IGA News

Be Aware - May 2019

Be Aware - May 2019

30 April 2019

Brexit – implications for employment law

This note outlines the expected implications for UK employment law of the UK’s withdrawal from the EU.

The government has published draft legislation intended to implement its commitment to protect workers’ rights after Brexit. On 6 March 2019 the government published ‘Protecting and Enhancing Worker Rights after the UK withdrawal from the EU’. In the accompanying press release the government stated that it has committed ‘not to reduce the standards of workers’ rights from EU laws retained in UK law’ and that it will ‘ensure that new legislation changing those laws will be assessed as to whether they uphold this commitment’.

The draft legislation provides, among other things, that whenever the government introduces a new Bill that may affect employment rights, a Minister will be required to consult workers’ and employers’ representatives and then make a statement to Parliament before Second Reading. The statement must either be to the effect that, in the Minister’s view, the Bill will not result in the regression from any pre-exit EU workers’ right, or that, although the Minister is unable to make such a statement, the government nevertheless wishes the House to proceed with the Bill. The draft legislation also includes provisions requiring the government to report on new, post-Brexit EU workers’ rights, such as those introduced by future EU Directives, and to state whether domestic law includes the same kind of right and, if not, whether the government intends to take any action.

The government will be obliged to consult with workers’ and employers’ representatives before making such reports. As part of the policy paper there are also proposals to introduce a single enforcement body to protect vulnerable and agency workers.

EU-derived employment law

A significant proportion of the UK’s employment laws have their basis in UK legislation. EU employment law provides a minimum standard below which domestic employment law must not fall. Examples include:- rights relating to discrimination, maternity rights, equal pay, temporary agency workers’ rights, limitations on working time and protections on the transfer of undertakings.

Subject to the provisions of the EU withdrawal agreement or subsequent trade agreement, withdrawal from the EU would mean that UK employment rights currently guaranteed by EU law would no longer be so guaranteed. However, the existing government has made a commitment to ensure that workers’ existing rights are retained.

Draft withdrawal agreement

The draft withdrawal agreement endorsed by leaders at a special meeting of the European Council on 25 November 2018 provides that workers will continue to enjoy the following:

  • The right not to be discriminated against on the grounds of nationality as regards employment, remuneration and other conditions of work and employment
  • The right to take up and pursue an activity in accordance with the rules applicable to the nationals of the host State or State of work
  • The right to equal treatment in respect of condition of employment and work, in particular as regards remuneration, dismissal and in case of unemployment, reinstatement or reemployment
  • Collective rights
  • The right for their children to be admitted to the general educational, apprenticeship and vocational training courses under the same conditions as the national of the host State or State of work, if such children are residing in the territory where the worker works.

Agreement has been reached that the transition will be 30 March 2019 and 31 December 2020. This is the government’s formal indication of its plans both legally and operationally in relation to settled status, however the final position may be subject to change:-

  • EU citizens and their family members will be able to apply for settled status (indefinite leave to remain) or pre-settled status (limited leave to remain) under the scheme if there are resident in the UK on or before 31 December 2020, and
  • In the case of settled status applicants, they have lived in the UK continuously for 5 years or more
  • In the case of pre-settled status applicants, they do not meet the residence requirements for settled status
  • In the case of those who have been issued with a permanent residence document, they have not been absent from the UK for a continuous period of more than 5 years

Legal mechanism for ending the free movement regime

The government has stated that it would be bringing forward an Immigration Bill in the next Parliament to ‘repeal the EU-derived free movement provisions so as to be able, on our exit from the EU, to bring EU citizens fully within the scope of UK law’. This might aim to put in place the foundations for a new immigration regime for EU citizens (who currently do not require leave to enter the UK). It is currently unclear as to what is the government’s precise intention as regard how and when the existing EU free movement regime will be terminated, and as to the transition. It is likely that many key issues will be the subject of negotiation with the EU (such as, in particular, whether or not there should be a preferential immigration regime for EU citizens as against nationals of other countries). Both the government and the EU have indicated a wish to negotiate at least some reciprocal arrangements for the movement of persons.

Priorities for employers

A suggested priority would be an examination of the organisation’s current staffing in the UK to see what potential immigration issues might arise post-Brexit. Businesses should also consider how many EU (non-UK) citizens they employ and whether the business is heavily dependent upon EU employees, either skilled or unskilled. Employers should work with their HR teams to understand the needs and concerns of their workforce and the impact any loss of ability to retain or employ non-UK employees might have on the business.

