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Find Previous Featured Articles | 
October 2011
Intellectual Property Update
September 2011
Commercial Disputes
July/August 2011
Holidays, Gym Memberships, Nights Out
June 2011
Social Media and Comparative Advertising
Visit Our Archive for previous newsletters covering Hospitality, Intellectual Property, Food & Drink, Commercial Property, Employment, Hotels, Restaurants, Start Ups and many other topics |
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Find Previous Featured Articles | |
October 2011
Intellectual Property Update
September 2011
Commercial Disputes
July/August 2011
Holidays, Gym Memberships, Nights Out
June 2011
Social Media and Comparative Advertising
Visit Our Archive for previous newsletters covering Hospitality, Intellectual Property, Food & Drink, Commercial Property, Employment, Hotels, Restaurants, Start Ups and many other topics |
|
Find Previous Featured Articles | |
October 2011
Intellectual Property Update
September 2011
Commercial Disputes
July/August 2011
Holidays, Gym Memberships, Nights Out
June 2011
Social Media and Comparative Advertising
Visit Our Archive for previous newsletters covering Hospitality, Intellectual Property, Food & Drink, Commercial Property, Employment, Hotels, Restaurants, Start Ups and many other topics |
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Greetings! 
Welcome to our November newsletter.
As your business grows or employees move on to pastures new, management time and energy will inevitably turn to recruitment, the topic of this newsletter.
Recruiting talented people in terms of qualifications, skills, personality and "fit" with your organisation can take an inordinate amount of time and skill. Perhaps you have a rigorous recruitment process with multiple interviews, psychometric tests or role-play; maybe you improve your candidate pool by hiring head-hunters to pick the best that's out there especially if they are working for a key competitor; or do you prefer to hire internally and boost company morale or take on a temporary worker to evaluate performance before offering a permanent role?
You may also have to navigate contractual restrictive covenants when hiring senior employees or teams.
Whatever your approach to recruitment, as with any other area of business, there is a legal path to follow. This month, our newsletter includes the following articles:
- The Agency Workers Regulations 2010 - what you need to know;
- Top tips to avoid discrimination when recruiting;
- Illegal workers and your responsibility as an employer.
Our featured client this month is Integral Search & Selection Limited, a leading executive search firm specialising in niche areas of finance including audit, consultancy, corporate finance, risk and compliance and taxation. They work closely with accountancy and law firms, financial service institutions and multinationals, advising in both the UK and internationally. If you are searching for a stellar candidate to fill a finance role or indeed are an employee looking for your own ideal position, then Integral's specialism, experience and commitment is something you should consider.
If you need assistance with your recruitment process, drafting an equal opportunities policy, hiring employees bound by restrictive covenants or any employment matters including contracts, handbooks, incentivising key employees by using bonus schemes and share options, restructuring and transfers, we can assist and provide guidance.
If you have any queries or need advice in relation to any of the matters set out in this newsletter or any other legal issues, do not hesitate to call us on 0207 440 2540 or e-mail us at info@fortunelaw.com. We are always happy to help.
Further information
Fortune Law provides businesses with "a one stop shop" service dealing with |
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Shainul Kassam
Fortune Law Solicitors |
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Featured Client
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Steve Skeates
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Integral Search & Selection Limited
www.integralsearch.com
"The team at Fortune Law have provided a very impressive service to us, always giving clear actionable legal advice, using their professional experience across a broad range of issues and delivering against business critical time frames. We would recommend them highly and will be using them again next time Integral needs legal advice."
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The Agency Workers Regulations 2010 - What You Need to Know 
If you employ workers provided by temp agencies, the Agency Workers Regulations 2010 ("Regulations") will have a significant impact on your business.
The Regulations, derived from EU law, came into force on 1 October 2011. They introduced new rights for agency workers, including:
- The right to the same pay and other "basic working conditions" as equivalent permanent staff after a 12-week qualifying period; and
- Access to collective facilities and to information about employment vacancies from day 1 of their assignment.
The definitions
An "agency worker" is someone who is supplied by a temporary work agency ("TWA") to work temporarily for a hirer, i.e. a temp.
