Tougher Rules on employing illegal workers under Immigration Act

The Immigration Act 2016 came into force on 12 July 2016. Immigration minister James Brokenshire said:

“Some employers seem to think that by employing workers who are less likely to complain, including vulnerable migrants, they can undercut the local labour market and mistreat them with impunity…. The unscrupulous need to know that breaking the law is a high-risk activity and the full force of the state will be applied to them.”

The Immigration Act 2016 makes a number of changes to address the criminal offence of employing illegal workers and to tackle the exploitation of low-skilled migrant workers. Illegal workers are defined as individuals that do not have leave to enter or remain in the UK, or are in breach of a condition preventing them from working.

UK employers already have to carry out immigration checks before employees start employment.  Previously, employers would have breached their duties by “knowingly” employing an illegal worker. Under the new Act, employers will commit are in breach if they employ someone they have “reasonable cause to believe” is disqualified from employment because of their immigration status. A Government Factsheet on the new legislation says:

“By making the test more objective we are making it easier to prove the offence.”

Employers must now undertake three checks in order to comply with the law:

  1. Obtain the employee’s original documents as prescribed in the Home Office Guidance.
  2. Check, in the presence of the employee, that the documents are original and valid.
  3. Copy and keep the documents securely and record the date of the check and date for follow up checks.

To avoid discrimination claims, employers should carry out right to work checks on all prospective employees, not just those who appear to be of non-British descent.

The Act also introduces increased scrutiny and tougher potential sanctions for employers:

  • The maximum custodial sentence on indictment has been increased from 2 to 5 years
  • A maximum financial penalty of £20,000
  • A visa levy (immigration skills charge) on employers that use foreign labour.
  • A new power is introduced to close premises for up to 48 hours where a business employs illegal migrants. If the employer cannot prove they carried out appropriate checks then the business could be placed under special compliance requirements, including a period of continued closure.
  • A new Director of Labour Market Enforcement will oversee public bodies which enforce the different minimum standards for workers, including HMRC.

While the Immigration Act 2016 is now law, the majority of new measures will take effect only once further regulations are made. If you have any questions or if we can help in any way then please contact Paul Neilly on 0141 552 3422 or by email pdn@mitchells-roberton.co.uk

Conversion of Long Leases to Outright Ownership in Scotland

Tenants under certain long leases in Scotland as from 28th November 2015 automatically became the outright owners of the property as a result of key provisions of the Long Leases (Scotland) Act 2012.

In contrast to England and Wales, long leases in Scotland are relatively rare. In 1974, legislation restricted the maximum length of newly created residential leases to 20 years with further legislation in 2000 restricting the maximum length of newly created commercial leases to 175 years.  This latest legislation in 2012 will now operate to abolish those remaining historic long leases which the Scottish Government consider grant a tenant a right more akin to ownership than the right of a tenant under a lease. The result is that the landlord will have no further interest in the property and the tenant will become the owner.

To qualify for conversion, a lease must:

  • Be registered
  • Have originally been granted for a term of more than 175 years
  • Have more than 175 years of the term left to run (if non-residential)
  • Have more than 100 years left to run (if residential)
  • Have an annual rent of £100 or less
  • Not be a lease of a harbour in respect of which there is a harbour authority
  • Not be a lease of minerals
  • Not be a lease granted for the sole purpose of installing and maintaining pipes or cables

As from 28 November 2015 the following happened:

  • The tenant’s interest under a qualifying lease automatically converted to ownership.
  • Tenants could chose to opt out of the legislation but landlords could not.
  • Compensation may have become payable to the landlord for loss of rent or other rights.
  • Certain lease conditions automatically converted into title conditions affecting the tenant’s new interest in the property for the benefit of neighbouring properties. Other lease conditions may have converted to title conditions on registration of a notice by the person entitled to enforce the condition.
  • The landlord’s title was extinguished on 28 November 2015 and any standard security over the landlord’s title ceased to have effect.
  • Any standard security over the tenant’s interest in a long lease will remain and the tenant will own the property subject to that security.

If a lease has not already been registered in the Land Register, the tenant (now owner) may apply for voluntary registration of their interest in the Land Register. As noted above title conditions affecting the original owner’s title will remain in place and some conditions in the lease may convert into encumbrances burdening the property. For example if there are any access or other rights benefiting the lease, these will transmute into rights benefiting the property.

Suc matters will need to be considered as part of any application for registration of a disposition of the property or application for a voluntary registration  in order for the Land Register to be accurate.

