people related legislation always has so much on it that it’s hard to see the wood for the trees.  So, here are a few of the key areas to watch and be aware of:

 

EMPLOYMENT HORIZON

Philosophical Belief (Football anyone?) – the case of McClung v Doosan Babcock Ltd and others was heard by the Employment Appeal Tribunal (EAT) on 2 March 2023. We are awaiting the decision to see whether the EAT agreed with the Tribunal that supporting Rangers Football Club does not amount to a protected philosophical belief under section 10(2) of the Equality Act 2010 (EA).  Whatever your views on football as the national religion, there can be little doubt that the boundaries of philosophical belief under the EA will continue to be pushed.

Extension of Redundancy Protection for women and new parents – the private members bill (now backed by the government) which makes provision for protection from redundancy to be extended during and after periods of maternity, adoption or shared parental leave, had its second reading in the House of Lords on 3 March 2023.  Employers should certainly watch the progress of the bill as there is often a misguided (discrimination claims anyone?) assumption that protections end once someone returns to work from maternity leave.  This bill, once enacted, will continue statutory protections into the period after return.

Carers Leave – also on 3 March a private members bill (again, backed by the government) concerning the introduction of unpaid leave for employees with caring responsibilities had its second reading.  A pertinent issue for many senior women, we hope that those with influence on corporate policy are already encouraging this.  A reason we need women in decision making positions highlighted right there.

Tips and Gratuities – 3 March was clearly a busy day in the House of Lords as the second reading of the bill to ensure that tips, gratuities, and service charges are allocated to workers was also heard.  Whilst one has to hope that most employers already do this, its by no means a certainty.  An end to those awkward “does the service charge come to you or do I need to remove it and tip in cash” conversations.

Holiday entitlement for part year and irregular hours workers – Consultation closes on 9 March and hopefully will be the first step in moving towards some simplification of the law in this area following the decision in Harpur Trust v Brazel.  However, whilst there are proposals in place there is no indication of a timescale for legislation – so we watch and wait (and try to do the calculations, whilst remembering that employment lawyers do words not numbers – or at least this one does)!

Time off for Fertility Treatment – a private members bill is progressing, but the second reading is not scheduled to take place until 17 March.  Given that the previous second reading was interrupted on 20 June 2022, it doesn’t bode well for swift progression of this potential right.  Another area for senior women to be influencing corporate policy and paving the way for women undergoing such treatment.

Miscarriage Leave – a private members bill to make provision for 3 days of unpaid leave for people who have experienced miscarriage or an ectopic pregnancy before 24 weeks is progressing slowly.  The second hearing is scheduled in the House of Commons on 24 March.  I suspect most women will say that 3 days is not enough but it’s better than the current nothing and one would hope that given a low benchmark employers of choice would improve upon it.  We live in hope!

Employers to protect employees from sexual harassment by 3rd parties – A private members bill (with government support) is trundling its way through the legislative process.  When the Worker Protection (amendment of Equality Act 2010) Act 2023 comes into force one of the key items will be that an employer will be under a new duty to take all reasonable steps to prevent sexual harassment of employees in the course of their work.  So up that diversity and inclusion training and watch employers embrace the “what more could we have done” line of defence.

Making flexible working the default – the much talked about Employment Relations (Flexible Working) Bill 2022-23 (and frankly likely to be 2022-24) continues to trundle through the legislative process.  Although the first reading took place in the House of Lords on the 27 February 2023, no second reading has yet been scheduled.  Given the nature of this political hot potato I suspect it will continue to trundle.

Code of Practice on hire and re-hire – Following the P&O ferries mass redundancy debacle (can it really be called anything less?) the government announced that it would be introducing a new code of practice to address “fire and re-hire” practices.  The code contains a step-by-step process that employers will need to follow in order to explore alternatives to dismissal and to engage in meaningful consultation to find an agreed solution (yes, yes already arguably the purpose of consultation).  If proposed new terms cannot be renegotiated (without the threat of dismissal being used as encouragement as is often the case at present) employers will be required to re-examine their business strategy considering the potential serious consequences for employees. Whilst the law already broadly already requires employers to do this and behave in a responsible way, when that doesn’t happen the outcome is often more legislation and guidance – and here we are!

 

IMMIGRATION HORIZON

In recent years, the UK’s immigration landscape has changed dramatically. With Brexit and Covid-19, there have been major shifts in policy and procedure as the country attempts to manage its borders while still welcoming individuals who can contribute to its economy and culture.  The digital workplace phenomenon, accelerated by Covid-19, also continues to grow with individuals seeking to work remotely in search of life experiences or better work / life balance.

So, what should we expect from the UK immigration scene in 2023? Here is a look at some of the key trends that are likely to shape the UK immigration landscape over the next 12 months.

Brexit Impact on Immigration Trends

The most significant impact on immigration trends in the UK has been Brexit, with new immigration rules coming into effect from 2021 onwards. Under the new rules, EU citizens need to meet additional requirements for residency or work if they want to remain in the UK over the long-term. This means that companies hiring EU nationals must ensure that their employees meet all requirements of the Immigration Rules before applying for any type of visa.  Additionally, employers will also be responsible for ensuring their staff have valid documentation proving their right to work in the UK.  Younger employees entering the workforce, having grown up in a world where they expected to be able to work freely throughout Europe, are feeling the impact, fuelling requests to employers from these individuals for support with work authorisations abroad. Employers are likely to be managing these requests for some time and in a landscape where younger talent embraces technology and values mobility this will continue to present challenges for employers.

