UK Employment Hub 

The Home Office has sent a communication to interested parties following the government’s publication of a paper outlining its offer to EU citizens in the UK. The government has reiterated its position that no action need currently be taken. “The UK will remain a member of the EU until March 2019 and there will be no change to the rights and status of EU citizens living in the UK, nor UK nationals living in the EU, during this time. So, EU citizens do not need to apply for documentation confirming their status now.”

The government’s policy paper sets out that the government will be asking EU citizens to make an application to the Home Office for a residence document demonstrating their new settled status. It aims to make the process as “streamlined and user-friendly as possible for all individuals, including those who already hold a permanent residence document under current free movement rules”. It is expected the new application system will be up and running in 2018.

In the recent decision of Farmah & ors v. Birmingham City Council & ors, the EAT held that claimants could not bring equal pay claims on the same ET1 form where they were carrying out different work. Rule 9 of the Employment Tribunal Rules 2013 (the Rules) states that two or more claimants “may make their claims on the same claim form if their claims are based on the same set of facts”.

Three of the appellants were retail staff doing different jobs in supermarkets and claiming that they were performing equal work to men working in distribution centres. The women all included their claims in the same claim form. Some of the affected men argued in the same ET1 that, if the women were successful, they did equal work with the female claimants. The remaining two appellants undertook different jobs in local government and claimed their work was equal to that of men performing a variety of jobs. The respondents argued that the claims should be struck out on the basis that they did not comply with Rule 9 of the Rules.

The EAT found the fact that the claimants were performing different work and, even if based on the same comparator, did not satisfy the definition under Rule 9 of the Rules. Therefore, the use of a single claim form was in breach of Rule 9. Under Rule 6 of the Rules, wrongly including claims by two or more claimants in the same claim form is an irregularity and the Tribunal is a permitted to “take such action as it considers just” as a consequence, up to and including striking out the claims.

The full case report can be found here: Farmah & ors v Birmingham City Council & ors.

It may not have been accompanied by the usual pomp and circumstance, but the Queen’s speech yesterday did give us some further clues as to what the government has planned for EU nationals post-Brexit. In her speech, the Queen confirmed that there were plans for an immigration bill which would enable the government to end the free movement of EU nationals into the UK, but still allow the country to attract “the brightest and the best”. She also stated that the bill would require EU nationals and their families to be “subject to relevant UK law”. This seems to suggest that we can expect to see a skills-based immigration system for EU workers following Brexit. Reading in between the lines, it also seems we can expect those EU nationals already working in the UK to be allowed to remain, if they choose to do so. However, those who choose to do so will be subject exclusively to UK law, and not enjoy the protections afforded by the European Court of Justice. Presumably this would work along the lines of Norway’s membership of the single market.

Currently EU nationals in the UK are advised to apply for permanent residency if they meet the qualifying criteria. The thinking being that this may be sufficient to secure their stay in the UK after Brexit. Theresa May is in Brussels for Brexit talks today, where she is set to address EU leaders on her plans for those 3 million EU nationals currently residing in the UK, and the 1 million UK citizens currently residing elsewhere in Europe. We understand that full details of her plans will be published on Monday, ending the uncertainty that currently hangs over those who have exercised their right to freedom of movement, and over their employers.

In Ali v. Capita Customer Management Ltd, the employment tribunal upheld a father’s claim of sex discrimination on the basis that his employer’s policies gave fathers on shared parental leave fewer rights to full pay than mothers on maternity leave.

Under Capita’s family-friendly policies, female employees were entitled to the option of 14 weeks’ full pay on maternity leave, while fathers were entitled to two weeks’ full pay on paternity and shared parental leave. This created particular difficulties for Mr Ali. His wife, who had intended to take maternity leave, suffered from post-natal depression and was advised by her doctors to return to work in order to recover from it.

Mr Ali asked Capita whether he could take leave to look after their child instead. Capita responded that he could take shared parental leave but would only be entitled to statutory pay, not full pay. As a consequence, Mr Ali decided not to take shared parental leave, but took other types of leave instead. His problems were then compounded by a line manager who did not appreciate how to appropriately handle an employee in a sensitive situation such as that of Mr Ali.

The tribunal held that Mr Ali was subjected to direct sex discrimination, since a female comparator in the equivalent situation would have been entitled to full pay. Capita plans to appeal the case to the EAT, referring to other cases where the EAT has supported enhanced payment rights for female employees over male employees while on leave.

As a first instance tribunal decision, this is not binding. We would recommend that employers await some appellant authority on the issue before making any changes to their existing shared parental leave policies.

In the recent case of Elmore v Darland High School, the Employment Appeal Tribunal upheld a Tribunal’s determination that a dismissal was fair, despite the fact that the appeal panel did not give any reasons for dismissing the Claimant’s appeal and none of the appeal panel gave evidence before the Tribunal. The Tribunal held that, in the absence of such evidence or express reasoning, it was entitled to infer that the appeal panel had upheld the capability dismissal for the same reason as the original capability panel. A somewhat surprising decision, particularly given that the Claimant, a maths teacher, had been employed by Darland High School for over a decade.

Trade unions saw a large decline in their membership last year (losing 275,000 members last year) and reducing their overall numbers to 6.2 million according to the Office for National Statistics. The largest decreases were in the pubic sector with union membership falling by 209,000 to 3.6 million. However, there was also retraction in private entities by 66,000 to 2.6 million.

