If
you want to employ people from outside the UK, you have to ensure they
are allowed to work here before taking them on. Known as 'section 8'
checks, they require you to go through a number of hoops, set out in
the following five basic steps.
Step one - the documentation
The person must show you one of the following original documents to prove their entitlement to work in the UK:
- A passport showing that they are a British citizen or have a right of abode here
- A national passport or ID card showing that they are a national of a European Economic Area (EEA) country or Switzerland
- A residence permit issued to a national from an EEA country or Switzerland
- A
passport or other document issued by the Home Office with an
endorsement stating that they have a right to reside in the UK as the
family member of an EEA or Swiss national resident here
- A
passport or other travel document endorsed to show that they are exempt
from immigration control, can stay indefinitely in the UK, or have no
time limit on their stay
- A
passport or other travel document endorsed to show that they can stay
in the UK, and are allowed to do the type of work you are offering (as
long as it does not require a work permit)
- An Application Registration Card issued by the Home Office to an asylum seeker stating that they are allowed to work here.
Step two - checking the documents
You have to make some basic checks on the documents, which must be originals, as follows:
- Does the person look like the person in the photograph?
- Does the person look the same age as the person in the photo?
- Are the expiry dates valid?
- Is the job applicant allowed to do the type of work you are offering?
- Is the same name used on all the documents?
Step three - saving the documents
When
you have checked the person's documents and are satisfied that they are
genuine, you must save and store them securely to ensure that the
information cannot be altered, deleted or overwritten.
Step four - registration of 'A8' workers
If
your prospective employee is from the Czech Republic, Estonia, Hungary,
Latvia, Lithuania, Poland, Slovakia or Slovenia (known as A8 workers),
then they need to register with the Worker Registration Scheme within a
month of starting work for you.
It
is the worker's responsibility to apply, but you must provide them with
evidence of their employment. Once they are registered, you should keep
a copy of the certificate. If the Home Office refuses to register them,
you have to stop employing them straight away.
If they say they are exempt from the scheme, you still need to ask them for evidence, such as:
- a residence permit confirming they are an EEA national or from Switzerland
- a
passport or travel document with an endorsement stating that they are
also a dual national of the UK, Switzerland or one of the EU/EEA
countries that is not an A8 country
- a
national passport or travel document containing a valid endorsement
which states that they are a family member of an EEA or Swiss national
- a
passport or travel document with a valid endorsement showing that they
have Indefinite or Exceptional Leave to Enter or Remain in the UK, or
have been granted Limited Leave to Enter or Remain with no immigration
restrictions on employment
- A valid Seasonal Agricultural Workers Scheme (SAWS) document, or
- A
P60 or Worker Registration Scheme document for A8 nationals who have
been employed legally and without interruption in the UK for 12 months.
Step five - registration of Romanian and Bulgarian workers
In
addition to section 8 checks, you also have to check whether workers
from Romania and Bulgaria (known as A2 workers) have the right
authorization, as follows:
- a
document issued before 1 January 2007 that grants Leave to Enter or
Remain in the UK and entitles that person to do the work that you are
offering, for example, a work permit
- a seasonal agricultural work document, or
- an accession worker card
If
they obtained their work permit after 1 January 2007, the employee will
also need to apply for an accession work card before they can start
work, or they may present you with one of the following:
- A blue authorisation certificate showing full access to the UK labour market
- A yellow authorisation certificate confirming they are here as a student and can work for 20 hours a week
- A UK residence permit showing that a person has leave to remain and has permission to work
- An Indefinite Leave to Enter or Remain endorsement in their passport
- A no time limit stamp in their passport
If
you follow all the steps in this process, then you will have a
statutory defence against prosecution for employing an illegal migrant
worker.
For more information, go to: www.employingmigrantworkers.org.uk/index.html
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The
law says that parties to a dispute can have "without prejudice"
discussions so that any attempt at settlement cannot be used against
them if the dispute ends up in court. However, the Court of Appeal said
in Brunel University & another v Vaseghi & Webster that employers may lose their right to claim that the discussions were "without prejudice" in certain circumstances.
What happened?
Professor
Veseghi and Mrs Webster brought race discrimination claims against the
university. In each case, the parties agreed to "without prejudice"
discussions before the start of the actual tribunal hearings.
