1. WHAT EVERY EMPLOYER NEEDS TO KNOW
Breakfast Seminar
29 April 2010

2. UK Business Immigration
The Points-Based System
Practical Issues and Tips for Employers

3. The Points-Based System
5 Tiers:
Tier 1 – Highly skilled workers
Tier 2 – Sponsored skilled workers with a job offer
Tier 3 – Low skilled workers (currently suspended)
Tier 4 – Students
Tier 5 – Temporary workers and youth mobility

4. No specific job offer required
Tier 1
No specific job offer required
General
Entrepreneur
Investor
Points requirements
75 for attributes:
qualifications, past earnings, UK experience, age
10 for English language
10 for available maintenance funds
Since 6 April 2010:
Points for Bachelor degrees
Full attributes points for salary of £150,000 or more

5. Tier 2 Points requirements General
Intra-Company Transfer
Sports People
Minister of Religion
Points requirements
50 for attributes: qualifications, prospective earnings, Intra-Company Transfer
10 for English Language
10 for available maintenance funds

6. Intra Company Transfer
Since 6 April 2010:
New sub-categories
Minimum prior experience raised from 6 to 12 months
No longer a route to settlement in the UK

7. Sponsorship Online application and investigation Key roles:
Authorising officer
Key contact
Level 1 user
Level 2 user
‘A’ or ‘B’ Rating
Certificates of sponsorship
Sponsor Duties – General and specific
e.g. Resident Labour Market
Test

8. Entry Clearance

9. Consequences of Breach
Suspension
Downgrading
Revocation of licence
Example reasons for enforcement activity:
Branches not covered by licence
Sponsored workers move to new location
Change in key personnel not reported
Non-compliant RMLT
Not linked for ICT purposes
Civil and criminal penalties, warnings, fines.
Deportation and ban from re-entering the UK.

10. PRACTICAL ISSUES Should the company become a registered sponsor?
Are your internal records up to date?
Are you up to date with current immigration rules?
What is best for the employee?
Do you have long term immigration strategies in place?

11. And finally… Employment law vs Immigration rules Race discrimination
Unfair dismissal
The future…?

12. The Recruitment Process
How to avoid potential discrimination claims
Restrictive Covenants – taking on key staff: how to manage the risks
Anna Birtwistle

13. Recruitment and discrimination
Job applicants can bring claims for:
Discrimination in the arrangements made for recruitment
Discrimination by the employer in the terms of the employment offered;
Discrimination as a result of a refusal or a deliberate failure to offer employment;
Harassment
Protected grounds: sex, race (to include colour, nationality, ethnic or national origin), disability, age, religion or belief, sexual orientation, gender reassignment, marital or civil partner status.

14. Recruitment and discrimination
What we are talking about today:
Advertisements
Interview process
Selection process
Remember importance of:
Equal Opportunities Policy
Recruitment Policy

15. Advertisements What not to do…

16. Discriminatory advertisements
Sex, Race, Disability
Unlawful to publish advertisements which could reasonably be interpreted as indicating an intention to commit an unlawful act of discrimination on grounds of:
Sex (section 38 of SDA)
Race (section 29 RRA)
Disability (section 16B of DDA)
ECHR power to seek declaration and injunction
Age, Religion or Belief, Sexual
Orientation
Law does not expressly prevent discriminatory advertisements on grounds of Age, Religion or Belief and Sexual Orientation
Note, however, that discriminatory advertisements on these protected grounds can still use as evidence of the employer’s intention to discriminate during the recruitment and selection process

17. Advertisements Written job descriptions and person specifications
Content
Real requirements of the role
Language
Statement that company is an equal opportunities employer
Consider the medium of advertising
Internet
Trade publications/press
Word of mouth

18. Genuine occupational requirements / qualifications
An employer can discriminate in relation to recruitment on grounds of race, ethnic or national origins, religion or belief, sexual orientation or age, if:
The discriminatory characteristic is a genuine and determining requirement of the job.
It is proportionate to apply that requirement in the particular case.
Either the person does not meet the requirement, or the employer is not satisfied (on reasonable grounds) that the person meets it.
If a job is being advertised where a GOR or GOQ applies, it is best practice to state this fact in the job advertisement together with the relevant statutory references
Specific cases
Sexual Orientation Regulations in relation to employment for the purposes of an organised religion (regulation 7(3), Sexual Orientation Regulations).
The Religion or Belief Regulations contain a GOR allowing organisations with a particular religious ethos to discriminate on grounds of religion or belief (regulation 7(3), Religion or Belief Regulations)
The Race Relations Act contains a number of job-specific GOQs, which include: drama, entertainment and modelling roles; "authenticity" in bars and restaurants; and the provision of personal welfare services to persons of a particular racial group (section 5, RRA)
The Sex Discrimination Act contains a number of job-specific GOQs, including: drama, entertainment and modelling; work in single-sex institutions such as hospitals or in private homes involving intimate contact; provision of personal welfare services; and where it is necessary to preserve decency or privacy (section 7, SDA)

19. Interview and Selection
Interview process
Venue
Timing
Written or psychometric tests
Selection criteria
In writing
Objective
Creates a “level playing field”

20. Interview Prepare interview questions (and stick to them!)
Only ask questions which relate to the candidate’s ability to do the job
Same questions, same order for each candidate
TIP:
Avoid personal questions:
“Are you planning on having a family soon?”

