When a little knowledge is a dangerous thing – reliance on immigration law to justify dismissal

Every employer knows that UK law relating to illegal workers is big and fierce and that you take liberties with it at your peril. However, here is what can happen when you take it too seriously.

In Abellio London Limited – v – Baker, the EAT has this month taken a look at whether an employer’s genuine belief that immigration law says something it actually doesn’t is enough to justify a fair dismissal. Since the law here is often unclear, penalties for non-compliance are material and it can be hard to obtain definitive guidance from the authorities, the case is potentially very significant.

Mr Baker is a Jamaican national who has lived in the UK since childhood. It was not disputed at any time that he had the right to live and work in the UK, but he was dismissed by Abellio when he failed to produce the documents referred to in Section 15 of the Immigration Asylum and Nationality Act 2006 by way of proving it.

Abellio read Section 15 as a meaning that unless the employee could produce the relevant documentation, it could not lawfully employ him. It wrote Mr Baker a series of somewhat contradictory letters explaining that although it fully accepted that he had the right to work in the UK, it still could not continue to employ him until he proved it, and then dismissed him.

Normally compliance with immigration law would be a good reason to dismiss – if continued employment would be unlawful, the employer would surely have little choice. But do be careful that you have the law right, which Abellio didn’t. Section 15 does not make the holding of proof of right to work a legal requirement. It merely provides an employer with a defence if that employee is later found to be employed illegally. Moreover, by Section 25 IANA, Section 15 only applies to employees who are “subject to immigration control”, which Baker was not. As a result, Abellio could not use the legal position as justification for his dismissal.

But even if it were wrong about what the law actually required, could Abellio’s genuine belief that it had to act as it did nonetheless amount to “some other substantial reason” and be the basis of a fair dismissal that way instead? In other words, is it ok to be wrong about the impact of immigration law so long as you think you are right?

The EAT thought that this could potentially be ok – after all, if you dismiss someone for misconduct, you need only a genuine and reasonable belief in that employee’s guilt, not absolute proof. There was no question but that Abellio genuinely believed production of the Section 15 documents to be a pre-condition of lawful employment, but it was less clear that that belief was reasonable. That seems harsh given that it had received supportive advice from both the Home Office and the UK Border Agency, but it was unclear whether it had asked the right questions of those bodies. In particular the EAT did not know whether Abellio had told them that Baker was not subject to immigration control (in which case, one would hope, a different answer would have been given). But that in turn assumes that Abellio knew Baker was not subject to such controls. Since he is not a UK or EU national, that would have been a pretty brave call for most employers.

Lesson for Employers

Because the EAT had insufficient evidence on the point, the matter was sent back to the Employment Tribunal for another go. If it decides that Abellio’s belief that it needed the Section 15 documentation as a condition of Baker’s continued employment was reasonable, the dismissal should be fair even though the company was wrong.

However, if the ET concludes that employers are under a greater or more rigorous duty of enquiry as to the “ins” and “outs” of the UK’s complex immigration regime, we hope at least that it will express a view as to what sort of enquiries need to be made. It would be an unsatisfactory state of affairs for employers trying their best to stay on the safe side of the immigration rules then to be caught by the unfair dismissal regime instead.

Thriving at Work – Part 3

Following our previous blogs on the Stephenson/Farmer report, this post looks at some more of the hard facts from the report associated with mental health conditions in the workplace and their causes.

First of all, it should be noted that “mental health at work” encompasses not only problems caused by or at work, despite what it says on the tin, but also those issues brought to work from other aspects of the employee’s life. This widely varying set of causes can make mental health issues very complex to deal with.

The premise of the report is that “good work is good for mental health”. Good work includes having a degree of autonomy, fair pay, some form of work-life balance, opportunities for progression and an absence of bullying and harassment. The approach taken by the UK Government is to tackle mental health, whatever its source, based on three different groups of people: i) those who are thriving; ii) those who are struggling; and iii) those who are ill and possibly off work. The idea is that this will address the fact that although any employee can have serious mental health issues from time to time, with the right support, he can still thrive at work.

The report points out that for many, mental health is not the only problem. A quite remarkable statistic from the ONS 2016/17 survey shows that 71% of long-term mental health conditions are present alongside other physical long-term health conditions and equally those with long-term physical health conditions are two or three times more likely to experience poor mental health. Therefore, it is important that these two issues are combined and considered together.

The statistics are not all doom and gloom, however. The good news is that 1.5 million people in the UK with a diagnosed long-term mental health condition are in employment, a level which has increased from previous years. Clearly employers are gradually overcoming the stigma associated with mental health issues. However, those with mental health problems are still far more likely to lose their jobs every year (6% of the employed population and around 300,000 a year) at around double the rate of those without any such condition (3%) and at a much higher rate than those with a physical health condition only (4%). This may be because of inadequate or inappropriate adjustments made by the employer; because the employee either is not (or thinks that he is not) being listened to by his employer; or because the stigma still associated with mental health has meant that the employee has felt unable to raise the issue with his employer in the first place.