While
the cases were being appealed, the vice-chancellor wrote two articles
in the university newsletter about two, unnamed, AUT cases. He later
stressed that the university would "defend its reputation against
unfounded allegations, especially when these are accompanied by
unwarranted demands for money".
Professor
Vaseghi and Ms Webster then lodged claims for victimisation. In its
response to those claims, the university attached the report of the
grievance hearings referring to the settlement discussions, but
objected to statements being included by the claimants, saying it
breached the "without prejudice" rule.
The
tribunal decided that references to the settlement discussions in the
statements of Professor Vaseghi and Ms Vadagama were inadmissible, but
that references in the grievance panel's reports were admissible.
The
EAT, however, said that both parties had not maintained the
confidentiality that "without prejudice" privilege was intended to
protect. It allowed Professor Vaseghi’s and Ms Webster's cross-appeal
and dismissed the university's appeal.
.
The Court of Appeal agreed and said that, in the vast majority of
internal grievance hearings "there will be no question of waiver if the
parties mention matters covered by 'without prejudice' privilege."
However,
because of the particular and unusual circumstances of this case "where
the proceedings were in effect a trial of the victimisation issues by
an independent panel and where both parties gave or called evidence of
the previous negotiations, the EAT was entitled to conclude that
privilege had been bilaterally waived."
It
also said that once both sides had referred to the "without prejudice"
discussions in both the claimants' application form and the employer's
response form, they had all effectively waived their right to claim
that the discussions were privileged.
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If someone is forced to resign, the courts have established that is effectively a dismissal. In Sandhu v Jan De Rijk Transport Ltd,
the Court of Appeal said that by agreeing terms to end his employment,
Mr Sandhu had done no more than salvage something from the inevitable
fact he was going to be dismissed.
What happened?
At
the end of November 2002 Mr Sandhu was summoned to a meeting on 6
December but was not told in advance what it was about. He claimed that
the senior director of operations opened the meeting by telling him
that he was being dismissed.
Both
parties agreed the terms of a letter that day, stipulating that Mr
Sandhu's contract would not be terminated until 1 April 2003, although
he stopped work for them on 12 December 2002. Mr Sandhu then wrote
asking to appeal the decision and stating categorically that he had not
agreed to leave. The company refused to discuss the matter further, and
Mr Sandhu claimed unfair and wrongful dismissal.
The
tribunal said that Mr Sandhu had resigned of his own free will. It was
clear that he was fully aware of the company's concerns leading up to
the meeting and that was why he had negotiated a package that was
financially beneficial to him. The Employment Appeal Tribunal agreed.
The
Court of Appeal, however, said that "it simply cannot be argued that he
[Mr Sandhu] was negotiating freely. He had had no warning that the
purpose of the 6 December meeting was to dismiss him; he had had no
advice, and no time to reflect. In my judgment, he was doing his best
on his own to salvage what he could from the inevitable fact that he
was going to be dismissed. This, in my judgment, is the very antithesis
of free, unpressurised negotiation."
It
remitted the case to a different tribunal on the basis that Mr Sandhu
had been dismissed and that it was procedurally unfair.
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HOLIDAY INCREASE
Following
an earlier consultation on statutory holiday entitlement, the
Government has now published regulations increasing the number of
holidays from 20 to 24 from October this year. These will be increased
to 28 days from April 2009.
The regulations state that:
- To
encourage early implementation and to simplify arrangements, companies
who offer their workers 28 days leave or more by 1 October 2007 (and
meet certain other standards), will not have to abide by the new
legislation, as long as they continue to meet these standards
- As
a transitional measure, companies will be allowed to "buy out" the
additional leave entitlement (the four extra days) introduced in
October 2007, but only until 1 April 2009
- All part-time workers will be entitled to the extra holidays on a pro-rata basis
The DTI will set up an online calculator to make it simpler for everybody to work out their new holiday entitlement.
To download a copy of the consultation response, go to: www.dti.gov.uk/files/file39592.pdf
WHERE THERE'S SMOKE
As
if you needed reminding - but the new regulations outlawing smoking in
enclosed public places and workplaces came into force on 1 July 2007 in
England.
As such, you are required
to put up no-smoking signs in a prominent position at all entrances to
your premises. You must also take reasonable steps to ensure that no
one smokes in your workplace. A failure to comply carries a maximum
fine of £2,500.
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