Having fought his campaign on the promise to “get Brexit done” it is now certain that Mr Johnson will take the UK out of the EU. With a 78 seat majority Mr Johnson plans to bring his Withdrawal Agreement Bill back to the commons next Friday and pave the way for the UK to leave the EU on 31 January 2020. Given his clear majority, it now seems certain we will leave with the deal currently negotiated.

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After their promises to “take back control” of the UK’s borders the Conservative party are expected to impose stricter immigration requirements and prioritise those migrating into key sectors such as the NHS and the technology industry.

What will happen to EU nationals?

Provided the deal is agreed, Free Movement of people will continue to operate as usual during the ‘implementation period’ from exit day (31 January 2020) to 31 December 2020. During this time EEA/Swiss nationals and their family members will be able to enter, reside and work in the UK on the same basis as before. The future relationship between the UK and the EU will be negotiated during the implementation period with a new immigration system promised to be in place from 1 January 2021.

The details of this new immigration system remain unclear but with the Conservative party opposed to continuing free movement of any kind it is unlikely that EU citizens will be able to enter and reside in the UK with the same rights as before. Whilst we have some principles for the new immigration system, designing and establishing it ready for use within a year is a mammoth task for already stretched civil servants. If Mr Johnson requires an extension to the implementation period he must request it by 30 June 2020. An extension could be granted for up to another two years.

Once the Withdrawal Agreement has been ratified EEA/Swiss nationals will still be eligible to apply under the EU Settlement Scheme provided that they enter the UK before the end of 31 December 2020. The deadline for those eligible to apply under the EU Settlement Scheme, is 30 June 2021. However, family members of EEA/Swiss nationals registered under the EU Settlement Scheme will be able to apply anytime with no deadline, provided that the relationship existed before 31 December 2020 and continues to exist.

Existing Points Based System

Changes to the Tier 2 sponsorship route can be expected under a Conservative government. It is likely that many of the changes suggested in the Immigration White Paper published in June 2018 will be put into place; these include abolishing the Resident Labour Market Test, potentially lowering salary thresholds and opening up Tier 2 to lower skilled workers, in part to address the predicted skills shortages when Free Movement comes to a halt. Given that Tier 2 may be significantly expanded, we strongly advise that companies who have a Sponsor Licence ensure that they are fully compliant with the reporting and record keeping requirements as they will likely rely on it more in the near future.

The Tier 1 (Exceptional Talent) (to be renamed “Global Talent”), Start-up and Innovator visas will continue to be supported by the government.

New Visa routes

The promise of an Australian style points based system may come true for all foreign nationals looking to enter the UK after Brexit. This new system would see points attributed to migrants with ‘desirable’ skills, such as English language, and academic qualifications with more credit being given to younger applicants.

A new NHS visa route is likely to go ahead which would provide a faster, cheaper application process for qualified medical professionals with job offers for the NHS. This visa would be subject to stringent training and English language requirements but would be put in place to address the current job shortages and mitigate any loss of EU medical professionals after Brexit.

Two year visas for graduates who studied at universities in the UK have also been proposed, allowing graduates to apply for and secure entry level jobs without having to be sponsored by an employer. Although touted as a new visa route, it is almost identical to the previous Tier 1 Post Study Worker visa that was removed as part of the Conservative government’s mission to reduce net-migration.

Asylum and Refugees

The Conservatives have pledged to continue to grant asylum and support to refugees fleeing persecution, with ‘the ultimate aim of helping them to return home if it is safe to do so.’ But balanced by their promises to crack down on illegal working and “take back control” it is unlikely that this is the end of the “hostile environment” promoted by the Home Office under Theresa May.

What next?

Getting Brexit done will be the top priority for the Conservative government and we can expect updates on the Withdrawal Agreement by Christmas. With immigration playing such a key role in the Brexit debate it is likely that the Conservatives will want to evidence their “taking back control” with a strong stance on immigration. Expect more updates on new immigration policies in the new year as the Conservatives settle into their comfortable majority and immigration beyond Brexit becomes the focus.

For information on what a Conservative Government means for employment law, you can read our full article here. 

Related Item(s): BREXIT, Immigration & Global Mobility

Author(s)/Speaker(s): Andrew Osborne, Naomi Hanrahan-Soar, Ella Skinner,

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What are the key headline policies on immigration?

The Conservative party’s General Election campaign has undeniably pinned itself on one key aim: to Get Brexit Done. After Brexit, the Conservatives promise to ‘take back control’ of the UK’s borders by imposing stricter immigration requirements and prioritising the development of key sectors, including the technology industry and the NHS.

In stark contrast, the Liberal Democrats pledge to stop Brexit and to invest the £50 billion ‘Remain Bonus’ in improving public services and tackling inequality. The manifesto promises the transformation of the UK’s immigration system from one ‘in desperate need of reform’ to a ‘compassionate and effective’ regime.

As something of a middle ground, Labour has pledged to give the UK a final say on Brexit by allowing the public to choose to either remain or leave the EU under its future deal. Like the Liberal Democrats, Labour intends to end the hostile environment in favour of an immigration system built on human rights.

Intentions aside, the question remains: what would each regime offer in practice?

What protection would each party provide for EEA and Swiss nationals in the UK?

While the Liberal Democrats promise to stop Brexit and preserve UK-EU freedom of movement, under the Conservatives the EU Settlement Scheme would continue to allow EEA and Swiss nationals resident in the UK before Brexit day to secure their existing rights to live and work here. The Conservatives have pledged not to extend the implementation period, which would either put considerable pressure on the Home Office to have the post-Brexit immigration system ready by 1 January 2021 or necessitate interim immigration arrangements for EEA/Swiss nationals and their family members.

Labour has meanwhile promised that any deal with the EU would seek to uphold the benefits of free movement as far as possible, both in social and economic terms, for UK, EEA and Swiss nationals alike.

What does a post-Brexit immigration landscape look like under each party?

The Conservative government has made no secret of its intention to implement an Australian-inspired Points-Based system for all foreign nationals after Brexit. This approach would see points attributed to migrants with ‘desirable’ skills, such as a good grasp of English, good character and good academic qualifications.

The Liberal Democrats’ remain-centric agenda, on the other hand, hopes to avoid a post-Brexit immigration landscape altogether. They instead pledge to reform the current immigration system and abolish the Conservatives’ hostile environment in favour of a merit-based approach. They also promise to establish a ‘Training Up Britain’ programme to enhance migrant skills, and undertake to implement stricter data protection controls through limiting Home Office access to applicants’ personal information.

Labour pledges to implement a ‘humane’ immigration system which scraps the 2014 Immigration Act and focuses on filling positions in shortage occupations. It would also aim to end the deportation of family members of those entitled to be in the UK and get rid of the minimum income requirement.

All parties demonstrate an intention to ensure that any future immigration system would prevent any repetition of the horrors suffered by the Windrush generation.

What controls on entry are proposed?

The Conservatives have promised to use post-Brexit freedoms to enforce stricter criminality standards on migrants. They also intend to ‘cut’ the number of foreign nationals currently serving in British prisons and to increase penalties as a disincentive.

The Liberal Democrats would instead focus on investment in officer training methods and technology to prevent illegal entry, assist asylum seekers and combat the trafficking of people and illegal goods.

Who would be prioritised?

The Conservatives’ vision of an Australian points-based system would inherently prioritise highly-skilled migrants, making good on their promise to attract the ‘best and brightest’ talent from around the world to the UK labour market. This intention would be bolstered by an emphasis on two specific routes: NHS workers and leaders in the science and technology fields.

The NHS visa would provide for a direct route for qualified doctors, nurses and allied health professionals with job offers from the NHS to come to the UK. This visa route would be subject to stringent training and English language requirements, but would allow for fast-track entry and reduced visa fees for new NHS workers and their families.