Sponsor Licences and Skilled Workers

Another key trend likely to shape UK immigration policy is an increase in skilled worker visas. The Skilled Worker scheme makes it easier for employers to recruit workers from outside of Europe with specific skillsets that can help certain sectors thrive.  As such, it is important for employers looking to hire international talent to familiarize themselves with these new visa types and how they apply.  Demand for sponsor licences continues to be strong and we anticipate the rise will continue in 2023. It remains to be seen whether the rate of increase reduces as the UK labour market softens.

All sponsors of workers must be aware of their sponsorship duties, as well as likely increases in compliance monitoring and audits by the Home Office. Sponsors should consider sponsor licence refresher training and mock audits to limit the risk of a licence being suspended or revoked.

With increasing use of the UK Immigration scheme for European nationals and all skilled workers, cost will likely remain a key consideration for all businesses in the UK.  Due to new regulationsthat came into effect from 1 January 2023, Sponsors of Global Business Mobility route Senior or Specialist Workers are exempt from paying the Immigration Skills Charge if all the following apply:

  • The Certificate of Sponsorship is assigned on or after 1 January 2023;
  • The worker is a national of an EU country or a Latvian non-citizen (note that nationals of Iceland, Norway, Liechtenstein and Switzerland are excluded);
  • The worker is being assigned to the sponsoring UK business by an EU-based business within the same group; and
  • The assignment is for no more than 36 months, as confirmed by the CoS start and end dates.

Corporate restructuring

High levels of corporate restructuring are expected to continue into 2023 and ensuring that the necessary reporting and sponsor licence consequences are fully understood and actioned in time is essential. Restructuring may have implications for sponsor licences, including the need to make reports to the Home Office and in some cases to apply for a new sponsor licence.

Employers going through restructuring exercises are seeking an increased level of resistance to exit.  Whilst historically most negotiations centred on the financial packages being offered an increasing number of employees are seeking to negotiate arrangements that don’t undermine their immigration status or accrued immigration rights.  Sponsors must be mindful to ensure that such arrangements do not infringe licence obligations.

We are seeing increasing requests for periods of unpaid leave prior to a termination date, in an effort to prolong the time an individual can remain in the UK and seek alternative employment in order to preserve their immigration status.  Sponsors should be mindful to stop sponsoring a worker who is absent from work without pay for more than 4 weeks in total in any calendar year (1 January to 31 December) – unless an exception applies. Exceptions include maternity, paternity and parental leave, together with sick leave and taking part in legally organised industrial action. Equally, employers should be mindful that periods of unpaid leave are not entirely cost or risk free – holiday entitlement continues to accrue (and will need to be taken or paid out on termination) and other reemployment rights remain intact.

Indian Young Professionals scheme

The Indian Young Professionals visa scheme allows Indian citizens between 18 and 30 years old to live and work in the UK for up to 2 years. The first ballot was open for applicants in February 2023, with 2,400 spaces available. If successful in the ballot, an entry-clearance (visa) application will need to be made. To qualify, individuals should be aged between 18-30, have an eligible qualification and have at least £2,530 in savings.

It is expected there will be further ballots for this scheme opened in 2023.

Electronic Travel Authorisation (ETA) for the UK

The ETA for the United Kingdom has been designed to fully digitalize borders and strengthen security checks. It’s a digital travel authorisation similar to the United States ESTA. By the end of 2024, ETA is expected to be fully in place for any non-visa nationals travelling into the UK for the purpose of a visit (business and tourism) or transit. The application will be an online process and once obtained valid for 2 years, permitting multiple entries to the UK.

Humanitarian and Asylum

The Humanitarian fallout from the conflict in Ukraine continues to displace individuals across the World (an estimated 6 million people).  Many individuals who applied initially under the Homes for Ukraine scheme, face homelessness and the original, fast-paced, visa scheme now needs adjustment to provide long term solutions, especially in relation to housing and long term visa routes to settlement.

There continues to be much media coverage regarding ‘illegal migration’ into the UK and how this can be tackled. The Illegal Migration Bill came into force on 7 March 2023. It will apply to migrants entering the UK without valid permission from the Home Office and the bill appears to announce open-ended powers of detention for migrants, so long as there is ‘reasonable prospects’ of removal.

Last week, the government also started issuing questionnaires to 12,000 individuals from five nationalities with roughly 95% grant rate of asylum claims, whose applications were stuck in the backlog of cases, and who arrived in the UK before the Nationality and Borders Act 2022 came into force in June 2022. The aim is to process these applications, and up to 70,000 others by the end of the year.

By keeping up with current developments, organisations can ensure they remain compliant with ever changing regulations while still welcoming talented individuals from around the world into their workforce.

Article by

Adele Martins, Head of Employment 

 

 

 

 

 

 

Joanne Taylor, Immigration Partner

 


The content of this article is for information purposes only. All circumstances are unique and the information and opinions given do not constitute legal advice and should not be regarded as a substitute for legal advice. No liability is accepted for the opinions contained or for any errors or omissions.

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