6 bitesize updates for the New Year

The frantic pace of things over Christmas can make it hard to keep track of what's going on in the world of employment law. To help you catch up, this blog piece collects together some recent developments and expected changes on the horizon:

1. The Closure of Fit for Work Service

On 30 November 2017, a government press release announced that, following low referral rates, the Fit for Work (FFW) assessment services will come to an end in England and Wales on 31 March 2018 and in Scotland on 31 May 2018. In fact, the FFW website for England and Wales advises that referrals for assessments have already ceased with effect from 15 December 2017. Since by all accounts employers had little interest in using the scheme, the impact of this change is likely to be minimal, but it is worth removing any references to it you might find in your policies.

The government also published Improving Lives: The Future of Work, Health and Disability, which sets out the government's strategy to address three areas: the workplace, welfare and the health system. Importantly this includes reform of the fit note scheme. The government's internal review of the scheme concluded that while fit notes remain an important tool, they are not always used effectively across the board to support people staying in or returning to work. Too many fit notes still say "not fit for work" when people may be fit for work as long as appropriate adjustments are made. The government also proposes to extend certification powers to other health professionals alongside GPs.

Publication of the paper is intended to be the start of a ten-year programme of reform which will transform employment prospects for disabled people and those with long-term health conditions, with the aim of increasing the number of disabled people in work from 3.5 million to 4.5 million by 2027.

2. A reminder that the 20 minute compensatory rest break must be continuous

The EAT has held that a worker's right to compensatory rest for a 20-minute rest break under the Working Time Regulations 1998 (WTR) must be given as an uninterrupted rest break of 20 minutes. Allowing a railway signalman to take a number of shorter breaks throughout his shift, which in aggregate amounted to substantially more than 20 minutes, was not compliant.

In order to be compliant, the EAT held that the compensatory rest must amount to a break from work that lasts at least 20 minutes (Crawford v Network Rail Infrastructure Ltd).

3. New online service for obtaining basic DBS check in England and Wales

From 17 January 2018, the system for obtaining a basic criminal records check in England and Wales has changed. The Disclosure and Barring Service (DBS) has launched a new online application form for a basic disclosure certificate. The new system will cost £25 (the same as for previous checks via Disclosure Scotland) and the DBS anticipates it will provide faster turnarounds for certificates. The new website, which may be used by applicants living or working in England and Wales, can be found here.

4. A reminder that the expiry of a fixed term contract is a dismissal

An employer's compliance with the Fixed-term Employees Regulations does not necessarily mean it will have acted fairly when a decision is made not to renew a fixed-term contract, held the EAT in Royal Surrey County NHS Foundation Trust v Drzymala.

The EAT said that the general law on unfair dismissal applies to dismissals which arise from the non-renewal of a fixed-term contract. The question of fairness of a dismissal depends in the normal way on the facts of the case and the application of the fairness test in section 98(4) of the ERA 1996. Whilst dismissals by non-renewal of a fixed-term contract are potentially fair for "some other substantial reason", they are not a special case attracting different considerations from those normally considered under section 98(4).

A useful reminder that it is not enough simply to let time run its course in relation to fixed term contracts; some sort of procedure and consideration of the reason for termination is required in the run up to such a contract ending.

5. Installing covert surveillance to monitor workplace theft violated employees' Article 8 privacy rights

The European Court of Human Rights held, in Lopez Ribalda & Ors v Spain, that covert surveillance at work breaches the ECHR Article 8(1) right to privacy. A supermarket installed covert and visible surveillance cameras to address suspected theft but workers were only told about the visible cameras. They were not told about those which had been placed covertly. Several employees were dismissed relying on covert images and the ECtHR held that Article 8 had been violated. Video surveillance in the workplace is a considerable intrusion into private life; it extends to personal appearance.

Some may feel the outcome of this case harsh on the employer, since the employees in question were caught quite literally with their hands in the till. However, it seems this was not enough in this case and, even more so now, employers must only undertake covert monitoring with extreme caution and advice. To comply with data protection laws, employees must also be "explicitly, precisely and unambiguously" informed of the existence of a personal data file, how data will be processed, the purpose for collection and the recipients of the data.

6. Immigration

On 7 December 2017, the government announced changes to the Immigration Rules. The changes:

Provide for entry clearance to be issued electronically (as opposed to the traditional stamp in a migrant's passport).

• Clarify and remove inconsistencies relating to indefinite leave to remain in the UK for main applicants and their dependants in work categories.
• Double the number of available places in the Tier 1 (Exceptional Talent) category and allow accelerated settlement for certain applicants (increased from 1,000 to 2,000 places a year).
• Consolidate and clarify the rules for Tier 1 (Entrepreneur) applicants – they will no longer be able to rely on funds or investments that have been provided by another Tier 1 (Entrepreneur) migrant, or that migrant's close family.
• Introduce new Tier 2 provisions for research positions and for students switching to sponsored employment under Tier 2.
• Take account of the commencement of the immigration bail provisions in Schedule 10, the Immigration Act 2016, which the government proposes should come into force "as soon as possible".

The key policy changes came into force on 11 January 2018. Applications submitted before that date will be decided in accordance with the Immigration Rules in force on 10 January 2018.

Overall, the proposed changes can be seen as largely positive for migrant workers and their sponsors. The electronic entry clearance proposal could help to streamline the application process for migrants applying overseas. The additional clarification in respect of Tier 1 (Entrepreneur) attribute requirements is welcome news for one of the categories with the highest application rejection rate. Tier 2 migrants with over 60 days of breaks in their employment during their time in the UK will welcome the chance still to qualify for indefinite leave to remain and sponsors will benefit from being able to sponsor a student once they have completed their course of study in the UK rather than having to wait for their results to be published, often months later.

However, it is the extension of the absences requirement to Points Based System (PBS) dependants for indefinite leave to remain applications which is the most significant change. This change has been threatened for some time and may result in potential migrant workers being deterred from coming to the UK if their dependants are not prepared to make the commitment of spending at least half of each year in the UK from the outset.

If you require further information on anything covered in this briefing please contact Louisa Steele or your usual contact at the firm on 020 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

(c) Farrer & Co January 2018