Month: March 2020

What points should a furlough agreement cover?

During these times many directors will have to make an uneasy decision to furlough members of staff. In this scenario, employers have to follow a certain procedure, including the furlough agreement.

What points should a furlough agreement cover?

A non-exhaustive list is as follows:

– Agreement to take a temporary leave of absence
– Start date of the leave of absence (including backdating if relevant, where no work has been carried out by the employee).
– In cases of employees already made redundant, the agreed withdrawal of termination of employment because of redundancy and, if relevant, repayment of any redundancy payments, payments in lieu of notice and/or severance payments already made.
– A mechanism for the employer to end the leave of absence: probably a short notice period of (say) one week.
– An agreement that the employee will not be required or allowed to carry out any work for the employer during the leave of absence.
– Pay during the leave of absence, including (if relevant) agreement by the employee to accept a level of pay lower than contractual.
– An agreement that a leave of absence will be treated as using up statutory and contractual holiday entitlement.
– Confirmation that statutory rights, such as rights to maternity, shared parental or adoption leave and pay, will continue.
– An agreement to accept delayed payment if any payments to the employer under the scheme are delayed.
– Provision of up-to-date contact details for the employee; agreement by the employee to remain contactable.
– Provision for the furlough agreement to be varied unilaterally by the employer (subject to consultation with the employee) to reflect the terms of the scheme and any changes to the scheme which may be introduced.
– An agreement that, subject to the terms of the furlough agreement, the express and implied terms of the contract of employment remain in force. With this in mind, you should check the contract of employment for any additional terms which may need to be temporarily varied.

 

Please kindly note, the information is provided for reference only. Every situation is unique, and we strongly suggest you seek legal advice before taking any action. You can contact us through:

contact@sterling-law.co.uk

07 305 966 531

Covid-19: Delays in decision-making

As the Covid-19 situation progresses, the UK has entered into a complete lock-down. This means that not only bars, cafes and restaurants got closed but also governmental organisations have shortages of workers or are closed. Furthermore, the immigration tribunals have temporarily closed.

This means that the clients who have applied for visas or are waiting for a decision from a Home Office or immigration tribunal should be expecting severe delays. However, this will not have any negative effect on you. All the enforcement actions have also been stopped and the authorities cannot ask you to leave the UK. Furthermore, even if your decision is a refusal, the timeframe for appeal would only start from the moment we receive that decision.

It is very likely that you will not hear from the Home Office or the immigration tribunal in the upcoming months. We are doing everything we can for our clients, these absolutely exceptional circumstances are not under the control of legal representatives.

If your visa is about to expire or has expired already and you were expecting to receive a decision from the Home Office, all the visas can be extended until 30 May 2020 if you are unable to travel home because of the closure of borders or self-isolation.

You can always contact us on contact@sterling-law.co.uk

or on 07 305 966 531 (Viber, Whatsapp)

One of my employees tested positive for Covid-19. Should I tell others?

Should I tell the staff if one of the employees has tested positive for Coronavirus?

As the situation with COVID-19 develops and more people get infected, there is an issue of whether the employer should inform the rest of the staff if someone gets infected. The balance should be stroke between the employer’s duty to take care of its employees’ health and duty not to disclose medical data. There is no black and white answer to this. However, there are several ways to handle this delicate situation:

1. You can inform the rest of the staff that someone was tested positive without disclosing their name. In that case, it will also be necessary to inform employees who were in direct contact with the infected person. 

2. If there is a possibility to work from home and the office gets shut down, there is no need to inform the rest of the stuff. 

3. If any of your employees are key worker, then the small group of that key workers has to be informed. 

There might be a situation where employees demand disclosure of the infected individual. In that case, you need to obtain consent of an individual for disclosure of such sensitive information. If the employee is unable to give consent or declines, we advise not to give out their name unless it is highly necessary to protect staff wellbeing.