The costs of mental health issues in the workplace, as we have seen in our “Thriving in work – Part 2” blog, can be astronomical (as much as £1,205-£1,560 per year per employee). In contrast, the return on investment in this area can be quite significant (on average, £4.20 for every £1 spent). The report therefore suggests that if employers and Government could work together to reduce the turnover of those with mental health problems to the same level as those with physical health conditions, this would prevent around 100,000 people leaving employment each year.

So what is the real root of the mental health turnover problem? The most common perceived “sins” by employers as suggested by the report are as follows:

  1. Missed opportunities to intervene early – only 11% of employees asked had discussed a mental health problem with their line manager and 50% said they would not want to discuss it.
  2. Employers not being transparent about their attitude to mental health – only 11% of the top 100 companies have disclosed their mental health initiatives.
  3. A lack of awareness on the part of employers of how to promote good mental health and of where to find external support – only 4 in 10 organisations have policies or systems in place to support their employees.
  4. Employers not regularly monitoring and assessing mental health – 8 in 10 employers report no cases of employees disclosing a mental health condition.
  5. Employers want to do the right thing but line managers lack training, skills or confidence – only 24% of managers have received training on mental health at work.

Given the increasing prevalence of mental health issues and the Government’s current focus on it, these statistics highlight how important it is for companies to do their bit to help tackle the problem. Now would be a good time to consider any mental health initiatives that you could implement within your organisation. It is clear that promoting awareness within the company, including training your managers to deal head-on with mental health issues and the stigma that surrounds them, can make a significant difference to the workplace. That is, not only to the culture, the productivity of the workforce and the costs associated with sickness due to mental health issues, but also to the employees who have mental health issues and to their colleagues supporting them. It is all very well having robust policies in place to deal with these issues, but without the means to enforce them and the active support of management, it can be very easy to let these fall by the wayside.

Federal Court Clarifies When Employers Must Pay Employees For Pre- or Post-Shift Activities

A federal court recently provided guidance on an issue that still vexes some employers, i.e., when they must pay employees for time spent on tasks immediately before or after a shift.

Many employers require employees to take certain steps immediately before or after they start their actual shifts. For example, an employer might require an employee to put on protective equipment, pass through a security checkpoint, or drive to a remote jobsite to pick up tools.

In the case at hand, the employees performed construction work at an oil refinery. In order to reach the refinery, the employees needed to follow a unique procedure required by their employer. To help the employer manage traffic at the refinery, the employees needed to travel to a particular bus stop, wait for the bus, and then ride the bus to the refinery before their shifts started. Continue Reading

Webinar: US Employment Law – A Year Into the Trump Era

During the 2016 US election, President Donald Trump promised many changes with the potential to affect businesses and employers across the United States. Join us to learn what has happened, what has not, and what you should do to prepare for 2018 on the employment legal front.

On 7 December 2017 at 4.00 p.m. GMT (incl. the UK) (5.00 p.m. CET, 11.00 a.m. EST, 8.00 a.m. PST), Jill Kirila from our Columbus office and Laura Lawless Robertson from Phoenix will discuss the major judicial decisions, major legislation and executive developments that have taken place during 2017. Jill and Laura will also provide practical tips and guidance to help you appropriately manage your workplace.

The webinar will be a 50-minute presentation followed by a 10-minute online question and answer session.

Intended to help participants manage labour and employment law risk across their international operations, the webinar will be of interest to both HR professionals and in-house counsel.

This webinar is part of our 2017 series focusing on the key labour and employment issues in countries throughout Europe, the Middle East, Asia Pacific and the US.

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Paid Family Leave On the Rise – California and New York State Both Set to Expand Benefits Starting January 1, 2018

Come January 1, 2018, employees in California and New York will enjoy new and expanded rights to time off work, with pay, to attend to certain family needs.  New York, whose law was enacted in 2016 (see our prior post here), boasts its law as being the nation’s “strongest and most comprehensive” on paid family leave.    This new law provides job-protected, paid leave to bond with a new child (whether biological, adopted, or foster), care for a loved one with a serious health condition, or address family matters arising from another family member’s call to active military service.  In its first year, the law provides employees with approximately 50% of their average weekly wage for up to 8 weeks; this amount will increase annually until 2021, when it reaches the maximum benefit level of approximately 67% of an employee’s average weekly wage for up to 12 weeks.  The law also requires employers to continue health insurance while an employee is on leave, in the same manner which this health coverage is paid during the employee’s regular employment.  This means that employers can require employees to continue to pay their health insurance premiums while on leave.  The paid family leave program will be funded through an add-on to existing state-mandated employer disability insurance policies.  Employers may choose to pay the additional insurance premiums or deduct the cost from each employee’s payroll.  (Some employers may have begun making these deductions as early as July 1, 2017).  Of note, this law does not just apply to employers located in New York State.  Any employer with employees working in New York for 30 or more days in a calendar year must have paid family leave insurance coverage.  Continue Reading