A "TWA" is a business which supplies individuals to work temporarily for hirers or administer payment for the services of such individuals.
A "hirer" is a person engaged in economic activity to whom individuals are supplied, to work temporarily for and under the supervision and direction of that person.
Basic working and employment conditions ("Conditions")
Once an agency worker has been employed by a hirer for twelve continuous weeks, he/she is entitled to the same Conditions as if he/she had been recruited directly by the hirer. Broadly speaking, this means the same Conditions as those in permanent staff contracts in respect of pay, duration of working time, night work, rest periods, rest breaks, and annual leave.
Most notably, the agency worker will have to be paid the same "basic pay" based on the annual salary which he/she would have received including (for example) overtime, holiday pay, bonuses directly attributable to the amount and quality of the work; but excluding (for example) some bonuses, occupational sick pay, maternity, paternity and adoption pay, redundancy and notice pay.
Access to collective facilities and to information about employment vacancies
From day 1, an agency worker must have access to such collective facilities no less favourably than a comparable employee or worker.
Collective facilities may include: a canteen or other similar facilities; child-care facilities; transport services; toilet/shower facilities; a staff common room, waiting room, mother and baby room or prayer room; food and drinks machines; or car parking.
From day 1, an agency worker has the right to be told of any relevant vacancies with the hirer, in order to be given the same opportunity as a comparable employee or worker to find permanent employment. These must be notified by a general announcement in a suitable place at the hirer's establishment.
In summary, if you regularly hire temps, you may need to review their current pay and benefits and check that they are given access to all facilities and job vacancies. If you would like further advice on this area, please contact us on 020 7440 2540 or by e-mail at enquiries@fortunelaw.com.
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Top Tips To Avoid Discrimination When Recruiting
Whilst discrimination is a critical factor in all employment matters, and indeed since the advent of the Equality Act 2010 (the "Act") in all areas of life, recruitment is one area in which organisations should be particularly careful.
In essence, the Act specifies that discrimination is where a person is treated less favourably than others due to a "protected characteristic", these being age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; or sexual orientation. You should also not apply a discriminatory provision, criterion or practice in relation to the characteristics to any person (other than pregnancy and maternity).
When recruiting, an employer must not discriminate against or victimise a person in the "arrangements" it makes for deciding to whom to offer employment; by not offering that person employment; or as to the terms it offers that person employment (s39 of the Act); and it must not harass a person who has applied for employment (s40 of the Act). The concept of "arrangements" is wide. It may include the format and content of application forms; the physical arrangements, location and timing of interviews; and the job and person specifications. By way of example, a disabled person might complain that reasonable adjustments have not been made to enable them to attend an interview on the second floor of a building with no lift.
By way of warning, liability in this area can arise from the acts of your employees (subject to having taken "all reasonable steps" to prevent the discriminatory act) and recruitment agents if the acts are carried out with your authority (regardless of whether they are done with your knowledge or approval). You should therefore take action to ensure that everyone understands their obligations.
To avoid potential liability, and remember that there is no limit to the compensation which may be awarded in a discrimination claim by an employment tribunal, be mindful of the below:
- Word any advertisement or job description carefully: Avoid potentially discriminatory wording such as "waitress" which is gender specific or "young and energetic" which is age specific like the plague, unless there is a genuine occupational requirement; clearly state what tasks the person will have to do and what skills they will need; and do not include any requirement not directly linked to the job.
- Advertise in a diverse labour market: do not restrict your advertisements to publications or mediums which are aimed at specific groups. Consider which to use so as to reach the widest range of applicants.
- Give everyone a fair chance: If a disabled person applies for the role and reaches the interview stage, make "reasonable adjustments" to allow them to be interviewed, for example, meet them at alternative premises where possible.
- Shortlisting and interviewing: agree selection criteria based on the job description and person specification and mark applicants against these. Try to ask all interviewees the same questions and score their answers consistently. Steer clear of questions on candidates' personal lives unless they are directly relevant to the requirements of the job.