The Conservatives also promise to actively recruit leaders in science and technology fields from around the world in order to bolster the UK’s technological progress. The Tier 1 (Exceptional Talent), Start-up and Innovator visas would continue to be supported by the government.

The Liberal Democrats, however, would implement a flexible merit-based system which removed powers from the Home Office rather than focussing on any particular industry.

Both parties would see an extension of current leave granted to students after graduation from university to two years.

A Labour government would prioritise bringing in migrants with profiles that can fill the skills shortages present in public services and the wider economy.

How has each party approached asylum and refugee policies?

The Conservatives have pledged to continue to grant asylum and support to refugees fleeing persecution, with ‘the ultimate aim of helping them to return home if it is safe to do so.’

Labour claims that the current Conservative government has fallen short of international standards in its treatment of refugees and asylum seekers. In its aim to raise this standard, a Labour majority would resume rescue missions in the Mediterranean, put an end to subpar refugee camps in France and establish ‘safe and legal routes’ for asylum seekers. They would also give refugees the right to work and access public services once in the UK.

On a similar vein, the Liberal Democrats’ proposed system would seek to protect the dignity of refugees and asylum seekers in the UK. The manifesto points to the fact that 40% of asylum refusals are overturned on appeal in support of its commitment to provide safe and legal routes to sanctuary. More specifically, the party has pledged to give asylum seekers the right to work no more than three months after application, provide free basic English lessons and to move asylum policymaking powers away from the Home Office.

We also explore what the main parties are pledging on employment issues as part of their election manifestos. The full article can be read here.

Related Item(s): Immigration & Global Mobility, BREXIT

Author(s)/Speaker(s): Joanna Hunt, Bronte Cullum,

Despite the dominance of Brexit, employment issues are one of the main election battlegrounds for all of the major political parties. There is a particular focus on current hot topics, including insecure work and the gig economy, addressing gender (and other) pay gaps, and new mechanisms for enforcing employment rights.

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The Conservatives are largely relying on plans already being progressed, while the Labour Party under Jeremy Corbyn is promoting its traditional reputation on workplace rights, with a significantly pro-employee agenda and some radical proposals aimed at strengthening the influence of trade unions. This article also covers the key employment measures that have been tabled by the Liberal Democrats and the Green Party.

Brexit

The potential impact of Brexit on employment rights inevitably provides an important backdrop to the parties’ various pledges.

The Conservative manifesto focuses heavily on “getting Brexit done”, with a commitment to bringing the Withdrawal Agreement Bill back to Parliament before Christmas Day in the expectation of MPs ratifying it prior to the UK leaving the EU on 31 January 2020. The Conservatives also pledge to rule out extending the transition period beyond 31 December 2020, as they aim to negotiate a trade deal with the EU as soon as possible. This rapid timetable sits alongside a pledge to legislate to “ensure high standards of workers’ rights”. Although the full terms of a new relationship with the EU and its impact on employment law are uncertain, the Conservatives are committed to the UK being in “full control”, with no single market, customs union or role for the European Court of Justice (“ECJ”) post-Brexit.

Labour’s manifesto focuses on securing a new deal with the EU, stating they will secure “robust and legally binding” protections for workers’ rights and ensure that level-playing field protections are maintained. This suggests a clear intention to keep UK employment law aligned with EU law, although there is no detail on how this would work in practice and the extent to which the UK would continue to be bound by rulings from the ECJ.

The Liberal Democrats have a very clear “stop Brexit” position, meaning that employment rights would remain influenced by EU law in the same way as they are at present. Similarly, the Green Party is campaigning for remaining in the EU and so proposes no change to workers’ rights deriving from EU law.

Employment status and protections

Insecurity and zero-hours contracts

Insecure work and regulation of zero-hours contracts is another topical and contentious area addressed by all the main parties.

The Conservative manifesto relies on steps that have already been taken or are already planned, referring to the scrapping of exclusivity clauses in zero-hours contracts. It also states that the Conservatives will ensure workers have the right to request a more predictable working contract – something that was included in the Government’s Good Work Plan and is also required by the EU Transparent and Predictable Working Conditions Directive. The manifesto refers to other unspecified “reasonable protections”, which may refer to other issues already under consultation such as rights to reasonable notice of work schedules and compensation for shift cancellation.

Labour says it will ban zero-hour contracts, without providing further detail on how this would be done. The law would be “strengthened”, so that those who work regular hours for more than 12 weeks would have a right to a regular contract reflecting those hours. Labour will also ensure workers are paid for cancelled shifts and breaks between shifts, and require “proper” notice for changes in hours. Wider plans in the Labour manifesto to tackle insecurity include:

• Giving “everyone” full rights from day one on the job.
• Strengthening protections for whistleblowers and rights against unfair dismissal for all “workers”.
• Creating a single status of “worker” for everyone apart from those genuinely self-employed in business on their own account. Taken together with the above changes, this suggests all workers (not just employees) would be protected from unfair dismissal with no need for a qualifying period of employment, and potentially benefit from other rights currently applicable to employees such as redundancy and maternity pay.
• Banning unpaid internships.
• Increasing protection against redundancy for people “wherever they work”. It is not clear whether this means a general change in redundancy law, or something aimed at particular types of workplace.

The Liberal Democrats would establish a “powerful” new Worker Protection Enforcement Authority to protect those in “precarious” work, although the manifesto provides further information about who this would apply to or how it would work in practice. They would also modernise employment rights to make them fit for the age of the gig economy by: establishing a new “dependent contractor” status (as suggested in the Taylor Review); setting a 20% higher minimum wage for those on zero-hours contracts in times of normal demand; giving a right to request a fixed-hours contract after 12 months of zero-hours or agency work; and reviewing pension rules. The Lib Dems would also shift the burden of proof in disputes about employment status from the individual to the employer.

The Green manifesto includes ensuring that gig economy workers always receive at least the current minimum wage and have job security, sick leave, holiday pay and pension provision.

Working time

Labour is the only one of the major parties to address working time. The manifesto states that they will tackle excessive working hours and reduce average full-time weekly working to 32 hours across the economy within a decade. Steps to achieve this include ending the ability to opt-out from the 48 hour working week, enforcing working-time rules, setting up an independent Working Time Commission to advice on increasing holiday and reducing hours, and mandating bargaining councils to negotiate reductions in working time.

In addition, Labour would keep restrictions on Sunday trading in place and “review” unpaid overtime. They would also create four new public holidays – St George’s Day, St Andrew’s Day, St David’s Day and St Patrick’s Day.

Enforcement of rights

The Conservatives state they will create a single enforcement body to crack down on employers abusing employment law, which follows Taylor Review recommendations and a government consultation published last July. The new body will protect worker’s rights and aim to prevent workers from being exploited for example, employers taking their tips or refusing sick pay. The Conservatives would also introduce legislation to protect pension pots from being plundered by “reckless bosses”.

Labour maintains that strong trade unions are the most effective way to enforce rights at work, but they would also introduce a new, unified Workers’ Protection Agency to enforce rights, including the Real Living Wage. This new agency would have extensive powers to inspect workplaces and bring prosecutions and civil proceedings.

On the issue of Employment Tribunal (“ET”) fees, Labour expressly commit to keeping ETs free and “extending” their powers (without saying how). They would also introduce new “Labour Courts”, with a stronger role for people with industrial experience on panels. The manifesto does not explain whether these would replace or sit alongside the existing ET system, or with which types of case they would deal.

Equality and human rights

Discrimination

All of the main manifestos promise to extend protection against discrimination in different ways.

The Conservative manifesto alludes to having “reformed redundancy law so companies cannot discriminate against women immediately after returning from maternity leave”. (This is in fact only a planned reform, which is limited to a priority for alternative employment in a redundancy situation.) The Conservatives would also aim to address the “complex reasons” why some groups earn less at work, although it is not clear what strategies and reforms this would involve.

