Welcome to the June edition of our monthly Newswire, where you will find the usual selection of articles on various topics related to HR and employment law. If you want to discuss any of the issues raised in more detail, just pick up the telephone and give me a call. I look forward to hearing from you.
Many businesses worry about the risk of unwittingly employing someone who doesn’t have the right to work in the UK. The fear is understandable; after all, you can be hit with a fine of up to £20,000 for each illegal worker whom you employ. So what happens if you believe that someone working for you no longer has a valid work visa? If they don’t leave of their own accord, can you dismiss them and what are the risks if you do? The recent case of Nayak v Royal Mail Group casts some light on the matter.
Mr Nayak worked for Royal Mail for a number of years under a variety of different types of visa. In 2010, when he applied for a student visa, his application was initially refused. But having validly appealed, the progress of his visa application stalled. Over the next few years, it appeared that no formal decision in relation to his application was made and Royal Mail became less and less clear as to whether Mr Nayak continued to have the right to work in the UK or not.
Under immigration laws, there is a general presumption that if you make an ‘in time’ application for a new visa, you retain the right to live and work in the UK under the terms of your old visa until your application has been decided or withdrawn. But Royal Mail, understandably, became increasingly concerned about Mr Nayak’s status, bearing in mind that it came to a point where his most recent visa application was over 3 years old.
Based on their belief that he no longer had the right to work in the UK, Royal Mail dismissed Mr Nayak. Mr Nayak responded by bringing a claim for unfair dismissal.
The Employment Tribunal (and subsequently the Employment Appeal Tribunal) found in Royal Mail’s favour. They considered the two potentially fair reasons for dismissing an employee in cases such as this. Firstly, if the employee really had lost his right to work in the UK, then it is potentially fair to dismiss the employee in order to ensure that the company complies with statutory immigration laws. But what about a situation in which an employer, at the time of dismissal, believes that an employee cannot lawfully work in the UK, only to realise later that this is not the case? The EAT confirmed that a ‘genuine and reasonable’ belief of this nature, even if mistaken, amounted to a sufficiently substantial reason for dismissal as to make the dismissal fair.
In this case, the facts showed that Royal Mail had made repeated efforts to check Mr Nayak’s immigration status, both with him and the Home Office, before finally deciding to dismiss. They were found to have acted in a manner that was both fair and reasonable. As a result, the decision to dismiss was lawful, despite Royal Mail being wrong about Mr Nayak’s immigration status.
If you are concerned about an employee’s right to work in the UK, this case underlines the importance of taking all reasonable steps to confirm their immigration status both with the employee and the relevant authorities. However, if you have good reason to believe that the employee can no longer continue to work for you, you may be able to lawfully dismiss them, even if your conclusion regarding their immigration status turns out to be wrong.
If you need further advice on this issue, please get in touch.
It’s a few months since I last commented on the ongoing saga relating to the calculation of holiday pay. So it’s about time I gave you a bit of an update.
We have seen a number of cases grappling with the extent to which overtime pay should be factored into holiday pay calculations. The cases have identified at least 3 different types of overtime:
You may recall the earlier decision in Patterson v Castlereagh Borough Council. This Northern Ireland case concluded that even if the overtime is voluntary, it may nevertheless need to be factored into the worker’s holiday pay if (i) employees regularly work the overtime and (ii) it becomes part of their normal remuneration. Because this case was decided in Northern Ireland, the door was left open to the possibility that an English Employment Tribunal might reach a different conclusion. However, the recent case of White and ors v Dudley MBC appears to have firmly slammed the door shut on this idea (at least for now).
The workers in the White case regularly worked voluntary overtime, as well as being on stand-by for emergency call outs. Historically, the Council had paid holiday pay at the workers’ basic rate of pay only, excluding any additional payments. However, the Employment Tribunal accepted that the additional payments made to staff in respect of regular voluntary overtime amounted to part of their ‘normal’ pay. As a result, it should have been factored in when calculating their holiday pay.
This decision is unsurprising; EU law says that if a worker regularly works overtime, the overtime pay should be factored into their holiday pay calculation. But how ‘regular’ does the overtime need to be? Answer: we don’t know! The facts in this case were pretty clear cut. So we probably need some decisions based on situations that are closer to the margins in order to get a better feel for this.
Of course, the ‘elephant in the room’ is the question of what the Court of Appeal is going to make of all these issues when it hears the case of Lock v British Gas in July. The Grounds of Appeal and skeleton argument submitted by British Gas have been widely publicised and their arguments make very interesting reading. If the Court of Appeal decides in British Gas’ favour, this could suggest that all current holiday pay claims (other than those against public sector employers) should fail. The next question is whether, in such a situation, the government would have to swiftly change the law in order to make it comply with the European Working Time Directive. This will, presumably, be significantly influenced by whether we vote ‘in’ or ‘out’ in this month’s EU referendum. It’s fair to say that the stakes couldn’t be higher!
It is quite common for employment contracts, settlement agreements and other similar contracts to include a provision that states that the terms of the agreement can only be varied in writing. Until now, there has been considerable doubt as to whether such clauses are effective. Previous judicial decisions have proved contradictory. However, in the recent case of Globe Motors Inc v TRW Lucas Variety Electric Steering Ltd, the Court of Appeal indicated that a clause that sought to prevent the parties from verbally agreeing a variation to a written contract was ineffective.
It’s been said that a verbal contract is not worth the paper it’s written on. The reality is that verbal contracts - or contracts that have been varied by verbal agreement - are normally just as enforceable as written contracts. But the big problem can be proving what was agreed in the first place. As a result, whether you are entering into a contract for the first time or varying it for the umpteenth time, make sure that the arrangement is clearly documented, in writing, and each side confirms its agreement (preferably by signing on the dotted line).
You are probably aware that discrimination on the grounds of a person’s religious or philosophical beliefs is unlawful. But the question that leads on from that is which beliefs are sufficiently important to warrant protection and which are not?
In the well-known case of Grainger v Nicholson, the Employment Appeal Tribunal indicated that in order to gain protection under the law, a 'philosophical belief' must be:
So that’s nice and clear then!
By way of ‘real life’ examples, our tribunals have found that a belief in man-made climate change can be covered; as can a belief in spiritualism and the ability of ‘mediums’ to contact the dead. But what about a belief that public sector bodies waste too much public money? I have to say that it doesn’t immediately sound like a philosophical belief that would naturally invite the protection of discrimination laws. However, in the recent case of Harron v Dorset Police, the Employment Appeal Tribunal concluded that this was a belief that could potentially fall within the ambit of the Equality Act 2010. As a result, the case has been sent back to the Employment Tribunal for the judge to give the matter some further careful thought. The EAT emphasised that whilst the belief must be more than trivial, tribunals must not set the bar too high.
In some respects, this is an interesting case. However, despite how widely reported this case has been, I have to wonder how much further the law has progressed as a result. Furthermore, bearing in mind the cost to the public purse of this sort of litigation, is there not a risk that Mr Harron is himself now contributing to a waste of public money of the very sort that he was concerned about in the first place? Oh, the irony!
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