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Migration on the move

Some major changes to business immigration rules have been proposed.

The Migration Advisory Committee (MAC) has just published its recommendations to reform the skilled worker route into the UK for non EEA (European Economic Area) nationals.  Last summer, the Government requested that the MAC undertake a review of both Tier 2 – General and Tier 2 -Intracompany Transfer (ICT) with a view to substantially restricting immigration using this route.

Tier 2 is the primary route for migration to the UK and migrants can enter the UK where they have an offer of employment from a UK company with a Tier 2 sponsor licence.

The MAC has made a number of key recommendations which include:
•    A minimum salary threshold for Tier 2 (General) and Tier 2 (ICT) migrants of £30,000.
•    An Immigration Skills Charge of £1,000 per year per Tier 2 migrant.
•    An increase in the qualifying employment period from 12 months to two years for the Tier 2 (ICT) route.
•    A more detailed job description on the Certificate of Sponsorship.
•    The Immigration Health Surcharge for Tier 2.
•    A new Tier 2 (ICT) for those carrying out work on-site for third parties with a minimum salary threshold of £41,500.

Although the Government is not obliged to follow these recommendations, historically the majority of changes proposed by MAC have been implemented in the past. If the recommendations are introduced, the cost of sponsoring non EEA nationals to work in the UK may be significantly increased. The changes are likely to have wide reaching effects on small employers and specifically those who employ professionals in social care and medical sectors.

The Government will consider the MAC report in light of the Immigration Rules which are due to come into force on the 6th April 2016. Although the proposed amendments are unlikely to be approved by then, it’s anticipated that we will see some changes introduced by the end of the year.

Safety First

Looking at the employer’s duty to adequately risk assess in order to ensure the safety of employees.

With the unpredictable weather that we have to endure each winter, employers who require their staff to go outside onto the streets as part of their job need to be aware of a decision by the Supreme Court earlier this month. The case of Kennedy v Cordia (Services) has a twist in the tale about an employer’s duty to adequately risk assess in order to ensure the safety of its employees.

Facts about the case
Tracey Kennedy was a home carer who was visiting the house of an elderly client in the winter of 2010. The street was covered with snow and ice and when walking along a path to the home she fell and injured her wrist. Ms Kennedy was wearing her own boots, with a flat, ridged sole and sued her employer for damages for breach of duty, as they had not provided her with crampon style attachments to wear with her boots which would have provided extra grip.

Decisions made
The case was originally heard in 2013, and the judge at first instance ruled that Cordia were liable for her injury. Cordia appealed and in 2014 the appeal judges overturned the earlier decision, they took the view that no employer was required to eliminate every danger faced by employees:

“The relationship of employer and employee is not to be treated as being the equivalent to that of nursery teacher and pupil, or that of parent and child…”

Tracey Kennedy appealed the decision to the Supreme Court and they unanimously allowed the appeal.

Reasons given by the Supreme Court
The relevant Health and Safety regulations require employers to carry out a suitable and sufficient risk assessment and this had been breached. Cordia knew of the risk that their employees might slip and fall on snow and ice when travelling to and from their client’s houses in winter, due to reports of similar incidents in previous years. Cordia also knew of the icy conditions on the night of the incident as those conditions had persisted for weeks.

The anti-slip attachments were available at a modest cost and had been found to be effective by other employers in reducing the risk. The judges inferred that the failure to provide the crampons caused or materially contributed to the accident.

Conclusion
This is an important decision in the approach to employers’ liability in the face of recent changes to health and safety law and public policy, which have arguably diluted some protections available to employees.

However, employers definitely need to risk assess and act prudently, indeed the warning as suggested by Lord McEwan in the first instance is that: “safety should be levelled upwards”.

Dundee Employment Law
Afren House
Whitehill Faulds
Bonnyton Road
Kirkton of Auchterhouse
By Dundee
DD3 OQT
T: 01382 320357
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