In relation to disability in the workplace, the Conservatives would support disabled people by, among other things, publishing a National Strategy for Disabled People before the end of 2020 to improve the benefits system and access to opportunities for disabled people in terms of jobs (as well as housing and education).

Labour say they will require all employers with over 250 employees to obtain “government certification” on gender equality or face further auditing and fines, with the threshold lowering to workplaces with 50 employees or more by 2020. They would reintroduce the right to protection from harassment by third parties, and enable “positive action” for recruitment to roles where employers can justify the need for more diversity. It is not clear how this would fit with current EU rules which preclude positive action except in strictly limited tie-break situations.

Labour also focuses on disability in the workplace, and would: require all employees be trained to better support disabled people; introduce a right to disability leave recorded and treated separately from sick leave; and recommend a new code of practice on reasonable adjustments including timescales for adjustments to be implemented.

Equality commitments in the Liberal Democrat manifesto include: extending protection for gender reassignment to cover gender identity and expression; recognition of non-binary gender identities; and outlawing caste discrimination. The Greens would tackle gender inequality by setting a 40% quota for women on major company boards, and support employers to “explore the benefits” of menstruation and menopausal leave.

Pay gap reporting

The Conservatives make no new promises to build upon or reform the gender pay gap reporting rules. They have also not mentioned any concrete plans to introduce publication of pay-gap data in relation to ethnicity (which has been subject to consultation), LGBT+ or disability.

Labour would make the state rather than individual employees responsible for enforcing equal pay legislation through their new Workers’ Protection Agency (above), which would work with HMRC. They would extend pay gap reporting to BAME groups, tackle pay discrimination on the basis of race, and introduce mandatory disability pay gap reporting for employers with over 250 employees.

The Liberal Democrats promise to build on existing gender pay gap reporting rules by also requiring larger employers to monitor and publish data on gender, BAME and LGBT+ employment levels and pay gaps. They would also make unconscious bias training a condition receiving public funds.

The Greens would require all large and medium-size companies to carry out equal pay audits and redress any inequality uncovered, and change the law to make it easier to take action against employers in unequal pay cases.

Work and families

The Conservatives say they will “encourage” flexible working arrangements, and consult about making this the default unless employers have a “good reason”. There are no further details on how this would differ from the current right to request flexible working. The manifesto includes a commitment to legislate to allow parents to take extended leave for neonatal care (following a consultation published in July). The Conservatives also promise to look at ways to make it easier for fathers to take paternity leave and extend the entitlement to leave for unpaid carers to a week.

Labour’s proposals in this area include extending the period of maternity pay to 12 months, doubling paid paternity leave to four weeks and increasing paternity pay. They would also: offer statutory bereavement leave after the loss of close family members; review family-friendly rights including rights to respond to family emergencies; and introduce a right to ten days’ paid leave for survivors of domestic abuse.

On flexible working, Labour would give this “right” to all workers, but again it is not clear how this would differ from the current right to request flexible working, or how any new right would fit with business needs. The manifesto later refers right to “request” flexibility over hours from the first day of employment, rather than an absolute right. Labour also says all “large” employers would be required to have flexible working, including a menopause policy.

The Liberal Democrats would also make flexible working open to all from day one in the job, with employers required to advertise jobs accordingly unless there are significant business reasons why this is not possible. Other key Lib Dem policies on family rights include increasing paternity leave from two to six weeks, giving parental leave rights from day one of employment, and requiring organisations to publish parental leave and pay policies.

Pay and corporate governance

National minimum wage

The Conservatives plan to increase the National Living Wage to two-thirds of average earnings – currently forecast at £10.50 an hour – and extend it to those over the age of 21. (It currently applies only to those aged 25 and over.) They claim this would offer an average pay rise of £4,000 per year for four million people by 2024.

Labour say that they would “rapidly” introduce a “Real Living Wage” of £10 an hour for all workers aged 16 or over. The Greens would increase the living wage even further, to £12 an hour for all workers from age 16.

The Liberal Democrat manifesto focuses on setting a “genuine” living wage. They would establish an independent review to consult on how to do this across all sectors, and encourage all public sector employers to pay the living wage.

Worker representation and executive pay

The Conservative manifesto does not detail any specific commitments to workers of a stake in the companies for which they work, focusing instead on helping small businesses and entrepreneurs (for example, by increasing the Employment Allowance for small businesses). In terms of executive pay, the Conservatives say they will improve incentives to attack the problem of excessive executive pay and rewards for failure, by strengthening the UK’s corporate governance regime.

The Labour manifesto promises to give workers both a stake in the companies they work for and a share of the profits they help create, by requiring large companies to set up “Inclusive Ownership Funds”. Under this concept, up to 10% of a company would be owned collectively by employees, with dividend payments of up to £500 a year per employee. Labour would also require one-third of boards to be reserved for elected worker-directors, who would be given greater control over executive pay.

The Liberal Democrats would give staff in listed companies with more that 250 employees a right to request shares in the company. They would also strengthen staff participation in decision-making, including on remuneration committees, and require all UK-listed companies and those with over 250 employees to include at least one employee representative on their board.

The Greens would introduce a new law that the maximum wage paid to any member of staff should not exceed ten times that paid to the lowest paid worker in the organisation. They would also ban any bonus payment exceeding the annual wage of the lowest paid worker.

Trade unions

The Conservative manifesto does not contain anything about trade unions, except to state that a minimum service will be required during transport strikes because “it is not fair to let the trade unions undermine the livelihoods of others”.

The Liberal Democrat manifesto pledges to strengthen trade unions’ ability to represent workers effectively in the modern economy, including a right of access to workplaces (with no further details given). The Greens would require all employers, whatever their size, to recognise any union chosen by the workforce to represent them – but there is no information on how this would work in practice or how it would fit with the current system of union recognition.

The Labour manifesto champions the trade union movement’s historic achievements, stating that shifting the balance of power back towards workers is needed to achieve decent wages, security and dignity at work. The various significant proposals in support of unions and collective bargaining include:

• Establishment of a new “Ministry for Employment Rights”, which would be involved in rolling our sectoral collective bargaining across the economy. The stated aim is to bring workers and employers together to agree legal minimum standards on a wide range of issues, such as pay and working hours, with every employer in the sector required to follow that agreement. This radical proposal would effectively introduce compulsory collective bargaining to all workplaces, representing a huge shift from the current system.
• Allowing unions to use secure electronic and workplace ballots, and removing “unnecessary” restrictions on industrial action (without saying what those are).
• Strengthening and enforcing unions’ right of entry to workplaces for activity and recruitment, banning “union-busting”, strengthening protection of union representatives and members, and ensuring adequate time off for union duties.
• Reviewing and “simplifying” the rules on union recognition, and enforcing all workers’ rights to union representation at work.
• Repeal of “anti-trade union legislation”, including the Trade Union Act 2016 (which among other things raised ballot thresholds and increased regulation of industrial action), combined with creation of “new rights and freedoms” for unions to “help them win a better deal for working people”.

Scottish National Party

The SNP manifesto also contains a number of employment law proposals. The most significant of these, listed as one of the key pledges at the start of the document, is the plan to press for devolution of employment law so that the Scottish Parliament can “protect workers’ rights, increase the living wage and end the age discrimination of the statutory living wage”. 

The SNP says its MPs will demand tougher action to close the gender pay gap, including introducing fines for businesses that fail to meet agreed standards, and back moves to introduce greater worker representation on company boards. In addition, the manifesto contains several proposals about parental rights, including increases to maternity pay, an increase in the length of paternity leave and the pay for it, and an additional 12 weeks of shared parental leave. 

