Employment and Immigration Law Legal Update 23/05/08

Welcome to our latest update. In this edition we focus on the new national staff dismissal register, which will "go live" this month plus changes to flexible working and new immigration law gudiance surrounding tier 2 (skilled migrant) of the points based system.

National Staff Dismissal Register to go live this month

The National Staff Dismissal Register (NSDR) is an online database due to go live at the end of May. Organisations which sign up will be provided with access to details of individuals who have been dismissed or who have left employment whilst under investigation for acts of dishonesty against their employer.

The NSDR is an initiative championed by Action Against Business Crime (AABC) the national organisation for Business Crime Reduction Partnerships.

Categories of dishonesty include: theft or attempted theft of money, merchandise or property from the employer, its suppliers or customers; falsification or forgery of documents; fraudulently obtaining money, services or information and damaging company property.

Data Protection

AABC, who are in partnership with the British Retail Consortium, state that all participating companies will be obliged to abide by the Data Protection Act and that employees listed on the database will have the right to change their entries should they be inaccurate.

Access to the database will be limited to employers who can comply with the Information Commissioner’s employment practices code. Furthermore, employees will be told when they apply for the job that they will have their details checked against the database.

Access to the database will be made online via an encrypted password system. Searches can be made for potential workers by name, address, date of birth, National Insurance number and former employer. Records will be kept for up to 5 years and may also include an individual’s photo.

Concerns

Comparisons with George Orwell’s ‘1984’ have been made. Dishonest workers will be included on the register regardless of whether they have been convicted or cautioned by the police.

The Trade Union Congress (TUC) fears that the system is "open to abuse". Once on the register a worker will be shut out of the employment market by an employer who has falsely or inaccurately accused them. Employers who hold a grudge will have a significant impact upon the future employment of former employees.

AABC defend the initiative on the basis that there is currently no central location where further checks can be made concerning an applicant’s previous employment history. AABC’s press release states that the NSDR is necessary because the "current system of employment references is too easily circumvented by dishonest applicants and can result in previously dismissed staff being employed again by another retailer without knowledge of any past conduct".

Users

So far, mainly organisations in the retail industry have signed up, including HMV, Harrods, Littlewoods, Mothercare and Selfridges.

Comments

The initiative was established as a joint venture by the British Retail Consortium and the Home Office (the Home Office granted the scheme £1m during its initial three years of development). The fact that the Home Office have withdrawn their funding of the scheme may be an indication of things to come. Time will tell how successful this scheme will be and how heavily it will be relied on by employers. Perhaps more significantly however, is whether any legal challenges will be made by affected former employees.

Flexible Working

As employers will be aware, the majority of employees (excluding members of the armed forces) currently have a statutory right to request flexible working, provided they have 26 weeks' continuous employment and have not already made a flexible working request in the preceding 12 months.

The current statutory provisions provide qualifying employees with the right to request flexible working in order to care for:

• A child under the age of six, or under the age of 18 where the child is disabled, where the employee is the parent, adoptive parent, foster parent or the child’s guardian or the spouse, civil partner or partner of that person; and
• A person aged 18 or over who is in need of care and is the spouse, civil partner or partner of the employee or a relative of the employee or lives at the same address as the employee.

Following the Queen’s speech in November 2007, flexible working has become the subject of change as the Government announced its proposals to extend the right to parents of older children. Imelda Walsh, HR Director of J Sainsbury plc, was commissioned by the Government to undertake an independent review of its proposals. This report has now been published and can be found at http://www.berr.gov.uk/publications/index.html.

The Government has accepted Ms Walsh’s recommendations (and is considering how to implement these) which are to:

• Extend the right to request flexible working to those employees with children under the age of 16 (leaving the provisions relating to disabled children under the age of 18 and persons over the age of 18 requiring care); and
• To introduce this recommendation in one go, with no phasing in period.

Ms Walsh recognises that many employers currently extend the right to request flexible working to all of their employees and some often adopt their own procedure for requesting flexible working. The importance and effectiveness of this informal approach is highlighted in the report but the suggestion of making the right to request flexible working open to all employees is rejected. Ms Walsh found that many employers argue that providing flexible working rights for only certain categories of employees can be seen to be divisive. However the report states that should employers become inundated with requests for flexible working, seeing some requests having to be turned down for business reasons, it is beneficial that they have the legislative position to fall back on which allows them to prioritise qualifying employees.

The report also rejects the argument that the right should be extended to employees with less than 26 weeks continuous service. The trust between the employer and employee, which the report states is required for flexible working to be successful and for a sensible conversation to be held in relation to this, can only be established over time.

Ms Walsh draws from her investigations that any change to the right to request flexible working should be linked to a stage in education where children may need more help and support from their parents. The report concludes that the right to request flexible working should be extended to employees with children who are aged 16 or under. Findings showed that children under the age of 12 are unable to cope with emergencies and should therefore not be left at home for a long period of time, whereas children under the age of 18 should be able to show a degree of responsibility as they commence their A-Levels, vocational training or indeed their first full time job.

Approximately six million employees are currently entitled to request flexible working. These changes will see an additional 4.5 million employees being entitled to make a request. While some employers may be concerned about this increase, the report reminds them to bear in mind that employees have the right to request flexible working, not the right to work flexibly. The legislation still provides employers with reasons to refuse employees’ requests.

Statement of intent released for Tier 2 (Skilled Migrant) of the points based system

Further details have been released recently by the Home Office for Tier 2 of the Points Based System which replaces the existing Work Permit scheme and is expected to be implemented in autumn 2008.

Tier 2 will cover all skilled workers with a job offer who are recruited to the UK to fill gaps in the UK and European Economic Area (EEA) labour force.

Tier 2 will introduce a single application process and all applicants will need to undergo biometric testing and obtain a unique Biometric Identity Card.

To be eligible to apply under Tier 2 all applicants must have:

1. a job offer
2. a certificate of sponsorship from a licensed sponsor
3. scored enough points
4. satisfied both the English Language and Maintenance Requirements as set out below

English Language Requirement- All applicants under tier 2, with the exception of those applying under Intra Company Transfers for less than 3 years, will be expected to speak English to a “..basic user standard …”

Maintenance Requirement - Initial applicants applying from outside the country in this Tier will need to show minimum funds equivalent to £800 for themselves and an additional amount of £528 for each dependant they intend to bring with them.

For further information regarding the above or any other immigration issue, please contact the Steeles Law Immigration team at immigration@steeleslaw.co.uk or by telephoning Mark Barnett on 020 7421 1720.

This article copyright © 2008 Steeles Law llp. All rights reserved.