 

Contact us:

contact@sterling-law.co.uk

07 305 966 531

Covid-19: 11 useful resources

You might find useful the following resources in relation to the Covid-19 outbreak:

  1. https://www.gov.uk/coronavirus

This website contains pretty much everything you need to know about the outbreak and how it affects your life

2. https://www.gov.uk/guidance/coronavirus-covid-19-information-for-the-public

Number of cases in the UK, risk assessment, advice

3. https://www.nhs.uk/conditions/coronavirus-covid-19/

A word from NHS on coronavirus

4. https://www.hse.gov.uk/news/coronavirus.htm

Health and Safety Executive website. On face mask, protection for workers and much more

5. https://111.nhs.uk/covid-19

NHS self-assessment tool for symptoms

6. https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19

Guidance for employees, employers and businesses

7. https://www.acas.org.uk/coronavirus

Employment advice from ACAS

8. https://www.gov.uk/government/news/visas-extended-for-those-currently-unable-to-return-home-due-to-covid-19

Home Office update for those unable to leave the UK due to the outbreak. Useful if you are a visa holder.

9. https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-uk-visa-applicants-and-temporary-uk-residents

Immigration advice from the Home Office in relation to the virus

10. https://www.worldometers.info/coronavirus/

Live stats on the outbreak

11. With many of us now working remotely and relying on our phones more than ever, unfortunately, phone scams are on the rise. How to spot, stop and prevent – invaluable leaflet from Met Police.

Little Booklet of Phone Scams

 

If you require specific legal advice let us know:

contact@sterling-law.co.uk

07 305 966 531

Coronavirus Job Retention Scheme

On 20 March 2020, the Chancellor, Rishi Sunak, announced that the government would help employers to pay the wages of those employees that would otherwise have been laid off during coronavirus outbreak. According to new Coronavirus Job Retention Scheme (the ‘CJR Scheme’) 80% of employee’s wage would be covered by government capping at a maximum £2,500 per month.

 The new governmental scheme provides support for any business in the UK. According to the Chancellor ‘any employer in the country small or large, charitable or non-profit, will be eligible’.

 How to become a part of the Coronavirus Job Retention Scheme?

Employers will need to designate affected employees as ‘furloughed workers’, notify those employees of the change and obtain their agreement. The information will then have to be submitted to HMRC through a new online portal (which is not set up yet).

 How much will employers get reimbursed?

HMRC will reimburse 80% of furloughed workers “wage costs, up to a cap of £2,500 per month”. Chancellor has emphasised that the reimbursement is a ‘grant, which means that employers will not need to repay anything to the government later on. The scheme is also backdated to the 1 March.

 However, it is still unclear whether the £2,500 cap applies to the wage after a 20% reduction or total wage? There is also a question of how the ‘wage costs’ will be calculated under the CJR Scheme when the employee works flexible hours and their pay is not fixed. The government might use the formula of ‘weekly pay’ which will calculate the average pay from 12 to 52 weeks.

The requirement of ‘otherwise have been laid off’

The CJR Scheme applies to any employee who would otherwise have been laid off.

It is first of all unclear whether the government will permit employers to designate those employees who have already been laid off as ‘furloughed workers’.

Second of all, the Chancellor has not stated how will the government assess which employees would otherwise have been laid off. Most probably, they will ask to provide certain evidence for the employer to qualify for the scheme.

The requirement of ‘should not undertake work for an employer while furloughed’

Under the CJR Scheme, an employee that has been designated as ‘furloughed’ cannot do any work for the employer. For the employers that do not shut down their business completely but still require some work to be done the best solution would be to retain part of the workforce at their normal hours and rate of pay, while designating the rest as furloughed workers.

It is unclear whether it is possible to rotate employees. For example, theoretically, employer could designate half of the workers as furlough for week 1 and then designate the other part as furlough for week 2.

What’s next?

This is surely an unprecedented situation that leaves a lot of unanswered questions by both employers and employees. A lot of businesses, in the current situation, will be thinking of shutting down completely even after the crisis has passed. This might encourage them to terminate employment contracts rather than designating employees as furloughed. The more guidance is required from the government for the businesses to know which course of action to take as many employers around the country are struggling with ensuring the survival of the business and preservation of the workforce.

 

You can contact us at contact@sterling-law.co.uk

Or use 07 305 966 531 for messengers

Covid-19: Guidance for Tier 2 & Tier 5 visa holders and their sponsors

CORONAVIRUS AND TIER 2 HOLDERS:

KNOW YOUR RIGHTS AND RESPONSIBILITIES

 

Due to the coronavirus pandemic, many Tier 2 and Tier 5 migrants and their employers are unsure of how absences due to illness may affect their visa. Here are some facts you should know:

  1. Sick leave can be taken by those who are self-isolating due to the coronavirus outbreak/ illness. Sick leave is an acceptable absence which can be taken in addition to the permitted annual leave of up to 4 weeks.