“One-Size-Fits-All” Return-To-Work Policies Cause An Extra Large Problem For Major US Airline

On November 3, 2017, the Equal Employment Opportunity Commission (“EEOC”) filed a lawsuit against a major United States airline, alleging the company maintained policies that violated the Americans with Disabilities Act (“ADA”), and inked a $9.8 million settlement deal with the company the same day. The EEOC alleged that the company maintained a “100% return to work” policy, meaning that the airline required individuals returning from medical leave to be able to perform their essential job duties without any disability-related restrictions (i.e., accommodations, such as reduced hours or sitting while working). The complaint named several individual plaintiffs who claimed to have been personally affected by this policy, and thus, discriminated against on the basis of their disabilities in violation of the ADA. Employees reported practices like the airline refusing to transfer injured or disabled employees, and refusing to offer intermittent, paid leave or seating behind a ticket counter, with the airline instead requiring disabled employees to reapply for other positions or find other work. The EEOC alleged that the company’s return-to-work policy itself, and the specific occasions on which the company employed it, were violations of the ADA’s mandate that employers provide reasonable accommodations to employees to allow them to perform the essential functions of their jobs. Continue Reading

US Senate Confirms Peter Robb as New NLRB General Counsel

On November 8, 2017, the U.S. Senate confirmed by a vote of 49-46 Peter Robb to serve as General Counsel of the National Labor Relations Board.  Mr. Robb succeeds former NLRB General Counsel Richard Griffin, whose term expired in October 2017.

As General Counsel, Mr. Robb will serve as the NLRB’s top prosecutor.  In that role, he will exercise his discretion in enforcing the National Labor Relations Act, supervising the NLRB’s network of regional offices and determining which cases to bring before the Board.  As a long-time management-side labor lawyer, Mr. Robb’s appointment is anticipated to result in cases being brought before the Board that will provide vehicles to reverse many of the pro-employee, pro-labor decisions that were decided during former GC Griffin’s tenure, particularly now that the Board is comprised of a majority of Republican appointees (Chairman Miscimarra and Members Emanuel and Kaplan).

New proposals for post-Brexit maternity protection – use German law

Back in March 2016 I posted a piece querying the headlines over an Equalities and Human Rights Commission report on maternity and pregnancy discrimination at work. The short point was that the report did not justify the apocalyptic headlines about the treatment of women who were pregnant or on maternity leave. Looked at close up, many of its findings of “discrimination and negative treatment” were based on the women’s perception, not established instances of unlawful treatment by employers. There was nothing in the report about what proportion of maternity rights cases succeeded in the Employment Tribunal which suggested that it was any higher than discrimination cases generally.

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Getting handsy in Hollywood, the fall of the stars – lessons nearer home

#metoo campaignThe limelight on Hollywood has turned fifty shades darker recently with more high- profile celebrities being called out on allegations of historic inappropriate behaviour.

The news of late has been littered with claim after claim of sexual harassment by celebrities against their peers in years gone by but don’t be fooled into thinking it is a historic problem or an issue only for those adorning the silver screen. Individuals, both male and female, have been speaking out from all industry sectors both across the pond and in the UK under the hashtag ‘#metoo’, a campaign set up following the rape allegations made against Hollywood mogul Harvey Weinstein, to highlight their experiences.

In less than a week the #metoo campaign was used more than a million times in the US, Europe, the Middle East and beyond, showing only the beginning of the  prevalence of sexual assault and harassment in our society, from shop assistants to soldiers and pupils to politicians – with Michael Fallon, Defence Secretary, stepping down just last week.

With this airing of what seems like an almost infinitely large basket of grubby laundry, it is likely that the number of allegations being raised by employees and subsequently brought to the Employment Tribunals could sky- rocket. As such we would urge employers to ensure that, when they are approached with an allegation of harassment or assault in the workplace, the mentality of “handling it right” rather than “getting it off the desk” prevails.

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Can you mediate sexual harassment complaints? Should you?

As sexual harassment in high places is attracting a lot of coverage in the Press this week, here is a new thought.

What if, instead of pillorying the accuser and exposing the victim to the trauma of formal grievance or Employment Tribunal proceedings, you could find a solution where victims regarded their honour as satisfied and perpetrators came away with a much fuller understanding of others’ perceptions of their behavior and its impact on them, but with their value to the business retained and working relationships preserved?  And what if that solution could be reached in around a fortnight, cost at worst a few £1,000s and be substantially confidential between the parties? Who sensibly would not go for such a thing?

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