Although the manifesto is expressly based on devolution of employment law, if the SNP ends up holding the balance of power after the election it is possible that some of these proposals will also be pushed for country-wide.

Conclusion

The length of this article testifies to the extensive coverage of employment issues in the main parties’ manifestos, no doubt reflecting their aspirations to be perceived as having workers’ interests genuinely at heart and thereby attracting the coveted “blue-collar” vote. This is, of course, traditionally the mantle of the Labour Party, whose radical pledges at this election would transform the UK’s legal framework for industrial relations and the scope of employment protection.

If it is the Conservatives who prevail on 12 December and form the next government, it will be more “business as usual” yet still a relatively busy time ahead for those of us concerned about employment issues, with many important employment reforms and proposals in the pipeline.

Coming full circle, however, the question of whether, when and on what terms the UK ceases its membership of the EU will in many ways overshadow all the specific manifesto pledges outlined above. Throughout next year and beyond, the outcome of Brexit is likely to be the most influential factor in the long-term future of UK employment regulation, whoever wins the election.

We also explore the proposed immigration regime and policies which each of the main parties are proposing as part of their election manifesto. The full article can be read here.

Related Item(s): Employment, Employment

Author(s)/Speaker(s): Hazel Oliver, Terrel Douglas,

Lewis Silkin LLP has today announced the appointment of Victor Timon as a partner in the firm’s Dublin office, marking the launch of the firm’s Commercial, Technology and Intellectual Property practice, and the expansion of the Data & Privacy practice, in Ireland.

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Victor brings over 35 years’ worth of expertise in commercial, technology, IP and data protection law and joins Lewis Silkin from Maples, where he was Head of Commercial Technology and Data Privacy. Victor works across a wide-range of sectors and has particular experience advising innovative, IP-driven organisations, notably in the technology, cloud and telecoms industries.

Victor will be bolstering Lewis Silkin’s practice in Dublin by expanding its wide range of services within the Irish, and wider EU, market.

This is the latest stage in the growth of Lewis Silkin’s IP practice and follows the acquisition of patent and trade mark firm Ablett & Stebbing in July, with Lewis Silkin creating a one-stop-shop capable of servicing all IP needs from creation through to protection, management and enforcement across multiple jurisdictions.

Lewis Silkin’s Dublin office launched in 2018, and is already recognised for employment, immigration and data protection work led by partners Siobhra Rush, Linda Hynes and Sean Dempsey.

Giles Crown, Joint Managing Partner at Lewis Silkin, commented:

“Businesses are becoming ever more cognisant of the importance of IP, technology and data as assets and are rightly demanding expert advice on the full-range of issues. With Dublin becoming an increasingly important location for innovative businesses, particularly in the technology sector, providing unfettered access to European markets made perfect sense for us to leverage our footprint there for our clients’ advantage.

“Victor is a terrific addition to our Dublin team and is the ideal person to lead on Lewis Silkin’s offering in Ireland. We look forward to working with him.”

Victor Timon, Partner at Lewis Silkin, said:

“Lewis Silkin has great plans for Dublin and I’m very excited to play my part in developing the firm’s commercial, technology and data protection practices in Ireland. Drawing on the firm’s longstanding expertise in IP and technology, backed up by the wider team based in the UK, this new offering will further enhance Lewis Silkin’s position as the law firm of choice for innovative, IP-rich businesses.”

Type: Press Release

Related Item(s): Commercial, Technology & Communications, Brands & Intellectual Property, Data & Privacy, Dublin

Author(s)/Speaker(s): Victor Timon,

In an article for freemovement, Joanna Hunt discusses the new Graduate Immigration Route and whether it will live up to expectations.

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To read the full article please visit the freemovement website.

 

Type: Press

Related Item(s): Immigration & Global Mobility

Author(s)/Speaker(s): Joanna Hunt,

This study of the impact of Green politics on global employment law is based on a survey of 13 jurisdictions. It was produced in collaboration with Ius Laboris member firms in those countries.

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We live in turbulent political times, with the old political order being overturned and new brands of politics gaining traction in many parts of the world. In our previous article on the rise of populism and its potential impact on employment law[i], we discussed the global breakdown of centre-left and centre-right political dominance and the advent of more complicated and fragmented politics involving the emergence of (predominantly right-wing) populist parties and movements.

At the same time, this fragmentation is heralding the rise of Green political parties in many countries. In this second article, we examine their growing influence and the potential impact this might have on employment laws around the world. Is the climate becoming ripe for Green ideals to have a meaningful impact on the world of work?

The rise of Green politics

The European Parliament (“EP”) elections in May 2109 highlighted the advance of Green politics in Western Europe. Green parties secured more than 10% of the vote[ii] in ten countries[iii] (and as high as 20% in Germany). In all but one of those countries[iv], this vote marked a significant rise in support from the previous EP elections in 2014. In Germany and Finland, the Green Party came second in the polls.

The increasingly splintered nature of domestic politics often results in coalition governments, in which a Green party with 10% to 20% of the vote can expect to play a significant role[v]. While perhaps the most obvious coalition partners for Greens would be left-wing socialist parties, in practice they have a range of political bedfellows[vi].

In the EP, the Green Parties have 62 MEPs and, in alliance with the regional parties within the European Free Alliance (“EFA”), represent the Parliament’s fourth largest group. Outside the European Union, in Iceland, the Left-Green Movement gained 17% of the vote and was the second highest party in that country’s 2017 elections. It now forms the lead party in the coalition governing Iceland and Katrin Jakobsdottir, a member of the Movement, is the country’s prime minister. In Switzerland, the two Green parties took more than 20% of the vote in the recent 2019 parliamentary election.

Beyond Europe, Green parties have been advancing in countries including Canada, Australia and New Zealand. In the October 2019 election in Canada, the Green Party gained about 6.5% of the national vote and won an extra seat in parliament[vii], and in New Zealand Jacinda Ardern’s Labour Party has relied in part on the Green Party in a confidence-and-supply arrangement to remain in power since the 2017 general election. In Australia, the Greens maintained 10% of the primary vote at the general election earlier this year and, in an attempt to capture part of the growing Greens vote (particularly in metropolitan areas), the centre-left Australian Labour Party campaigned (unsuccessfully) on a number of traditionally Green policy positions[viii].

The Green vote tends to be highest amongst the younger voters. For example, a third of Germans below the age of 30 voted for the Green Party in the last EP elections – way ahead of any other party there. It is not yet clear how far the disproportionate support for Green parties among today’s younger voters will be sustained as they grow older, or whether they will change their allegiances over time. 

Escalating concerns about the global climate crisis provide another obvious reason to predict an increasing influence of Green politics. The extent to which this will result the continuing rise of Green parties, as opposed to the more mainstream political parties embracing a greener political agenda, remains to be seen.

One can further envisage a trend, at some point, towards Green politics as part of a backlash against the current explosion of populism[ix]. While politics a decade on may well look very different from today, it would be no great surprise to witness the popularity of Green parties increasing further over the next ten years. The impact on employment law could be seismic.

In order to assess trends across countries with popular Green parties, we canvassed Ius Laboris^[x] law firms in ten EU member states which saw Greens gain at least 10% of the vote at the last EP elections, plus the three Commonwealth countries already mentioned (Canada, Australia and New Zealand).

Green parties and employment law

Most of the attention given to Green parties inevitably concentrates on their environmental and climate-related priorities, but they generally advocate reform in other areas, including workplace rights. In the years ahead, this could be a catalyst for some significant changes in employment regulation and the balance of power between employers, trade unions and workers.

We should acknowledge that a Green party in power with a majority, and an unfettered ability to introduce its own agenda, is probably some way off – and any coalition of which a Green party was a member would most likely water down the latter’s most radical ideas. It is instructive, nonetheless, to review the Green agenda for the workplace at an EU and domestic level in countries with popular Green parties.