Trade union leaders have plenty to say about the reason for the decline. They have pointed to the Conservative government, which they say has a policy of “shrinking the union base” and austerity. They have said that cuts have meant a loss of good jobs being replaced by a large proportion of insecure jobs. Of course, the trade unions themselves might not be entirely without blame. The decline may represent some trade union members’ unhappiness with what their trade union is offering, or feeling that their trade union is not useful in today’s society. There have been several very public trade union actions in the past few years including the rail strikes and junior doctors strikes. The duration and on-going nature of the rail strikes, have proved unpopular with the public. There were challenges in the junior doctors dispute to the trade unions’ approach to spin, which some say resulted in a reluctance to resolve the issues amongst doctors. Taking industrial action aside, issues such as the gig economy also present a challenge to trade unions. Having a flexible workforce, often without a fixed base, makes it difficult for trade unions to reach out with their members. This is particularly so, if trade unions do not embrace social media and other technological advancements. Trade unions are not generally known for being at the forefront of developments, but that may need to change, if they do not want to see further decline. Employers who recognise trade unions may see this decline as a positive development, but given that trade unions may be feeling the need to emphasise their worth, it may not all be plain sailing.

After a call from Andy Briggs, the government’s champion for older workers to increase the number of mature workers by 12% by 2022, a group of businesses: Aviva, Atos, Barclays, the Co-operative Group, Home Instead Senior Care, the Financial Services Compensation Scheme, Mercer and Walgreens Boots Alliance, have publically committed to tackling a potential skills gap by recruiting more individuals over 50 years old. Both transparency and target setting are quite fashionable at present following gender pay reporting. However, whether there will be any real development in this area remains to be seen. With Brexit on the horizon, and uncertainty about any restrictions on free movement, the pool of home-grown talent in their 50’s and older should sensibly be considered. Notwithstanding this, there is some tension between this drive and the March 2017 Advocate General’s opinion in the European case of Fries v. Lufthansa CityLine GmbH C-190/16 that an age limit of 65 imposed on EU commercial pilots is not discriminatory. In that case the Advocate General felt that the age limit was both appropriate and necessary to achieve the aim of air traffic safety. He said that there could hardly be any question that capability declined with age. For many working in non safety critical areas employers should be able to manage capability issues by pro-actively applying their capability processes at an early stage.

The world of work is changing. According to a combined study by Oxford Ecomonics and the online retailer notonthehighstreet.com, female entrepreneurs are leading the way in shunning normal working hours. Many have set up their own businesses in an attempt to juggle home and work commitments. They enjoy having flexibility to juggle home and work life, without reverting to part time work and a consequent reduction in their finances. Employers are advised to think about how they can adapt to changing work habits to recruit and retain the best talent.

The full report can be found here http://www.notonthehighstreetpresscentre.com/wp-content/uploads/Noths_Report_Release_London.pdf

Family members ‎of EU nationals can join them in another member state if the EU national is exercising treaty rights. This may mean, for example, that they are studying or working.

The EU national may qualify for permanent residence after a qualifying period of time in the UK. Once an EU national gets permanent residence they may then apply for British citizenship. One would assume that this also means that they can enjoy family life in the UK.

Until now this has not been so, but the position may be about to change. Once an EU national becomes a British citizen, they are no longer entitled to rely on EU law and the rights derived from it for family members.‎ However, the Advocate-General has given an opinion in Lounes (C-165/16) that non-EU family members should be able to remain in the UK with their dual EU and British family member. The Advocate-General considered that the treatment of Mr Lounes’ wife (the dual national) should be no less favourable than before her naturalisation, or than would be granted to her if she were forced to move to another EU state to keep her family together.

While this is only the Advocate-General’s opinion, and is therefore only advisory and non-binding on the Court of Justice of the European Union, it is rare for the Advocate-General’s opinion to not be followed. The 15 judges at the court will consider the case in the summer.

This could have a far-reaching ‎impact on EU nationals who wish to obtain dual citizenship to be sure of their right to remain in the UK once the UK leaves the EU. Previously EU nationals have held off naturalising as British citizens for fear that their family members would not be able to remain in the UK. We will watch the progress of this case carefully and bring you an update as soon as there is more news.

The Immigration Rules on visa applications ‎made by adult dependent relatives of UK citizens were changed in July 2012. An adult dependent relative may be a parent, grandparent or other adult dependent relative. There was concern at the time that the Home Office had tightened the Rules too much.

The Rules require that:

• The applicant must because of age, illness or disability require long-term personal care to perform everyday tasks.
• The applicant must be unable, even with the practical and financial help of the UK relative, to get the required care in the country where they are living. This must be because it is not available and there is no person in that country who can reasonably provide it, or it is not affordable.

Home Office statistics bore out that concern. Since the Home Office changed the Rules, the average number of successful applications each year may have reduced by at least 93 per cent.

BritCits, a campaign group, challenged the current requirements. It brought a judicial review application. It argued the Rules defeated the purpose of the law under which they were made. It also argued the Rules raised expectations without there being any real possibility of the Rules being met! Its third argument was that the Rules interfered with family life.

However, the Court of Appeal has dismissed the challenge brought by BritCits to the High Court’s dismissal of the judicial review application.

Applicants applying in this category will have to make applications in the knowledge that their success rate is exceptionally low, and, despite a challenge to the Immigration Rules, the Rules will remain as drafted. Applicants will continue to have to pull together as much evidence as they can to show they meet the requirements. Although the Rules require scrutiny of the available care in the adult dependent relative’s home country, the Home Office will consider whether the care is reasonable for the applicant and of the required level for the applicant. This can include the psychological and emotional needs of elderly parents, for example. Such an approach could mean the difference in the outcome of an application for an adult dependent relative.

If BritCits pursues its challenge to the Supreme Court we will of course keep you informed.