If  you need further information about the above or I can assist you in any way then please contact me Ross Leatham by phone 0141 552 3422 or email rjl@mitchells-roberton.co.uk

Cohabitants beware! Some legal considerations of living together

Marriage by cohabitation with habit and repute (otherwise referred to as “common law marriage”) was abolished ten years ago. And whilst it is true that the Family Law (Scotland) Act 2006 ushered in some protection, it by no means provides cohabiting couples with the same rights as their married counterparts. Consequently, when two people move in together, they should consider whether they need to set down in writing what should happen in the event that they split up or one of them dies.

Unlike married couples, where assets acquired by either party during the marriage are generally considered matrimonial property, cohabiting couples do not have such a common pot. There are equal rights in certain household goods, money and property used for the running of the household, but otherwise property is not deemed to be shared. If one party has on balance suffered an economic disadvantage as a result of the relationship, there is a possibility that they will have a claim against their former cohabitant but it can still be difficult to predict whether a claim will be successful as each case must be considered by the courts on its merits. A claim must be raised within one year of the couple’s separation and unlike married couples is for a capital sum only and does not include maintenance. So while it may seem unromantic, it is worth a couple considering entering into a cohabitation agreement when moving in together, to avoid any arguments at a later date.

Likewise, cohabitants should consider how they wish their property to be dealt with in the event of their deaths.  If there is no will, a cohabitant still living with the deceased up until their death, can apply to the court for an order for payment or a transfer of property, provided their application is submitted within six months of the deceased’s death. If the deceased has made a will and simply left their surviving partner out of it, no claim can be made. Making a will and keeping it up to date could therefore save unnecessary heartache and potential family disputes when one of the parties dies.

If  you require any further advice regarding the above then please contact Fiona Wayman by phone on 0141 552 3422 or by email on fiona@mitchells-roberton.co.uk

The New People with Significant Control Register

Following recent media focus on corporate transparency I thought it would be timely to give you a short update on the new People with Significant Control (PSC) Register which has been introduced as one of the many changes to the Companies Act 2006 brought about by the Small Business Enterprise and Employment Act 2015. On 6 April 2016 this new law came into effect requiring all UK Companies and Limited Liability Partnerships to keep a register of the people who can influence or control a company. The aim of the Act is to create greater clarity in the ownership and authority of UK companies, to help in the fight against money laundering whilst increasing the trust of the public.

The new PSC Register will include information such as the name, date of birth, nationality, nature of control, and home address of the PSC. The usual residential address and full date of birth of the PSC will not appear on the public record. The information set out in the PSC Register must be kept up to date. Individuals who may be at risk of violence or intimidation as a result of being on the register can apply to Companies House to have their information protected.

As from 30 June 2016, companies now require to file their PSC information at Companies House. In most cases this will form part of their confirmation statement which replaces the annual return from this date. It will take up to 12 months for the PSC Register to become complete because confirmation statements are filed throughout the year, with each company’s filing date being based on the anniversary of their incorporation. New companies registering after 30 June 2016 will have to provide their PSC information as part of the incorporation process.  Also from 30 June 2016 the PSC Register will be available to search free of charge.

While the obligation is on the company to create and maintain the register there are also duties on individual PSC. They have an obligation to notify the company within one month of becoming a PSC. They commit a criminal offence if they fail to notify or respond to a notice from the company which may result in a fine and or a prison sentence of up to two years.

It is thought that in terms of transparency this is a big step forward to help strengthen confidence in business and deliver real benefits to the UK economy as a whole.

If you require further information regarding this legislation please contact me Ross Leatham on 0141 552 3422 or by email at rjl@mitchells-roberton.co.uk

Should Women be Made to Wear High Heels at Work?

Dress codes are often used in the workplace and there are many reasons why an employer may have such a code.  For example in some firms employees may be required to adhere to some form of corporate wear to communicate a certain image. Or indeed a code may exist for purely health and safety reasons with perhaps health care workers not being allowed to wear jewellery around patients or certain clothing being prohibited in factories where staff are operating machinery.

A recent case, however, has highlighted potential issues with dress code policies. A 27 year old woman working for a City firm in London was sent home for apparently refusing to wear high heels. Nicola Thorp arrived at an accountancy firm wearing flat shoes but was told she must change out of her flat shoes to wear shoes with a 2-4 inch heel. She refused, complaining that male colleagues were not required to wear high heeled shoes and she was sent home without pay. Her employers defended their dress code.

There is no specific law on dress codes at work and Ms Thorp, feeling so strongly about the position she found herself in, set up a Petition to the Government, demanding “women have the option to wear flat shoes at work if they wish” and claiming “Current formal work dress codes are out-dated and sexist.” At the moment the Petition has picked up more than 20,000 signatures meaning the Government must give a comment. If it gets more than 100,000 signatures there is a possibility that MPs could debate the issue in Parliament.