Moreover, Employers will not be required to report any migrant’s absences, where those absences have been a result of the consequences of the coronavirus outbreak.

  1. Sponsors will also not be required to withdraw your sponsorship for employees who have exceeded four weeks of absence without pay.
  2. Sick Employees, including Tier 2/ Tier 5 visa holders, are entitled to Statutory Sick Pay (SSP) – £95.85 per week for up to 28 weeks.

For businesses with fewer than 250 employees, the cost of providing 14 days of statutory sick pay per employee will be refunded by the government in full.

  1. The reduction in salary due to sick leave may cause your salary payments to fall below what was stated in your CoS, the advertisement for your job and even the appropriate rate stated in the SOC code.

However, if the reason for the reduction is SICK LEAVE (incl. due to coronavirus) your sponsor is NOT obliged to stop sponsoring you or to report it to the Home Office. However, this may affect your ability to obtain Indefinite Leave to Remain as a Tier 2 migrant where the salary threshold of £35,800 should be met.

  1. Positive news which is certain: The salary threshold in the eligibility criteria for indefinite leave to remain under Tier 2 will not increase annually following the recommendation of the Migration Advisory Committee. As a result, it will remain at £35,800 for all applications submitted on or after 6 April 2019 (paragraph 245HF(vi)(3) of the immigration rules).
  2. The Coronavirus Job Retention Scheme in which the Government will reimburse 80% of furloughed workers’ wage costs will be also available to employers in regards to Tier 2/ Tier 5 migrants.

 

You can download the guidance in Word format below:

Guidance for Tier 2 & Tier 5 visa holders and their sponsors

If you have any questions you can always contact us at

contact@sterling-law.co.uk

or +44 7 305 966 531 (Viber, Whatsapp, Telegram)

Home Working Policy template

Please feel free to download this template. If you have any specific needs or require any adjustments, please let us know.

Home working policy template

If you have any questions you can always contact us at contact@sterling-law.co.uk

Or call us on 07 305 966 531 (Viber, Whatsapp, Telegram)

Please kindly note, the template is provided for reference only. It is always best to consult with a lawyer before implementing any changes. Contact us to seek legal advice.

EEA Family member: permanent residence application after refusal

Our client, a non-EEA national, initially obtained a residence card as the spouse of an EEA national. Our client subsequently divorced from his EEA national spouse and obtained a residence card under the Retained Rights route. The client then applied for permanent residence, which was refused and a subsequent appeal was dismissed by First-Tier Tribunal as the Judge wrongly thought the client needed to be a qualified person, not his EEA national spouse during the time their marriage lasted. Permission to appeal on this basis was granted. 

Between the refusal and appeal, on behalf of our client, we applied for indefinite leave to remain under Appendix EU (also known as settled status). Our client successfully obtained ILR under Appendix EU. Despite this, the client still wanted to assert his rights under EU law and proceed with his permanent residence appeal.

In their Rule 24 response to the appeal to the Upper Tribunal, the Home Office asserted that the grant of IRL under Appendix EU to the Immigration Rules meant the appeal under EEA Regulations should be treated as abandoned. Sterling Law disagreed and made representations to the Home Office and Upper Tribunal on this basis. At the Upper Tribunal hearing, the Home Office conceded that an appeal under EEA Regulations cannot be abandoned by a grant of leave under domestic law. The Upper Tribunal agreed, and found as follows:

Our conclusions on the abandonment issue are as follows:

i. Under the 2006 Regulations, there was a provision under para 4(2) of Schedule 2 to those Regulations for appeals brought under section 82(1)

NIAA 2002 to be treated as abandoned where an appellant was issued with documentation confirming a right to reside in the United Kingdom under EU law. Following the changes brought about by the Immigration Act 2014, as of 6 April 2015, that abandonment provision was revoked and never replaced;

ii. There has never been provision under any of the EEA Regulations for an appeal against an EEA decision brought under those Regulations to be treated as abandoned following a grant of leave to remain or the issuance of specified documentation confirming a right to reside in the United

Kingdom under EU law;

iii. It follows that a grant of leave to remain following an application under the EU Settlement Scheme does not result in an appeal against an EEA

decision brought under the 2016 Regulations being treated as abandoned.

