Q – I employ a number of EU nationals in my business. Now that the UK has voted for Brexit, can I continue to employ them?
A – For now the UK remains a member of the EU and so EU nationals continue to be able to travel freely and work in the UK. What happens when we actually leave the EU will depend upon the precise terms of the divorce.
If the UK chooses the ‘Norway option’, and remains part of the European Economic Area, then there will still be freedom of movement and EU nationals working in the UK will not be affected.
If the UK leaves the EU and does not negotiate to maintain freedom of movement rights, then EU nationals working in the UK may be required to apply for visas under the UK’s immigration rules. The precise terms will depend upon the arrangements agreed between the UK and EU.
This is an unsettling time for EU nationals working in the UK. You can provide them with reassurance in the short term, but the position in the long term will not become clear for some time.
Q – I thought that a Brexit would mean that workers’ rights would be reduced. Is this going to be the case?
A – Again, while the UK remains in the EU, European employment laws will continue to apply. In theory, once the UK leaves, the UK government will have free reign to amend or repeal EU employment laws. Due to the large volume of employment law that comes from the EU though, I expect that the government, whatever its make up at the time, would take a piecemeal approach to reviewing which laws are suitable for changing, rather than having a ‘big bang’ of deregulation upon departure from the EU.
Many EU employment laws, such as pregnant workers protection and protection from unlawful discrimination, are generally seen by employers and employees as a good thing and there does not seem to be any real desire to remove such protection.
However, based on previous pressure from employers to reduce regulation, the rights that are most likely to face calls for removal include the Agency Workers Regulations, which guarantee temporary agency workers equal treatment with permanent employees, and parts of the Working Time Regulations, including how holiday pay is calculated, its accrual during sick leave and the limit of a 48 hour working week.
Those representing employees’ interests are unlikely to accept such changes without a fight, and so employment law reform could be a hot topic at the next general election, whenever that may be.
If you would like to discuss the issues detailed above, please contact Senior Associate, Ben Stepney, on 01892 701359 or at firstname.lastname@example.org .
Times of Tunbridge Wells Q&A - 2015
Each month Thomson Snell & Passmore will be answering frequently asked questions from across the practice. Taking the lead this month, is Susanna Gilmartin a partner from our Employment team who has answered two common issues facing both businesses and individuals.
If you have a legal question you would like featured in this monthly Q&A please submit it to email@example.com.
Q: I recently refused an employee’s request to take holiday. On the first day that they requested to take off as holiday, they called in sick. How can I deal with this?
A: Take care not to immediately make assumptions, if you have doubts about whether the employee is genuinely ill. Your starting position should be to give them the benefit of the doubt that their illness is genuine.
We would however suggest that you make some initial enquiries - for example check social media platforms like Twitter or Facebook feeds and speak to colleagues at work as this may flush out the true position.
If you acquire evidence that he is on holiday then on his return to work, invite him to an investigatory meeting. If the evidence suggests that the employee has been lying, then you may be entitled to discipline and dismiss - dishonesty is likely to amount to gross misconduct as would be obtaining financial advantage (payment of salary) by deception. Take care to follow your company’s disciplinary procedure and the ACAS Code of Practice.
If the employee is able to produce a fit for work note covering his absence then you will have to accept that they were sick.
Q: I am pregnant and I recently read that as my baby will be born after 5 April 2015 my husband and I can share my maternity leave and maternity pay to care for our child. If we want to do this, what do we need to do?
A: In order for you both to be eligible to take Shared Parental Leave (SPL) you will have to have been employed continuously for at least 26 weeks by the end of the 15th week before your due date and will need to be employed by the same employer while you take SPL. Your husband will need to be able to show that during the 66 weeks before your baby is due he has been working for at least 26 weeks and earned at least £30 a week on average in 13 of the 66 weeks.
You will be required to take your 2 weeks’ compulsory maternity leave after the birth of your child and your husband will still be entitled to take his 2 weeks’ paternity leave but after your 2 weeks’ compulsory maternity leave, you and your husband could opt into SPL and share the balance of your statutory maternity leave and maternity pay.
To opt-in, you and your husband will need to submit a notice of entitlement and declaration of intention to take SPL with your respective employers at least 8 weeks before the start of a period of SPL.
If you would like to find out more about topics above, or would like to discuss an employment issue in more detail please contact Susanna Rynehart on 01322 422540, or another member of the employment team via our employment page.