The EU programme

Minimum employment law standards are set in many areas at an EU level for member states. Green parties can influence employment laws throughout the EU either at this supra-national level, or by promoting higher levels of protection than required by EU law at a local level.

The programme for reform of EU employment law promoted by the Green/EFA group in the EP includes[xi]:

• Promoting pay transparency and eradicating the gender pay gap.
• Ensuring that all work-life balance policies focus on encouraging men to take more responsibilities for care-giving.
• Adopting the Women on Boards Directive to set a minimum quota of 40% women on private and public company boards. 

European Greens claim to have been the driving force behind the new EU Whistleblowing Directive[xii], in addition to other recent achievements including pushing for the (soon to be published) Work-life Balance Directive[xiii]. They have also been actively pushing for increased information, consultation and participation of workers in the process of cross-border company reorganisations[xiv].

Other Green priorities[xv] at an EU level include:

• Facilitating the reduction and redistribution of working hours, for instance when parents return to work from parental leave.
• Securing paid sick leave for workers.
• Protecting self-employed people and workers in the gig and platform economy.
• Supporting the right of workers to organise in trade unions as well as collective bargaining, social dialogue and worker participation.
• Addressing psychosocial health risks more effectively in EU legislation.

More radically, the French-speaking Belgian Green party, Ecolo, would like to see an EU directive introduced to set a “decent” minimum wage across the EU in order to undercut competition on the basis of labour costs between member states.

Domestic programmes

Domestic Green parties often have a more ambitious agenda than those pursued by the European Greens at EU level. In some countries, the Green agenda is relatively vague, setting out only general principles, whereas in others more detailed policies are articulated – some of which are likely to surprise many employers.

Green priorities cover consistent themes relating to: gender equality; family-friendly laws; controlling working hours; protection for “gig” economy and other non-standard workers; regulating pay; promoting the role of the trade unions and collective bargaining; and improving health and safety, including stress and mental health. These are covered in more detail below. In addition, the Green agenda in some jurisdictions includes other initiatives such as the adoption of International Labour Organisation (“ILO”) standards[xvi], increased workplace democracy, and minimum levels of sick pay.

1.  Gender equality

Improving gender equality is a key imperative across most Green parties, with a consistent focus on tackling unequal pay. The principle of equal pay for equal work has been enshrined in EU law for decades, but it remains a major demand in many countries outside Europe[xvii].

Within the EU (and also in New Zealand) the focus is more on addressing the gender pay gap, with Green party in most of the surveyed countries including steps to address this on their agenda[xviii]. In Finland, the Green League suggests increasing available information about pay to make the gender pay gap more visible. Europe Écologie Les Verts in France support shaming poor employers with a public list, and reinforcing rules concerning access to public-sector contracts.

The New Zealand Green Party similarly advocates for increasing available pay information, for example by implementing a legislative mechanism requiring employers to undertake pay audits and pay/employment equity reporting. It is also pushing for a Pay and Employment Equity Commission to collate, analyse and report on pay equity and the gender/ethnicity pay gaps.

In addition, the Green parties in several jurisdictions match the EU-wide green agenda (see above) by proposing quotas for female directors on company boards[xix].

2.  Family-friendly laws

Enhancing family rights is a priority for Green parties in almost all countries surveyed[xx]. The right to request flexible working, a feature of British employment law for over sixteen years and Australian law for ten years, has now been picked up by the Greens in New Zealand, where the Green Party wishes to widen the right to include all employees (not just those with dependants), and to introduce a negotiation-type framework in which the employer is bound to consider a flexible working request in good faith.

Most of the Green parties in the EU countries surveyed included additional family-friendly laws among their proposals. Extending paid parental leave is a particular focus, with Greens in Denmark, France and the UK specifically proposing an extension of paid parental leave to 22 weeks to be shared between parents[xxi]. In Ireland, the Green Party advocates for extending paid maternity and paternity leave to one year, and also for one year’s paid parental leave (with provision for six months of this paid leave to be shared between parents as they see fit).

Finnish Greens contend for a 6+6+6 model, with both parents being entitled to six months parental leave with a further six months to be divided freely between the parents. Proposals in France go further, including converting parental leave into a three-year time credit paid at 80% up to a child’s 18^th birthday and equally shared between both parents.

In other some other countries, the focus is more on the father with, by way of example, the Flemish Groen party in Belgium lobbying for a mandatory 15 days of leave for fathers at childbirth.

The UK’s Green Party wants government-funded maternity and paternity pay to be extended to the self-employed and is pressing for paid time off for mothers to nurse babies. The latter right is also a policy of the New Zealand Greens, alongside: increasing sick leave to ten days per annum; introducing a separate entitlement of ten days to care for sick dependants; and increasing bereavement leave entitlement to five days for each bereavement an employee suffers.

3.  Working hours

Reducing the time spent at work is another popular theme within the Green movement. Restrictions on working time have been in force at an EU level for over 20 years[xxii], with a 48-hour limit on the working week[xxiii]. Some countries have lower standard weekly working hours, such as the 35-hour week in France[xxiv]. Some Green parties, however, look to reduce the working week even further.

Belgium is an example of a country with high levels of unemployment, where the Ecolo party trumpets “Work for all, better work and better lives”, setting out the need to cut the working week to reduce unemployment. Working towards a 35-hour working week (or less) is a demand of the Greens in Canada and New Zealand as well as – from the EU members surveyed – Austria, France[xxv] and Germany.

The Flemish Groen party in Belgium goes further than any set limit on the working week by advocating for a right for all workers to determine their own weekly working hours, whereas their French-speaking compatriots in Ecolo urge a move from a five-day to four-day working week [xxvi] (without any consequential cut in salary[xxvii]).

In the UK, Greens want to extend the 28 days’ paid holiday[xxviii] for full-time workers currently prescribed under EU law to 36 days’ paid annual leave entitlement.

4.  Enhanced rights for non-standard workers

Recent decades have seen non-standard working arrangement flourish globally. Permanent full-time employment has ceased to represent the norm, often being replaced by agency work, self-employment, part-time and temporary work, and more recently the growth of people working in the platform or gig economy. Employment laws ill-equipped for such a variety of arrangements have struggled to keep pace and, in many countries, aligning the law with these changes has become an issue.

Greens in all three Commonwealth countries and most of the surveyed EU countries[xxix] support enhancing rights for these non-standard workers and, in some cases, reducing their use. The German Greens (Grüne) specifically propose taking steps to reduce the use of non-standard arrangements such as agency workers and temporary contracts. Groen in Belgium supports all workers gradually moving to a single employee status, while Ecolo sets out more aspirational objectives in promoting adequate employment rights and a decent minimum level of pay for “platform” workers. Australian Greens look to extend minimum pay standards to all employees and workers.

In Denmark, where pay and employment terms are largely settled through industry-wide collective bargaining agreements, the Danish Greens (Socialistisk Folkeparti) have made extending these agreements to non-standard workers a priority. The Irish Greens, too, focus on promoting unions for such workers.

The UK Greens include proposals to require employers to justify casual or short-term work and, reflecting some of the popular concerns in this country, want also to extend employment rights to interns and trainees and regulate zero-hours contracts.

5.  Minimum pay and wage regulation

As well as working less, Greens invariably want workers paid fairly (particularly those paid lowest). In the Commonwealth countries, Green parties all advocate higher minimum wage levels[xxx], as do the Greens in Austria, Belgium[xxxi], France, Germany, Luxembourg and the Netherlands. In these countries specific increases are advanced, whereas the UK Green Party’s policy is vaguer and would involve setting minimum pay at a “level to combat social and economic injustice”.