21. Finally, remember DO: DO NOT: Be objective
Focus on the requirements of the role and the qualifications necessary to do this role
Try and involve more than one person in the decision making process
Use standardised interview questions
Keep a paper trail, including:
Job description
Person specification
Selection criteria
Any written tests
Notes of the short listing process
Interview questions
Notes of interview and any discussions that followed (handwritten and/or score sheets)
DO NOT:
Be subjective i.e. “he/she wouldn’t fit in”
Advertise in only one publication/medium
Use language/job titles which are gender-specific
Use the words “young” or “mature” and avoid buzz words such as “dynamic”, “with it”
Stipulate number of years’ post qualification experience unless strictly necessary
Ask personal questions during interview or tailor your interview to the candidate

22. Restrictive Covenants
Control of employee’s behaviour post termination
Public Policy – void as restraint of trade
unless…

23. Exceptions Legitimate business interest to protect
Protection is no more than reasonable having regard to the parties and the public interest
(Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co.Ltd)

24. Types of Restrictive Covenants
Non-solicitation
Customers
Existing employees
Non-dealing
Non Compete
Moving to competing business
Setting up in completion

25. Enforceability
Be specific about what you are trying to protect, your legitimate business interest should be either;
A trade connection; or
A trade secret or other confidential information
Key Issue = length of restriction
TIPS
In relation to non-solicitation clauses, limit these to customers and colleagues that the exiting employee has had direct contact in the 12 months prior to termination
Length of restriction should be no longer than necessary to protect your business

26. Restrictions During Employment
Garden Leave
Requires employee to remain at home during notice period
Express clause in contract
Is there an implied right to work?
(William Hill Organisation Ltd v Tucker)
Typically applies during 3 – 12 months’ notice
Post termination restrictive covenants less likely to be enforceable
(Credit Suisse Asset Management Limited v Armstrong)

27. Liability For New Employer/Recruiter
Procuring and inducing breach of contract
Where third party knowingly and intentionally procures a breach of contract
Conspiracy and/or unlawful interference with business or breach of confidence
Account as potential trustee
Breach of fiduciary duty
Liable to account for either having dishonestly assisted the employee’s breach or knowingly in receipt of trust property

28. Team Moves Hard to do without risk of breach and liability
Typical issues:
Requests to disclose confidential client/business information to new firm
Speaking to colleagues
Speaking to clients
Risk of procuring and inducing of new firm or recruiter encourages breaches
Springfield injunction
(UBS Wealth Management (UK) Limited v Vestra Wealth LLP [2008])

29. Reducing risk
Be aware of the restrictions contained in the candidates contract of employment
Do not ask candidates for information which will be deemed to be confidential
Advise candidates to comply with their duties and obligations

30. What’s new for 2010: I. The Equality Act 2010
Summary and key issues
Equality Act 2010 can be traced back to February 2005
Two main aims are to bring together existing strands of discrimination legislation in one Act to:
Harmonise existing discrimination law
Strengthen existing discrimination law
Most employment related changes come into effect in October 2010
Summary of key changes
Tips for you as an employer

31. What’s new for 2010: II. Default Retirement Age and Age Discrimination
Summary and key issues
Currently employees can be mandatorily retired at 65
Challenge to DRA failed in September 2009
Government consultation on DRA ended on 1 February 2010
Government undertaking review of DRA - results were expected in Spring 2010, don’t be surprised if results arrive in Summer
Likely outcome of review? No one knows, but my guess is increase in DRA to 67 or 68
Tips for you as an employer

32. What’s new for 2010: III. Religious Discrimination
Summary and key issues
Since December 2003, “religion” and “belief” are protected grounds
Busy 6 months in this area
Ladele v London Borough of Islington (Decided: December 2009)
Eweida v British Airways Plc (Decided: February 2010)
Chaplin v Royal Devon and Exeter NHS Trust (Decided: April 2010)
Tips for you as an employer

33. What’s new for 2010: IV. Agency Workers
Summary and key issues
Typical scenario: agency worker hired by employment agency and then contracted out to employment agency’s clients
Fundamental changes coming into effect on 1 October 2011
Legislation in UK based on European equal treatment legislation
From 1 October 2011, entitled to at least same “basic” working and employment terms and conditions if had been hired directly by end user
Many rights only apply after 12 week qualifying period
Basic rights include basic pay and performance related bonus, holiday and overtime pay, shift allowances
Equal treatment principle does not apply to contractual notice pay, contractual redundancy pay or occupational sick pay amongst others
Tips for you as an employer

34. What’s new for 2010: V. Paternity Leave
Summary and key issues
Since 2003, eligible fathers have been entitled to up to two consecutive weeks’ paternity leave and pay
For babies born on or after 3 April 2011, fathers have increased entitlements. Similar rights for couples adopting children
Minimum period of APL 2 weeks and maximum is 26 weeks.
Mother and father can share a total of 39 weeks’ statutory maternity or paternity pay
Eligibility requirements include:
Notice requirements
Child must be under age of one
For father to take APL, mother must have returned to work and not have exhausted entitlement to statutory maternity leave
Tips for you as an employer

35. What’s new for 2010: VI. Fit Notes
Summary and key issues
Emphasis on what employees can do rather than what they cannot do
GPs given option to say employees “not fit for work” or “may be fit for work taking account of the following advice”
No “fit for work” option
Beware of potential disability discrimination and effect on insurance cover
Tips for you as an employer

36. The CM Murray LLP Team Clare Murray Managing Partner Bettina Bender
Edward Wanambwa
Partner
Charis Damiano
Consultant
Esther Martin
Associate
Anna Birtwistle
Associate
Susanne Foster
Associate