Brexit continues to be an ongoing transitional process and should be monitored and actively reviewed by employers.

Contractual Benefits

A recent court case has highlight how important it is to be clear in employment contracts. In the case of ICTS Limited v Visram an employer was contractually obliged to provide an employee with long-term disability benefits until his “return to work”.

Mr Visram went on sick leave with work-related stress and depression and was dismissed for incapacity. As a result of his dismissal Mr Visram complained that he had lost his contractual disability benefits and issue a claim in the tribunal of unfair dismissal and disability discrimination.

ICTS Ltd argued that the entitlement would cease once he was capable of taking up some kind of paid employment.

Decision

The EAT disagreed. Assessing the remedy, the tribunal held that “return to work” meant return to the work from which he had gone sick. There was no prospect of the Claimant ever being able to do that, so he was entitled to be compensated for loss of benefits until death or retirement.

Comment

This will be an uncommon occurrence, but where employers provide contractual benefits care should be taken to ensure that these are reviewed, and any definitions and wordings are carefully constructed to avoid any unintentional consequences. Concerned employers should consider reviewing any such benefits. Should you find yourself in this situation you have access to the RMIF legal helpline for telephone advice.

Dash Cams

“I have had a customer use a dash camera to record my work on their vehicle. Is there anything I can do to stop it”

Dashboard cameras, or ‘Dash cams’ are becoming more common on our roads. Which means they are becoming more common in our garages. Garages needs to be aware of the issues raised and consider what policies to put in place in advance in order to ensure you remain on top of the issue. But what is the legal position?

The law

The use of CCTV is covered by a number of acts of parliament. However, most of these are designed to regulate the use of CCTV by the government and public bodies. The main act to cover private use of CCTV is the Data Protection Act 2018 (DPA). This provides general principles that govern the collection and use of data, including CCTV Footage.

All personal data must be collected and processed in line with the DPA and the principles established under it. The collection must be

  • Fair and lawful
  • For a legitimate and define purpose, and
  • Retained only as long as reasonably required.

As the controller of any system would have to comply with DPA, the Information Commissioners Office has produced a code of practice for surveillance cameras and personal information code of conduct.

Fair and Lawful

Consent is needed before any person can be recorded. Where this recording is carried out in a public place then such consent can be implied. This will not apply where any filming is carried out in an area where privacy can be expected. If the workshop in question was a private area with no viewing area open to the public. For any recording to fully comply with the law then the car owner would have to post clear signs on the vehicle.

Can I Object?

In a public area, no. However, any recording on private property can be restricted by the property owner. As such even with clear signage on the vehicle any motor trader can limit or prohibit dash cam use on their premises.

What precautions can I take?

A basic precaution would be to inspect all vehicles for dash cams. These devices only create problems where they record information that, for whatever reason, the garage does not want to be made public.

Whilst we are yet to see any significant security problems due to dash cams, we have had several instances where staff behaviour has cause problems. This has ranged from harmless but unflattering comments about the owner to speeding during the test drive.

Where a camera is present, staff should at least be on their best behaviour!

As both the property owner and employee can withdraw such consent, businesses can put clear policies in place to prohibit and/or limit dash camera use. However, do you want to.

There are many legitimate reasons for prohibiting video recordings on your premises. These can include protecting customers’ privacy and property from damage or to protect sensitive data/security. However, customers may want to know why this was necessary and what is the business hiding.

Can I disconnect dash cams?

Yes. However, we would advise that customers are clearly advised this will happen. You also need to be careful. You will be liable for any damage to the dash cam if you are negligent. It is also important to ensure that dash cams are turned back on after the work is done. We have had incidents where accident that would have been recorded have not been. Whilst this will not automatically result in a liability for the motor trader it is possible, and it will at least damage your reputation.

Conclusion

There is no right answer in this area. Dash cams can establish good practice and reputation, but they can also result in damage to your reputation or worse. For example, dash cam footage could mean that the layout/ contents of your Worksop could be put online or that alarm and security codes are recorded. There has been a case where a workshop was caught by the customer’s dash cam racing the customer’s car at speeds up to 118mph. You will need to assess the risks of cameras to your business

Our advice is to put a clear policy in place so that staff and customer are aware of their responsibilities and what actions will be taken with regards both the presence of dash cams as well as the behaviour expected where they are present.

Conculsions

Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, call the direct member helpline or 0845 305 4230 at any stage for advice and assistance as appropriate.