A common theme of Green minimum pay policies is not only increasing levels but also extending the scope to categories of workers not covered[xxxii]. This ties into the drive to extend employment rights generally to non-standard workers, explored above. The Irish Greens want to abolish unpaid internships and also set a minimum wage payment for internships in all for-profit organisations. In New Zealand, proposals include eliminating separate youth and trainee minimum wage rates and applying the adult rate to all employees.

The Green approach to pay often extends beyond reinforcing minimum pay laws. In Finland, France and Germany, for example, Greens point to increasing pay transparency (although without providing any specifics). The Groen party in Belgium also promotes pay transparency rules, including banning anyone in public service from earning more than the prime minister and setting (unspecified) restrictions on pay spans.

British Greens have more detailed ideas including proposals about maximum pay being set at the level of ten times that of the lowest paid worker, with bonuses being limited to the lowest-paid worker’s annual pay. In France, the Greens proposed that maximum pay be limited to 20 times that of the median worker.

Though not strictly speaking an employment law, Green parties in many countries are enthusiastic about introducing (or at least investigating) a “universal basic income”, provided to all by the State irrespective of any income from work.

6.  Trade union rights and collective bargaining

Central to the Green agenda across all countries surveyed is an increased role for trade unions and collective negotiations in industrial relations. Extended collective bargaining rights are part of this theme in many countries[xxxiii], particularly extending such rights to non-standard employees (see above).

The New Zealand Greens would go as far as extending collective bargaining rights to independent contractors. They also support the right of unionised workers to prevent freeloading by non-union workers.

The UK Green Party wants to extend trade union rights to tackle perceived shortcomings in domestic law, including conferring a right to take industrial action without threat of dismissal for breach of contract and the extending trade union recognition.

7.  Health and safety

Addressing health and safety concerns is another common feature of Green policy[xxxiv]. Wellbeing at work is set out, for example, as the primary focus of Groen in Belgium. In many cases, the focus is on mental health and “burn out”[xxxv]. In addition to reducing working hours (see above), another example of tacking this issue comes from Luxembourg where we see a proposed right to disconnect and not be available to answer work-related emails or other messages.

In Australia, the Greens want to confer on unions an ‘unhindered’ right to inspect workplaces for health and safety breaches, consult with workers and undertake organising activities. Across the Tasman Sea in New Zealand, we see a plan for a portion of workplace safety fines to be paid to injured workers.

8.  Other rights

Greens in certain jurisdictions include policies which seem to go far further than elsewhere or which are not picked up in other countries. As mentioned above, enhancing paid sick leave, adopting ILO labour standards and increasing workplace democracy are examples found in more than one country[xxxvi].

The three Commonwealth countries include proposals which will seem uncontroversial to anyone familiar with European employment laws, such as the principle of equal pay for work of equal value mentioned above. The New Zealand Green Party, for example, highlights extending the right to transfer where a job is outsourced and rights of agency workers to the wages and employment terms of the host employer – rights familiar to those brought up with EU-derived employment protection laws.

The UK’s Green Party goes somewhat further than its equivalents in most other Green countries[xxxvii]. Its numerous proposals include: extending employment protection rights to those challenging refusals to hire, promote or offer pay rises[xxxviii] ; a power for employment tribunals to award pay rises or promotions as well as reinstatement; a right to remain in employment pending the outcome of any challenge to the fairness of the dismissal; anonymisation of CVs during recruitment; a requirement to prove redundancies are unavoidable or in the public interest; statutory time off for voluntary work, education or public service; and a legal right for workers to buy out companies and convert them to co-operatives.

UK Greens also propose an obligation for producers and manufacturers selling goods in the country to ensure that workers overseas are not subjected to lower working standards than in the UK (in relation to working hours, child labour, health and safely, discrimination and victimisation), and paid the living wage of country in which they work. Finnish and French Greens advocate something similar[xxxix].

Green policy platforms in some countries include proposals unique to the individual circumstances of that nation[xl]. Others propound rules which seem to have little to do with local circumstances, but which have not so far been prioritised by Green parties in other countries. For example, the Irish Greens proposes banning non-competition restrictive covenants and the Finnish Greens want to promote work-related immigration by speeding up the process for obtaining work permits and recognising more qualifications from other countries[xli]. In Luxembourg, there is a specific proposal to enhance controls on workplace monitoring.

Conclusion

Giving Green parties a greater say in the development of employment laws would result in a major shift in workplace rights in many jurisdictions, with the balance moving sharply to increased rights for workers and an increased role for trade unions.

There is a surprising degree of similarity in the approach of Green parties internationally. Across the board, we could expect to see: an extension of employment rights to non-standard workers; an enhancement of family-friendly laws; an increased focus of tacking gender inequality; reduced working hours; and a hike in minimum wage levels. In some countries, we would see some particularly radical reforms.

Assuming the fragmentation of politics that we are currently witnessing across the globe continues, with Green politics becoming ever more popular, it is likely that Green party priorities – including in the area of employment rights – will becoming increasingly relevant and important. The spotlight will fall on many of these before long and it will be interesting to see them being scrutinised and debated more intensely.

 

With thanks to Ius Laboris colleagues: Andy Lynch and John Tuck, Corrs Chambers Westgarth, Australia; Birgit Vogt-Majerek, Shima Mayer Starlinger, Austria; Jan Van Gysegem, Claeys & Engels, Belgium; Greg McGinnis, Mathews, Dinsdale & Clark, Canada; Søren Kristophersen, Norrbom Vinding, Denmark; Seppo Havia, Dittmar, Finland; Guillaume Bordier, Capstan, France; Alexander Ulrich, Kliemt, Germany; Síobhra Rush, Lewis Silkin, Ireland; Ariane Claverie, Castegnaro, Luxembourg; Jan Verlaan and Philip Nabben, BD-Advocaten, Netherlands; Peter Kiely, Kiely Thompson Caisley, New Zealand

Related Item(s): Employment

Author(s)/Speaker(s): James Davies,

On 24 October the Home Office laid a new Statement of Changes in Immigration Rules, to cover the situation where the UK leaves the EU on a no-deal basis, either on 31 October 2019 or at a later date.

Text:

The statement, HC 170, only includes Rules that would apply to EEA/Swiss citizens (‘EEA citizens’), Turkish workers, Turkish businesspersons and their family members in the event of a no deal Brexit. It is a very unusual step for the Home Office to lay lengthy Immigration Rules that cover a contingency. However, with a no deal Brexit still being possible only days before the current Article 50 deadline, the Home Office has decided to give stakeholders at least some advance notice of the detail of what the Immigration Rules would be in that scenario. 

If the UK does not leave the EU under no deal conditions, a further Statement of Changes would need to be laid to remove the redundant Rules. It is to be hoped this would be done swiftly to minimise confusion for users of the immigration system.

If the provisions become effective, the statement:

• Provides the Immigration Rules that would govern the European Temporary Leave to Remain (Euro LTR) scheme – this scheme would operate on a voluntary basis for EEA/Swiss citizens who arrive in the UK after Brexit, and their family members
• Introduces the framework and deadlines for defined family members living outside the UK at the date of Brexit to make applications under the EU Settlement Scheme and to apply for administrative review if refused
• Applies the (more stringent) UK criminality and conduct thresholds to EEA citizens, Turkish workers, Turkish businesspersons and their family members in a range of circumstances, including whether to deport a person, refuse their entry to the UK or application for leave, or to cancel or curtail their leave. It also defines when pre-exit conduct will be taken into consideration.

For further details of the arrangements that would apply in the event of no deal, see our earlier alert, here.

If you have any queries about this development, please contact the Immigration Team.

Related Item(s): Immigration & Global Mobility, BREXIT

Author(s)/Speaker(s): Andrew Osborne,

With uncertainty continuing over the Brexit process and how events in Parliament and the Courts may unfold over the coming days, we have taken the opportunity to provide a summary of the immigration implications of a deal and no-deal Brexit, as well as some action points for employers and individuals.

