This page contains information that has appeared on Sandy Adirondack's legal update website for voluntary organisations at www.sandy-a.co.uk/legal.htm. For current updates, including potential changes that are in the pipeline, see the legal update website.

These websites for each chapter update the 3rd edition of The Russell-Cooke Voluntary Sector Legal Handbook by James Sinclair Taylor and the Charity Team at Russell-Cooke Solicitors, edited by Sandy Adirondack (Directory of Social Change, 2009). The websites are not intended as a comprehensive update and should not be treated as such.

To order a copy of The Russell-Cooke Voluntary Sector Legal Handbook, print out the order form at www.sandy-a.co.uk/bookserv.htm or send an email order by clicking . It costs £60 for voluntary organisations or £90 for others, plus 10% p&p.

Chapter 29
TAKING ON NEW EMPLOYEES

REQUIRING PAID WORK EXPERIENCE MAY DISCRIMINATE AGAINST WOMEN

Added 2/12/12. This information updates ss.28.3.4 & 29.2.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3). .
Ballymagroarty Hazelbank Community Partnership (BHCP), a charitable organisation in Northern Ireland, advertised for two neighbourhood regeneration officers, with a person specification requirement for "two years' relevant experience in a community development capacity (paid) gained within the last five years".

During a six-year break from paid work to look after children, Nuala Crilly was involved in extensive unpaid community development and neighbourhood regeneration work. Although she had had paid jobs in the field before her career break, her work in the five years before applying for the post was all voluntary, and she was therefore not shortlisted. She brought a claim in the industrial tribunal (as employment tribunals are still called in Northern Ireland) on the ground that the requirement for relevant experience to have been paid discriminated indirectly against women.

The tribunal said it was settled law, backed up by statistics, that women are more likely to have caring responsibilities for family members and to take breaks from employment. A recruitment provision, criterion or practice that does not take this into account can therefore, unless it is a proportionate means of meeting a legitimate aim, be discriminatory.

BHCP said the requirement was necessary because they had recently lost key staff, and needed someone who could take on the full responsibilities of the post immediately, with minimal supervision and without needing extensive training.

The tribunal said the requirement for experience to have been paid was not appropriate and necessary to meet this aim, because relevant experience could have been obtained through voluntary work. In any case, the tribunal said, BHCP was to provide a two-month induction for the new staff members which could have covered gaps in Crilly's experience. In December 2011 the tribunal awarded Crilly £14,667 for injury to feelings and loss of earnings and interest.

The case transcript is on the Equality Commission for Northern Ireland website via tinyurl.com/cheub9w.

CHECKING RIGHT TO WORK IN THE UK

Updated 30/1/11. This information updates s.29.5 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Under the Immigration, Asylum and Nationality Act 2006, it is no longer enough for the employer simply to check and keep a copy of an employee's passport or other relevant documents at the beginning of employment. If a person who is hired on or after 29 February 2008 has limited leave to remain in the UK, the checks have to be repeated every 12 months. In addition, employers have to take action if they become aware at any stage that a person is working illegally. An employer can be fined £10,000 for each person found to be working illegally, unless they can show that they saw and kept a copy of the relevant documentation. An employer who knowingly hires someone who is not entitled to work in the UK could be subject to an unlimited fine and prison sentence of up to two years. The initial checks must be done before the person is employed, and to avoid allegations of racial discrimination should be carried out for all potential employees.

From 22 January 2011 an ID card issued under the Identity Cards Act 2006 is no longer acceptable as proof of identity. The Identity Documents Act 2010, which repealed the Identity Cards Act, is at www.legislation.gov.uk/ukpga/2010/40/contents/enacted.

But since 2 August 2010 an expired passport with indefinite leave to remain (also known as permanent residency) can be accepted by employers as evidence of the right to work in the UK. Certificates of the right of abode continue to be acceptable as evidence of the right to work only if they are in a current passport.

Updated guidance on checking the right to work, including illustrations of relevant documents, was published in November 2010 is available via tinyurl.com/5pr25w. Guidance specifically on checking the right to work of refugees, asylum seekers and people with humanitarian protection was published in August 2010 and is available via tinyurl.com/3635h2m

Workers registration scheme for workers from eastern Europe
Since 1 May 2004 nationals of Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia have had the right to work in the UK. The employer has to carry out a check (as above) to show they are a national of the country. If they are from an A8 state (any of the countries other than Cyprus and Malta), the employer should advise them to register immediately with the Home Office's workers registration scheme. This requirement was expected to end on 30 April 2009, but was extended to 30 April 2011.

The employer must check within one month of the person starting work that they have registered with the scheme, and the worker must remain registered until they have completed 12 months' work. A copy of the employee's registration certificate will be sent to the employer and should be kept. It is an offence for an employer not to comply with these rules, with a fine of up to £5,000.

Stricter rules, based on the old work permit system, apply to workers from Bulgaria and Romania.

Sources of information
Information about all aspects of immigration is available from the UK Border Agency (formerly Immigration and Nationality Directorate, and then Borders and Immigration Agency) at www.ukba.homeoffice.gov.uk/business-sponsors/ and its employers' helpline on 0845 010 6677.

The Immigration, Asylum and Nationality Act 2006 is at www.opsi.gov.uk/acts/acts2006/20060013.htm.

Go back to contents
Go to archived items about recruitment (VSLH3 chapter 29)

TUPE CASES AND GUIDANCE

Added 16/4/09. This information is included in s.29.7 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Some of this item is out of date. It will be updated early in 2012.
The Information Commissioner's Office issued in June 2008 guidance on the data protection implications of a transferring employer's obligation to provide information about employees to the transferee (the receiving employer) in a transfer under the TUPE regulations — the Transfer of Undertakings (Protection of Employment) Regulations 2006. For information about the obligation to provide this employee liability information, see www.sandy-a.co.uk/vslh/29recruitment.htm#tupe.

The ICO's guidance emphasises that the TUPE obligation to provide details of employees' identity, age, remuneration, and any disciplinary or legal action in the two years before the transfer overrides the data protection requirement not to disclose such information. All disclosed information must be accurate, up to date and secure, and the transferee must use the information only for the purpose of TUPE, for example assessing potential liabilities linked to the transfer. Information which is not required under the TUPE regulations should, if it is required for other purposes, be anonymised if possible.

The ICO's Disclosure of employee information under TUPE can be accessed via tinyurl.com/4en9nr.

On a separate TUPE matter: since 2006 there has been uncertainty about situations where a transferee is bound by a collective agreement negotiated between the transferor and a trade union, and a pay increase is negotiated by the transferor and union after the transfer has taken place. The employment appeal tribunal held in Whent v Cartledge in 1996 that the transferee is bound by the pay increase, even though the transferee was not a party to the negotiations. This changed in 2006 when the European Court of Justice ruled that the acquired rights directive does not apply to contractual changes agreed after the transfer.

But in February 2009 the employment appeal tribunal ruled that the UK can interpret the acquired rights directive in a way that is more favourable to employees. This decision, in Alemo-Herron & others v Parkwood Leisure Ltd, is at www.bailii.org/uk/cases/UKEAT/2009/0456_08_1201.html. The decision is being appealed, but in the meantime any employer which has taken on employees covered under a collective agreement with their previous employer — or is considering taking on such employees — should take legal advice about the potential implications.

SANDY ADIRONDACK
Governance and legal training and consultancy
for the voluntary sector
39 Gabriel House, 10 Odessa Street, London SE16 7HQ
Tel 020 7232 0726; fax 020 7237 8117
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Web: www.sandy-a.co.uk