Employment & Immigration Legal Updates 10/11/2008

Opt-out from 48 hour Working Week is Once Again Under Threat

We provide you with an update of the still uncertain future of the UK's opt-out of the 48 hour working week.

In June 2008 Britain reached agreement with the other EU states on amendments to the Working Time Directive. In particular, member states were to be allowed to continue using the opt-out from the 48-hour week.

However, this agreement must be endorsed by the European Parliament. On 5 November 2008 the Employment and Social Affairs Committee voted by 35 votes to 13 to remove the opt-out from the 48 hour limit to the working week in the UK in three years time.

The full European Parliament will debate the matter with EU employment ministers before going to a vote which will be taken by the full Parliament in December.

Our fortnightly employment updates will continue to keep you updated on the status of the opt-out agreement.

Important New Immigration Rules for Foreign Students

From March 2009 new measures are being introduced which significantly tighten up the rules for foreign students and colleges teaching foreign students in the UK.

The main changes to be introduced are as follows:

• All colleges and universities who want to enrol non European Economic Area (EEA) nationals must apply to the UK Border Agency for a sponsor licence no later than 2 February 2008. Once a licence has been obtained the institution will need to comply with certain duties or risk losing the licence.
• Every non EEA student must be sponsored by a UK Border Agency-licensed education institution, supply biometric information and meet new criteria.
• Stricter rules will be introduced aimed at protecting the UK's labour market including a requirement for applicants to show a proven track record in education and provide evidence that they are financially independent.

The new measures will be reinforced in autumn 2009 with the introduction of a new "sponsor management system" which it is envisaged will make it easier for universities and colleges to inform the UK Border Agency when students fail to enrol on courses or miss lessons.

If you have any query in relation to this article or any other UK immigration matter please contact Mark Barnett or another member of the immigration team on 020 7421 1720 or immigration@steeleslaw.co.uk.

Requirement for a Degree Did Not Amount to Age Discrimination

We look at the recent decision by the Employment Appeal Tribunal which held that an employment tribunal had erred in finding that an employer had indirectly discriminated against an employee on the grounds of age when it based its salary structure on the requirement that the employee possess a law degree.

In (1) Chief Constable of West Yorkshire Police (2) West Yorkshire Police Authority and others v Homer UKEAT/0191/08 the Employment Appeal Tribunal (EAT) held that a tribunal had erred when it found that a requirement to possess a law degree had indirectly discriminated against an employee on the grounds of age.

Background

In 1995 Mr Homer joined the Police National Legal Database (PNLD) as a legal adviser having served 30 years as a police inspector. When Mr Homer was appointed to his new position he was required to have either a law, or equivalent, degree or "exceptional experience in criminal law, combined with a lesser qualification in law". Mr Homer had the latter of these requirements.

In 2003 PNLD, advised Mr Homer that PNLD would pay for him to do a law degree if he so wished. Mr Homer did not want to do a part time degree, particularly as he would not qualify until after he was 65 (PNLD's normal retirement age).

At the time of this discussion Mr Homer was unaware that obtaining a degree would have implications on his pay as his previous pay increments had been made without any reference to whether or not he had a law degree.

In 2005 PNLD identified that its failure to obtain and retain suitable candidates for the legal posts was due to the fact the staff were underpaid by comparison with similarly qualified persons in the market place and because there was no formal career structure in place. PNLD therefore put in place a three level career structure. However, the third level required that the applicant held a Law degree. Mr Homer's application therefore failed at this stage and as a result he was denied a pay rise.

Mr Homer presented a claim in the employment tribunal for indirect age discrimination.

Tribunal

Mr Homer claimed that he had been disadvantaged because he would not be able to complete a law degree before he retired and it therefore followed that he would not benefit from a pay increase.

The Tribunal held that the need to have a Law degree would put people in the identified age group (60-65), and did in fact put Mr Homer, at a particular disadvantage. The Tribunal found that Mr Homer, and others in his age group, were prevented from reaching the third threshold and any increased remuneration that came with it, compared to 30-59 year olds who were able to complete a law degree and acquire those benefits before PNLD's normal retirement age.

The Tribunal went to consider whether the discrimination was justified. They accepted that it was a legitimate aim to adopt criteria to facilitate the recruitment and retention of staff. However, the Tribunal held that the means of doing this were not proportionate. The Tribunal referred to the Acas guidance and concluded that the law degree could have been removed and that the appropriate standard of employee could have been recruited without a law degree being required in all circumstances.

The Tribunal further held that an exception could have been made for Mr Homer and that it would have been reasonable to have permitted him to be successful in his application to the third threshold even if he did fall outside the established criteria.

Appeal

The Chief Constable (CC) appealed, arguing that the requirement to hold a law degree did not discriminate against anyone of any age.

The EAT held that the financial consequence that resulted from being unable to complete a degree before retirement was the inevitable consequence of age and not a consequence of age discrimination. The Tribunal pointed out that a younger person who has a law degree will benefit for a potentially longer period of time but this is true of any benefit conferred on employees by the employer.

The EAT also held that an employer might be justified in making changes to improve the workforce even if these anticipated improvements are not realised.

Furthermore, the EAT did not agree that Mr Homer should have been made an exception to the rule. The EAT said that if unjustified indirect age discrimination was apparent all of those employees adversely affected by the rule must be treated equally.

The EAT upheld the appeal and substituted a finding that there had been no age discrimination.

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