Text:

What action can employers and individuals take immediately?

Employers and individuals may wish to consider making arrangements for any planned moves to the UK to be brought forward so that the EEA/Swiss citizen enters the UK before 31 October 2019. This will ensure they are eligible to apply under the EU Settlement Scheme in the event the political attempts to avoid a no deal Brexit on 31 October fail.

In addition, if the UK does leave the EU without a deal on 31 October, the person should ensure they do not spend more than six months in any 12 months outside the UK following the date of their initial entry. There is provision for a single period of 12 months outside the UK to be ignored for settlement purposes, however this must be for an important reason such as childbirth, a serious illness, study, vocational training or an overseas work posting.

For intended moves for British citizens to the continent, immigration advice should be sought relating to the options and actions to take on a country-by-country basis.

EU Settlement Scheme update – ID checks can now be made using an iPhone

In a welcome and long-awaited development, on 18 October the Home Office released a beta EU Settlement Scheme ID document check App for iPhone users. The app will work for iPhone 8 or later models, and will work for iPhone 7 and 7 Plus after an IOS update due to be rolled out shortly.

The availability of the app on iPhone should make the EU Settlement Scheme application process more straight-forward for a greater number of applicants and reduce the need for people to attend a document scanning location.  

How is the Johnson deal different from the May deal?

On immigration, nothing is different in the draft Withdrawal Agreement aside from some changes being made to wording in the Ireland/Northern Ireland Protocol on the Common Travel Area. This just clarifies that the UK and Ireland must not make any arrangements in the Common Travel Area during the transition period that would affect the rights and privileges of EU citizens under European Law, and in particular their rights of free movement, to, from and within Ireland.

In the non-binding political declaration, there are no changes relating to mobility specifically. Commitments include a requirement for the UK to treat all EU citizens without discrimination in mobility matters, facilitating business travel and visa-free travel for short-term visits and protecting the operation of the Common Travel Area. However, the revised paragraph aiming for there to be a level playing field for open and fair competition could lead to the UK being restricted from granting more favourable mobility arrangements to trading partners than those available to the EU.

What would leaving under Johnson’s deal mean from an immigration perspective?

• There would be a ‘transition period’ from exit day to 31 December 2020, during which EEA/Swiss nationals and their family members would be able to enter, reside and work in the UK on the same basis as before exit
• EEA/Swiss nationals would be eligible to apply under the EU Settlement Scheme if they arrive in the UK by the end of the transition period, rather than having to arrive by the date of exit in a no deal scenario
• The main deadline for applying in the UK under the EU Settlement Scheme (EUSS) would be 30 June 2021, instead of 31 December 2020 in a no deal scenario
• Close family members of EEA/Swiss nationals with status under the EUSS who are living abroad would be able to apply under the EU Settlement Scheme after the end of the transition period, with no deadline, provided the relationship existed before the end of the transition period and still exists at the time they apply
• Children born to an EEA/Swiss either in the UK or abroad after the end of the transition period would be eligible to apply under the EU Settlement Scheme with no deadline
• The trade agreement between the UK and the EU would be negotiated during the transition period and would be taken into account in the new immigration system due to be in place from 1 January 2021
• British nationals would be able to enter, reside and work in the EEA/Switzerland under free movement rules until the end of the transition period
• Immigration to the EEA/Switzerland for British nationals after the transition period would be negotiated with the EU and the other relevant countries

 

Immigration Bill

If the current Government remains in power for any length of time, or if a Conservative Government is returned following a general election, the Immigration Bill announced in the Queen’s Speech on 14 October (or a similar bill) will make its way through Parliament.

The bill envisaged by the current Government covers the same areas as the one that fell away due to Parliament being prorogued:

• Ending free movement of persons – this is critical because until the bill is passed and commenced, free movement arrangements will continue to apply in the UK
• Clarifying the UK immigration status of Irish citizens once free movement has ended
• Social security coordination for EU nationals

New features that were not present in the previous bill include:

• Powers to treat EU citizens arriving from January 2021 in the same way as non-EU citizens
• Maintaining the treatment of EU citizens resident in the UK before exit day – it remains to be seen whether this would provide any safeguards for EU citizens who fail to apply under the EU Settlement Scheme before the relevant deadline
• Confirming the deadline for applications to be made under the EU Settlement Scheme – this could prove controversial unless it is proposed the deadline itself is set out in secondary legislation
• Providing a right of appeal against EU Settlement Scheme decisions

Whether and when this bill is introduced to Parliament will depend on how Brexit-related matters unfold over the coming days and weeks.

No deal Brexit

Although Parliament is doing its level best to avoid this situation, it is still not excluded as a possibility. Our analysis of what this would mean for immigration is available here.

How can we help?

We appreciate that the immigration needs of employers and individuals may be complex and require in depth assistance due to Brexit. For specific queries, please contact a member of the Immigration Team.

For HR professionals, we are running an Immigration Law Academy on 25 November, where we will offer an in-depth look at Brexit, alongside sponsoring migrant workers and preventing illegal working.

We are also able to provide a range of toolkits, training and onsite support for businesses under our Immigration Solutions for Brexit.

 

Related Item(s): Immigration & Global Mobility, BREXIT

Author(s)/Speaker(s): Andrew Osborne, Kathryn Denyer,

There are new Immigration Rules in effect from 1 October 2019 which affect Tier 1 Investor migrants whose first grant of leave was made under the rules in place before 29 March 2019 and who have invested in UK Government bonds.

Text: Firstly, the changes enable these people to make an extension application in the category on or after 6 April 2023, provided they move their investment out of UK Government bonds and into another form of qualifying investment before this date. They will also be allowed to make an application for indefinite leave to remain on or after 6 April 2025 provided they move their investment out of UK Government bonds before this date.

Secondly, if the affected investors do not meet the above deadlines, they can still apply for further extensions and settlement if they invest at least £2 million in qualifying investments before they apply for further extensions and maintain the investments for a fresh full qualifying period required for settlement.

These changes mean that the relevant Tier 1 Investors do not need to change their investment strategy straight away. They should however do so before the deadlines the Home Office has imposed if they want to avoid setting the time they have accrued towards settlement back to zero.

When reinvesting, the investors need to make sure that the funds they previously invested in UK Government bonds are moved into qualifying share capital or loan capital investments in active and trading UK registered companies. Certain investments do not qualify, such as investments in property investment, property management or property development companies, or pooled investment vehicles unless they are funded by a UK or devolved government department or agency. The gross proceeds from the sale of the bonds must also be re-invested in qualifying investments before the end of the investor’s next reporting period, or within 6 months of the sale, whichever is earlier.

If you have any queries about these changes, including the requirements for reinvestment, please contact a member of the Immigration team.

Related Item(s): Immigration & Global Mobility

Author(s)/Speaker(s): Andrew Osborne, Tara Sayer, Kathryn Denyer,

What might a ‘no-deal’ Brexit mean for UK employment rights? What could employers do now to prepare? And what might the future hold in a no-deal scenario?

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With the news about the effective suspension of UK parliament, no clear sight of a UK-EU Brexit deal, and the emergence of a cross-party movement to try to avoid a no-deal Brexit it is hard to say what will happen next in the UK. However, Prime Minister Boris Johnson remains clear that he would be prepared to leave the EU without a deal if necessary and the current legislation still commits us to leaving the EU at 11pm on 31 October, deal or no deal. It seems a good time for a recap on the potential employment law implications of a no-deal Brexit and an update on the latest immigration position.

What could employers do now to prepare for a no-deal scenario?

