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Public Knowledge - The HR and Employment Law Newsletter from Morgen HR
July Edition
In this edition:
Morgen HR Launch New Website
We will be constantly updating our new website from now on so do keep checking back. As well as news on HR & Employment Law issues there are free downloadable templates including a contract of employment, a health and safety statement and many other documents.
Take a look at the new website at:
www.morgenhr.co.uk
Pregnant Workers and Risk Assessments
Pregnant workers enjoy special protection under the law, and any less favourable treatment of a woman on the grounds of pregnancy will amount to direct sex discrimination. But how do the principles of sex discrimination apply in relation to the carrying out of risk assessments for pregnant workers?
Under reg. 3 of the Management of Health and Safety at Work Regulations 1999 (SI 1999/3242), every employer must make an assessment of the health and safety risks to which its employees are exposed in the course of their work. Under reg. 16, where the employees include women of child-bearing age, and the work is of a kind that could, because of her condition, involve risk to a new or expectant mother, the risk assessment must also assess that risk. Once an employer has been notified that a particular employee is pregnant, there are further requirements relating to removing risks, providing alternative employment and suspending on full pay.
A failure to carry out a proper risk assessment in relation to a pregnant employee may be considered an act of direct discrimination
Changes to Maternity Rights
Introduction
UK maternity laws are being amended to bring them into line with the European Equal Treatment Directive (2002/73/EC). The changes relate to non-pay benefits during maternity leave, the calculation of bonuses, and the issue of the comparator for bringing sex discrimination claims.
The impetus for change was the High Court decision in Equal Opportunities Commission v Secretary of State for Trade and Industry [2007] IRLR 327 HC. The High Court agreed with the then Equal Opportunities Commission that the Government had, in certain respects, failed to implement the Directive properly into domestic law. The Government's response was to amend certain relevant provisions in the Sex Discrimination Act 1975. It also intends to amend the Maternity and Parental Leave etc Regulations 1999, although these amendments have not yet been published. The changes to the 1975 Act came into force on 6 April 2008. However, other than the removal of the need for a comparator (see below), they apply to women whose expected week of childbirth (EWC) begins on or after 5 October 2008.
No need for a comparator in discrimination claims
The High Court decision required the Government to remove from the sex discrimination legislation the need for claimants to identify a comparator in pregnancy or maternity discrimination claims. No such requirement exists under European law. Previously, s.3A of the Sex Discrimination Act 1975 required a woman to show that she had been treated less favourably than she would have been treated had she not become pregnant or taken maternity leave. She had to compare her treatment to that of a hypothetical comparator who was not pregnant, or who had not taken maternity leave. As of 6 April 2008, when the legislative change came into effect, a woman who is pregnant or taking maternity leave has to show only that she has been treated less favourably and that the grounds for the less favourable treatment were her pregnancy or the fact that she has exercised her maternity leave rights.
Non-pay benefits during ordinary and additional maternity leave
The High Court also held that there should be no distinction between ordinary maternity leave (OML) and additional maternity leave (AML) in terms of a woman's right to continue to receive her non-remuneration terms and conditions of employment. A woman currently on maternity leave is entitled to the benefit of all non-remuneration terms and conditions of employment during OML, whereas during AML she has the benefit of only a limited range of terms. These are related to notice, compensation in the event of redundancy, disciplinary and grievance procedures, membership of a pension scheme, and the implied term of trust and confidence.
In line with this, s.6A of the Sex Discrimination Act 1975 excluded nearly all discrimination claims in relation to bonuses and conditions during the AML period. The recent amendments to the Act will allow women with an EWC that begins on or after 5 October 2008 to bring sex discrimination claims in relation to non-remuneration benefits during the AML period in the same way as those in relation to the OML period. Such women will, therefore, be entitled to the same non-remuneration benefits during AML as during OML. Examples of such benefits include life assurance, private health insurance, gym subsidy, and private use of a company car or mobile phone. Any contractual element of annual leave, in excess of the statutory minimum, will also accrue during AML as well as OML. (The statutory minimum annual leave entitlement already accrues during OML and AML.)
Consequential amendments will have to be made to the Maternity and Parental Leave etc Regulations 1999 to reflect and confirm this new position in relation to non-pay benefits, although these amendments have not yet been published.
Points based Immigration – Q & A
Later this year, the work permit scheme will be abolished and replaced by Tier 2 of the new points-based immigration system. The government has recently published further guidance in relation to Tier 2.
Q When will the new regime replacing the existing work permit scheme come into effect and what preparation should be undertaken by employers in the meantime?
A The new scheme is expected to come into operation in autumn this year. As employers must be registered as sponsors to issue certificates of sponsorship to migrants whom they wish to employ under the new scheme, employers should start the registration process as soon as possible.
As sponsors, employers will have to take on wide-ranging record keeping, reporting and compliance obligations. They therefore need to ensure they have appropriate HR procedures in place to enable them to comply with these obligations. For example, among other things, employers should:
• ensure they are carrying out the required pre-employment checks that employees have the legal right to work in the UK;
• ensure that work permit holders’ personnel files are up to date and that the UK Border Agency has been notified of any significant changes relating to any work permit holder;
• ensure there are appropriate procedures for monitoring absence and for keeping employees’ contact details up to date; and
• review and revise employment contracts to ensure they cover the new obligations and that employees consent to their personal data being passed to the immigration authorities.
Q Will sponsored migrants have to speak English, and are there any exceptions?
A Migrants applying under Tier 2 will need to prove they can speak English. They must come from a country that is regarded as a majority English-speaking country, or provide evidence they have a degree that was taught in English, or have passed an English language test. Employees transferring from an overseas group company to work in the UK company are initially exempt and do not need to prove they speak English until they apply for an extension to their leave after three years in the UK.
Q Who will employers be permitted to issue certificates of sponsorship to?
A Among other things, employers should only issue certificates of sponsorship if:
• the position being filled meets the skills requirements and is at level NVQ 3 or above;
• the person will be paid a market-rate salary;
• the person intends and is able to do the job in question. The sponsor should check the person has the necessary qualifications, experience and professional accreditations needed to carry out the job;
• there is a genuine vacancy that cannot be filled by someone from the UK or the European Union the sponsor has, where required, carried out a resident labour market test by conducting an appropriate advertising process in accordance with the UK Border Agency’s guidelines;
• in the case of an intra-company transfer, the person has worked for the overseas group company for at least the past six months; and
• they are satisfied the person is likely to qualify, bearing in mind the other Tier 2 requirements (see below), and that the person is likely to comply with their conditions of leave to remain in the UK.
Q Will sponsors have to advertise positions before issuing a certificate of sponsorship?
A In almost all cases, the position will need to be appropriately advertised. The main exceptions are if the person is being transferred from an overseas group company where they have worked for at least the past six months, or if the person will fill a shortage occupation. Otherwise, even senior or highly paid positions will need to be advertised.
Q Are there any additional requirements the migrant needs to satisfy?
A Once the migrant has a certificate of sponsorship, they will need to apply for entry clearance before they come to the UK and will need to show they qualify for sufficient points under Tier 2. The majority of the points are awarded for attributes such as prospective earnings and qualifications and for the certificate of sponsorship. Ten points are awarded for English language and the remaining 10 are awarded if the migrant shows they have sufficient funds to maintain themselves and their dependants. To qualify, they will need to show they have at least £800 to maintain themselves and £533 for each dependant.
Contact Us
Morgen HR Ltd
T: 01993 880109
E: helen@morgenhr.co.uk
W: www.morgenhr.co.uk
HR & Employment Law Forum
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