- Don't ask questions about disability or health prior to offering a job: the Act specifically prohibits this (s60), unless you are trying to monitor diversity, take positive action in favour of disabled candidates, or establish whether (a) a candidate is able to take part in some form of selection test; (b) you will need to make a reasonable adjustment to the interview or test for a disabled applicant; or (c) the candidate will be able to do something that is intrinsic to the role.
- Hire the best person for the job: it should go without saying, but ensure that you choose the best person for the role in question. Do not base your decision on any "protected characteristic".
- Equal opportunities - policy, procedure and training: You should have a policy in place setting out what is expected of staff in respect of the prevention of discrimination. Ensure all staff involved in the recruitment process have equal opportunities training.
If you need advice on the legal boundaries of a recruitment process, would like an Equal Opportunities policy drawn up, or have had a claim made against you under the Equality Act 2010, please do not hesitate to get in touch by telephone on 020 7440 2540 or by e-mail at enquiries@fortunelaw.com.
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Illegal Workers And Your Responsibility As An Employer
The Immigration Asylum and Nationality Act 2006 ("Act") applies in relation to those starting work "under a contract of service or apprenticeship, whether express or implied and whether oral or written" (s25(b)) on or after 29 February 2008. This means that the Act covers employees, workers, apprentices and suchlike.
It is illegal to employ someone who does not have the right to work in the UK or who is working in breach of their conditions of stay in the UK.
Those who have the right to work in the UK are:
- British citizens;
- European Economic Area (EEA) nationals (except Romania and Bulgaria);
- Swiss citizens;
- Spouses of British citizens, EEA nationals and Swiss nationals;
- Those who have the right of abode in the UK;
- Those who have indefinite leave to remain in the UK; and
- Commonwealth nationals who have a grandparent born in the UK or British Islands and have been granted permission to come to the UK on the basis of their UK ancestry.
How can you be sure you are hiring a person legally entitled to be here? Read on to see what checks you should be making and the penalties for failing to do so.
Sanctions
Under the Act, an employer may be liable to:
- A criminal offence if it knowingly employs an individual who does not have the right to undertake the work for which they are employed (s21), with conviction potentially leading to an unlimited fine and/or two years' imprisonment.
- A civil penalty if it negligently employs someone without the right to undertake the work for which they are employed (s15). This would be enforced by an Immigration Officer who would issue a notice to pay a civil penalty of up to £10,000 per individual who does not have the right to work.
The level of the civil penalty will depend on (amongst other things) any previous warnings and penalties the employer has had; the extent to which the employer took the statutory steps in order to establish the "full" statutory excuse (see below); and the employer's cooperation.
Do you have a statutory excuse?
The Act provides that an employer is excused from paying a civil penalty if they can show that they complied with any prescribed requirements in relation to the employment of an individual (s15(3)).
Basically, employers need to make certain checks before the employment begins. If all of these are carried out, they will be able to establish the "full" statutory excuse; if only a few checks are carried out, they may establish a "partial" statutory excuse and may incur a reduced civil penalty. The checks are:
- The request of original documents to establish the eligibility of the individual to undertake the work on offer. These will depend on whether the individual is subject to immigration control and restrictions on their length of stay;
- Checks on the validity and authenticity of original documents, such as confirming that the individual is the same as the person in any photograph; that the date of birth is the same in all documents and consistent with the individual's appearance; that any expiry date of leave to enter or remain in the UK has not passed;
- Making and retaining copies of original documents for the duration of the employment and two years after its termination. For example, for a passport, the employer should copy the front cover; any page containing the individual's personal details; and any page containing UK Government endorsements;
- Conducting annual checks on those who need immigration permission.
Detailed guidance on what is expected of employers may be found at on the UKBA website: CLICK HERE TO READ
We would also recommend adding a warranty to your employment contract so that your employees confirm that they are legally permitted to work in the UK so as to shift some of your burden to them as they will be in breach of contract if they are not entitled to work in the UK.
If you would like further advice on this area, please contact us on 020 7440 2540 or by e-mail at enquiries@fortunelaw.com.
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