Support for EEA/Swiss citizens and their family members: Employers should continue to remind relevant employees to make their applications under the EU Settlement Scheme.  The deadline for applications in a no-deal scenario will be 31 December 2020.  EEA/Swiss citizens and their family members who’ve lived in the UK for five years or more at the date of application can apply for ‘settled status’. Those who have not been living in the UK for five years will be granted ‘pre-settled status’ until they have reached the five-year threshold (when they will be granted settled status). Irish citizens are not required to apply under the scheme due to the common travel area arrangements, however may do so if they wish. The non-EEA/Swiss family members of Irish citizens should consider applying under the Scheme as its provisions are much less onerous and significantly less expensive than applying under domestic immigration laws.

Bring forward start dates where possible: Given the uncertainty over the post-Brexit immigration position (see below) employers should try to manage their recruitment pipeline where possible to ensure that proposed new employees  who are non-Irish EEA/Swiss citizens enter the UK before 31 October 2019.

Support for British citizens: The European Commission has asked all member states to provide residence permits to British citizens living in their countries at the date Brexit occurs, but long-term arrangements will vary from country to country. The Commission has published a summary of the position in each country. In many cases, arrangements have not yet been finalised or may be subject to change, so developments will need to be monitored.

European Works Councils: Be sure to have pre-designated your new representative agent if your EWC is currently located in the UK. If your EWC is (or will become) located in another EU country, you will need to decide what to do about your existing UK representatives after Brexit (see here for the EU Commission’s latest position). If you are currently negotiating an EWC agreement, or if you have a EWC operating under the default ‘subsidiary’ requirements, consider relocating your arrangements now if you’ve not already done so.

Data Protection: If a no-deal Brexit approaches, you may need to take steps to protect data flows from the UK to the EU.

Impact on business: There is a reminder in our previous article here about the legal requirements if you are considering restructuring or relocation after Brexit. The key points are, firstly, that you may need to consult on the business case for closure before any decision to close a business is taken. And, secondly, employees should be offered the opportunity to move with the business if it is relocating. 

Following a no-deal Brexit – what would it mean?

Employment law: In the event of a no-deal Brexit, the European Union (Withdrawal) Act 2018 (the “Withdrawal Act”), will convert all EU employment law as it stands before Brexit into UK law. The Employment Rights (Amendment) (EU Exit) Regulations 2019 will make some small technical changes and introduce new provisions intended to preserve UK-located EWCs but employment law will otherwise remain the same.

Business travel to the EEA and Switzerland: The rules for British citizens travelling to Ireland will not change and they will be allowed to undertake any activity without restriction. After Brexit, British citizens travelling to the other EEA countries or Switzerland will be exempt from visa requirements for up to 90 days in a 180 day period. This is for visits only, including for attending business meetings. However, British citizens will be unable to undertake paid work, so you’ll need to understand the scope of the proposed activities on each trip and obtain any required work permissions if these go beyond the activities allowed for visitors. It will also be important to calculate the time spent in the Schengen area on a rolling basis to ensure the 90-day maximum stay is not exceeded. British citizens will also need to have a passport which is valid for at least six months from the time they enter the EU. Note that some British passports are issued for more than 10 years in total but only the first 10 years of validity can be counted towards this six-month requirement. The government has produced a calculator that people can use to check if they have enough time left on their passport to cover a visit.

Business travel to the UK: Irish nationals will continue to be able to undertake business travel to the UK without restriction indefinitely due to the common travel area arrangements. Other EEA/Swiss citizens will also be able to undertake business travel to the UK without restriction in the same way as they do now until 31 December 2020. From 1 January 2021 they would need to meet the requirements for non-visa national visitors under the post-Brexit immigration system. 

What would the no-deal future look like?

New immigration requirements: The Home Office has confirmed that freedom of movement would continue from the date of a no-deal Brexit until 31 December 2020, with EEA/Swiss citizens being able to voluntarily apply for European Temporary Leave to Remain (Euro TLR) during this period. Euro TLR would be valid for 36 months from the date of grant. The advantage of holding Euro TLR is that time spent with this type of leave would count towards the qualifying period for settlement under an eligible post-Brexit immigration category. The post-Brexit immigration system is due to be implemented from 1 January 2021. The current government has indicated an intention to depart from the proposals originally put forward for the new system in the immigration white paper, for example by incorporating some new  Australian-style points based categories. The Migration Advisory Committee is currently calling for evidence on what salary thresholds should be put in place for skilled workers under the post-Brexit immigration system.

Employment caselaw: Under the Withdrawal Act, pre-Brexit decisions of the European Court of Justice will remain binding on most UK tribunals and courts, but need not be followed by the Supreme Court. New ECJ decisions will not be binding on any court or tribunal, although could be taken into account if relevant. On the whole, however, UK courts are likely to continue to respect most ECJ rulings, as long as UK and EU legislation remain the same.

No New Directives: The UK would not be required to adopt the Transparent and Predictable Working Conditions Directive, the Work Life Balance Directive, the Whistleblower Directive or any future EU directives. The UK, however, has already committed to implementing some aspects of the Transparent and Predictable Working Conditions Directive, is one of the few EU countries to already have whistleblower protection and already provides some of the rights established under the new Work Life Balance Directive. So, whilst differences in employment law could open up relatively soon, they will be quite small.

Longer-term changes to employment law: Bigger gaps will open up if the UK government takes the opportunity to dismantle EU-derived employment laws after Brexit. Theresa May was always emphatic that her government would look to enhance workers’ rights after Brexit, not reduce them. However, future prime ministers may take a different stance.

Boris Johnson is reported to be keen to renounce the Working Time Directive. He gave evidence to a select committee that it had proved too expensive to implement in the UK. If Boris Johnson remains Prime Minister then we can reasonably expect the scrapping of EU rules on working time limits and record keeping requirements. Indeed, it would be more surprising, given the strength of his previous statements, if he made no changes whatsoever to EU-derived working time laws. However, rights to paid holiday are unlikely to be scrapped altogether.

In the longer term, if a Conservative government remains in power, we might also expect to see collective redundancy consultation being abolished or made less onerous and the restrictions on changing terms after a TUPE transfer being lifted (although we are unlikely to scrap TUPE). Previous governments have explored whether discrimination awards could be capped (for example at one or two years’ pay) but this was problematic under EU law. Capping discrimination awards is unlikely in the short term, not least because of the #metoo movement, but it could come back on the table at a later date.

In its final days of government, Theresa May’s administration published a flurry of proposals and ideas for reforming employment law. These included proposals to regulate Non-Disclosure Agreements (NDAs) and to extend redundancy protection to maternity returners, along with a series of consultations about other potential reforms ranging from a shake-up of parental leave entitlements to new rights to request workplace adjustments. Some of the proposals have been a long time in the making and seem likely to proceed under any stable administration. However, it remains to be seen whether our current and any future government will take forward all of the ideas currently open for consultation.

Ultimately, the UK faces the same challenges as any other modern economy: how to regulate the increasing volume of platform and contingent working and respond to the impact of demographic and technological change on the workplace. The UK’s withdrawal from the EU will mean that the UK will need to find its own regulatory solutions to these challenges.

Discrimination rights: Finally, remember that UK law prohibits workplace discrimination on grounds of nationality and national origin. In the (hopefully unlikely) event of any EU citizen experiencing abuse or harassment in your workplace, you would need to be ready to respond under your anti-harassment policies. You may want to check that they already cover nationality as well as race.

Interestingly, UK equality legislation goes further than EU minimum requirements in explicitly preventing nationality discrimination in the workplace. This is one of a number of instances where UK law actually provides more rights than the EU minimum, and illustrates that, although the UK may dismantle some EU-derived employment rights following a no-deal Brexit, there are still likely to be areas of employment law where the UK goes further than the EU.

Related Item(s): BREXIT, Employment, Immigration & Global Mobility

Author(s)/Speaker(s): Russell Brimelow, Andrew Osborne, Gemma Taylor, Kathryn Denyer,