The Equality Act 2010 prohibits discrimination on the grounds of a protected characteristic, which include age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

To help employers ACAS has issued the following guidelines:

  • Employers must avoid unlawful discrimination in any dress code policy.
  • Employers may have health and safety reasons for having certain standards.
  • Dress codes must apply to men and women equally, although they may have different requirements.
  • Reasonable adjustments must be made for disabled people when dress codes are in place.

As ACAS has further stated “a dress code should always be related to the job and be reasonable in nature.”

So did Ms Thorp suffer discrimination? UK employers can dismiss staff who fail to live up to “reasonable dress code demands” but according to Frances O’Grady, General Secretary of the TUC a dress code including high heels “reeks of sexism.” “High heels should be a choice, not a requirement.”

There are of course also health concerns. Tony Redmond a biomechanics expert at Leeds University  warned that “ From the point of view of the foot, high heels are a disaster.”  He alerts us to the fact that wearing high heels may cause some forms of arthritis, problems with knee joints and put people with weak lower backs at risk of slipped vertebrae. Emma Supple from the College of Podiatry has advised employers not to make women wear high heels at work because they “cause bunions, back problems, ankle sprains and tight calves.” As she says “All companies should be mindful of both the comfort as well as the smartness of their employees. These are not incompatible.”

In this case no claim has been put to an Employment Tribunal and the firm at the centre of the row has said it has now changed its policy allowing women to wear flat shoes depending on their preference. In a statement,Simon Pratt the Managing Director said “We are totally committed to being an inclusive and equal opportunities employer, actively embracing diversity and inclusion within our policies and procedures.”

But what would happen if a similar case were to be brought before a Tribunal? The employer would have to succeed on two points- that there was an objective reason for women to wear high heels, such as better job performance and they would have to justify why women had to wear high heels and why there was no similar requirement for men. I think this would be very difficult to prove.

If you have an employment law query Hugh Grant our employment law specialist is here to help. Please contact him on 0141-552-3422 or by email hjg@mitchells-roberton.co.uk

Improvement in Top Tier Residential Property Market

An article by Faisal Choudry of Savills has confirmed that Scotland has recently seen a rise in demand for prime property in commuter locations.

Initially the recovery in the Scottish market began in select city localities such as New Town, Stockbridge or Morningside in Edinburgh and the West End in Glasgow with these areas enjoying a strong market over the past few years. However the improvement is now spreading to more outlying places. Indeed over the past year there has been a jump in sales in locations such as Helensburgh and Kilmcolm and in fact in suburbs such as Liberton in Edinburgh and Netherlee in Glasgow  with the return of closing dates and premium prices being paid.

As Faisal Choudry reports “Scotland’s prime market is expected to grow by 18.8% over the next five years in terms of value, outperforming the overall residential market.”

If I can help with any residential conveyancing transaction please contact me Alison Gourley by telephone on 0141-552-3422 or by email on ajg@mitchells-roberton.co.uk

Employment Law 2016 – Key Financial Uplifts

  1. Introduction of the National Living Wage – from 1 April 2016, the National Living Wage took effect in the UK. All workers aged 25 and over are entitled to be paid a minimum of £7.20 per hour.

 

  1. National Minimum Wage Rates – from 1 October 2016, the apprentice rate will rise to £3.40, the minimum hourly rate for 16-17 year olds will increase to £4.00, 18-20 year olds will be entitled to a minimum of £5.66 and 21 -24 year olds must be paid at least £6.95 per hour. Penalties for employers failing to pay the above rates doubled from 1 April 2016 to 200% of arrears, subject to a maximum of £20,000 per worker.

 

  1. Unfair Dismissal Awards – from 6 April 2016, in unfair dismissal claims the maximum Compensatory Award has increased from £78,335 to £78,692. The Basic Award, which applies in addition, has increased from £14,250 to £14,370.

 

  1. Redundancy Pay – from 6 April 2016, the maximum amount of statutory redundancy pay has been increased from £14,250 to £14,370. The weekly figure at which pay is capped for calculating redundancy payments has increased from £475 to £479.

 

  1. Statutory Sick Pay – from 6 April 2016, the standard rate of statutory sick pay is £88.45 per week.

 

  1. Statutory Maternity, Paternity and Adoption Pay – from 6 April 2016, the standard rate of statutory maternity, paternity and adoption pay is £139.58 per week.

 

If you would like to discuss any employment law matter, please contact Hugh Grant (hjg@mitchells-roberton.co.uk) or Paul Neilly (pdn@mitchells-roberton.co.uk) or telephone 0141 552 3422.