24/11/10

By Michelle Tudor and Susanna Fowler, Solicitors, Barlow Robbins LLP

Recent developments in two key areas of employment present new challenges to employers. We discuss these developments below.

Immigration Caps

On 19 July, the Coalition Government introduced interim limits on the Tier 1 (General) and Tier 2 (General) immigration categories for the period up to 31 March 2011. Permanent limits will be imposed from 1 April 2011.

The limit under Tier 1 (General) is 600 visas per calendar month for migrants applying from outside of the UK. Applicants are encouraged to apply for a visa in the normal way — and should do so as soon as possible — but are warned of delays if the monthly limit is reached. If this happens, applications are deferred until the next month which will no doubt create a backlog. Employers may find that this cap prevents or delays them from recruiting key senior people with the necessary skills and qualifications.

Under Tier 2 (General) a limit has been placed on the number of Certificates of Sponsorship allocated to employers who hold a sponsorship licence. Employers have seen their allocations reduced by up to 15%, with some occasional users of the sponsorship system being allocated no Certificates. As well as affecting the recruitment process, employers may be forced to dismiss a migrant employee who cannot extend their current visa. In doing so, employers should act fairly in accordance with their dismissal procedures.

Whether the interim limits remain in place is yet to be seen. The Joint Council for the Welfare of Immigrants has challenged the Government about these limits and the case is expected to be heard in the High Court very shortly.

Equality Act 2010

The Equality Act 2010 largely came into effect on 1 October, consolidating previous equal opportunities legislation and harmonising disparities in the definitions of the different types of discrimination. The Act also extends previous protection, adds new types of claim and enhances the Employment Tribunal’s powers to the workforce’s advantage.

In recruitment, to prevent discriminatory pre-employment screening, candidates should not generally be questioned about their health or disability before being offered a job. The prohibition has limited exceptions. Any questions must either assist the candidate in the recruitment process or be strictly necessary, such as where the role has an intrinsic physical requirement. More generally, protection against discrimination arising from disability has been extended so employees now no longer need to compare their treatment with another person.

Protection from harassment has been extended to instances where the harasser is unaware that the act offends or it is aimed at someone other than the complainant. For example an individual could claim harassment where there is homophobic banter which the individual finds offensive even if he or she is not homosexual.

Claims of direct discrimination can arise if employees receive less favourable treatment because of their association with someone who has a “protected characteristic”. For example, a non-disabled employee could claim discrimination because of receiving less favourable treatment by his or her association with a disabled child.

Employment Tribunals can make “appropriate recommendations” to reduce the adverse effect of discrimination on the individual and any other person. Such powers could assist an entire workforce by the recommended introduction of an equal opportunities policy or the publication of selection criteria for staff promotion.

Employers need to be even more pro-active in implementing their equal opportunities policies to avoid falling foul of the Act’s additional protection. However, some comfort should be taken from this codification of discrimination law as enabling employers to take a “one size fits all” approach to the management of equal opportunities.

Michelle Tudor michelletudor@barlowrobbins.com and Susanna Fowler susannafowler@barlowrobbins.com are Solicitors in the employment department at law firm Barlow Robbins LLP.