International Issues

Netjets Management Ltd v CAC is a significant decision for multinational, unionised businesses, which applied the case of Ravat v Halliburton Manufacturing and Services Ltd to applications for union recognition and held that an application by a union for recognition for collective bargaining could succeed in respect of pilots working for a European airline, in circumstances where they worked all over Europe and different aspects of their employment terms and conditions were handled in different jurisdictions, but factually the workers in the proposed bargaining unit had a strong connection with the United Kingdom.

1.     GENERAL INTRODUCTION

UK employment law makes a distinction between employees who work under a contract of employment and independent contractors who work under a contract for services.

An employee enjoys more legal rights than an independent contractor. However, some rights apply to both.  There is also a more recently developed third category of “worker”.  All employees are “workers”.  Some independent contractors are also “workers”.  (The distinction is important because although employees have the majority of rights, workers are entitled to paid holiday, national minimum wage and other provisions of the Working Time Regulations apply).

Some of the statutory employment rights also require additional qualifications, for example, for protection against unfair dismissal, a one-year period of continuous employment is necessary.

The decision of the EAT in Clyde & Co LLP v Winkelhof [2012] UKEAT 0568 holds that LLP members may be “workers” for the purposes of whistle-blowing protection, even if they are remunerated in part by a profit share.  The case concerned an equity member of an LLP who worked in part in the UK and in part for an associated firm in Tanzania.  She was expelled from the partnership after she made allegations of bribery against a partner of the associated firm.  She made a complaint that her expulsion was detrimental treatment on the ground of a protected disclosure.  She also made complaints of sex discrimination and pregnancy discrimination.

Commuting is no fun, unless you are fortunate enough to work from home, but imagine the plight of the international commuter.  Now at least they may have the comfort of knowing that they have employment law protection, as this case shows. 

This month sees a new case looking at the position of a domestic worker from overseas and the extent to which she could benefit from UK employment law rights.  The complications in Zarkasi v Anindita & Another  were that (i) this worker entered the UK using false documents obtained by her employer – with her full agreement and cooperation; (ii) she was thus an illegal immigrant with had no legal right to work in this country; and (iii) she believed - or at least was prepared to claim - that she had been the victim of human trafficking.

Compared with the United States, where there is no requirement for a written or verbal contract of employment and employers and employees can terminate the employment relationship at any time, for any lawful reason, and without notice; the laws governing recruitment and termination of employees in England and Wales may seem onerous.  However, compared with some other countries in Europe, hiring and firing employees in England and Wales is relatively straightforward.  There is no doubt, however, that the laws of the European Community are bringing the countries of Europe ever closer.  This article reviews the different factors to consider when hiring and firing employees in England and Wales.

 The key issues for employers to consider when hiring employees in England and Wales are:

1. Cost
2. Equal Opportunities
3. Immigration

From 27th November 2008 employers wishing to bring non-European Economic Area skilled and/or temporary workers to the United Kingdom will need to have what is called a “Sponsor's Licence”.

Licensed sponsors will be able to issue "Certificates of Sponsorship" to intending migrants. The migrant concerned can then use the certificate to apply for entry clearance.

This is all part of implementation of the new points based system for assessing the eligibility of non-EEA immigrants to work in the UK. The general rule under the system is that non-EEA migrants require a sponsor unless they are applying under the highly skilled tier known as "Tier 1". Skilled workers generally come under what is known as "Tier 2" and temporary workers come under "Tier 5".

There has been a radical overhaul of the immigration system in the UK, to a new Points Based System (“PBS”).  Previous immigration categories have been streamlined into 5 tiers, as set out below. The 5 tiers have been introduced in stages and now all but Tier 3 (which has been suspended) have been implemented.

The most significant of these changes has been the abolition of the old work permit system, on 26 November 2008, and its replacement Tier 2, which went live on 27 November 2008.