This means that, even if an individual has obtained leave under Appendix EU, they are still able to assert their rights under the EEA Regulation. Practically, this could have an impact on when an individual may be able to make an application for naturalisation as a British citizen, as a grant of permanent residence under EEA Regulation can be backdated, whereas a grant of indefinite leave to remain under Appendix EU cannot be. 

In this case, it meant that the client received a positive decision and had his right permanent residence in the UK acknowledged.  

 

Oksana Demyanchuk

Email: oksana@sterling-law.co.uk

Tel. 020 7822 8535

 

Michael Carter

Email: michael@sterling-law.co.uk

Tel. 020 7822 8535

 

 

Coronavirus, business, and employment law

One big issue is on everyone’s mind in the UK and the globe in the last month. It has affected everyone.

Every responsible person is trying to do their bit to make life easier for the public. We pay tribute to all public service key workers, without whom we could not manage at a time like this.

COVID-19 has affected everyone’s working life, and people are wondering what the implications are for their businesses and jobs.

Important questions that arise in the world of employment law:

Can employers just terminate the jobs of their employees because of the economic impact of COVID-19?

Can employers temporarily ‘lay-off’ employees? In what circumstances. And for how long? With or without pay?

Can employers make employees redundant? What payment are employees entitled to, if any?

What are the appropriate grounds for redundancy? What process has to be followed? What are the consequences of not following the process?

What are the other risks and possible claims that an employee or employer may have?

What is the best practical approach that you can take, whether you are an employer or employee?

Is offering or accepting a settlement agreement a viable option? What are the advantages and disadvantages?

And if you are not an employee, but a self-employed contractor, what rights do you have?

The answers to these questions are complex and depend upon several factors. Some advisors purport to give simplistic one-line answers in a bid to win new clients, but experienced professionals know that that is simply not possible, because each situation is different. Factors which come into play include:

  • the express and implied terms of the contract
  • the length of employment
  • the nature of the work and traditions within that industry.

Even the law itself is changing rapidly as the coronavirus crisis spirals. Specialist lawyers need to keep up with the developing law in this area.

If you want the best possible advice possible for your needs, whether you are an employer or employee, you can receive it from Sterling Law’s Consultant Solicitor and specialist in employment law, with 20 years’ expertise in this field, Kuldeep Clair.

Please look up Kuldeep’s impressive profile at https://sterling-law.co.uk/en/kuldeep-clair/

Kuldeep Clair is making himself available for booking for a remote consultation at this very difficult time, at short notice, both inside and outside office hours. As lawyers, we will do whatever possible to help those hit by this crisis.

For expert advice on any employment issue, Kuldeep can be contacted on 07484 614090 or kuldeep@sterlinglawyers.co.uk

Unmarried partner appeal allowed at First-tier Tribunal (IAC)

Unmarried partner appeal allowed at First-tier Tribunal (IAC)

Our client, a national of China, came to the UK as a student in 2001. After her leave expired she remained in the UK. Shortly afterwards, she entered into a relationship with a British national.

In 2018, having been in a relationship for many years, our client applied for leave to remain on the basis of her family and private life, on the grounds that she was the unmarried partner of a British national.

The application was refused by the Home Office and our client lodged an appeal. The Tribunal failed to list our client’s appeal after some time and, concerned as to what to do next, she approached Sterling Law.

A further appeal against the refusal was then lodged by Oksana Demyanchuk providing reasons for it being out-of-time and an appeal hearing was listed by the Tribunal.

Evidence was then complied to demonstrate that our client had developed a family and private life with her partner, his children and grandchildren in the UK. Furthermore, evidence was put forward that would face very significant obstacles to integration into China for a number of reasons.

It was also put forward that our client’s family life would be disproportionately affected by any removal because she could not return to China with her partner as a couple for many reasons, for example, one reason put forward was the fact that her partner was a business owner in the UK and the disruption caused to his business by him leave the UK would be devastating.

It was submitted on behalf of our client, given all the evidence provided, it would constitute a breach of our client’s Article 8 ECHR rights to remove her to the UK and therefore, the Home Office decision to refuse her application was unlawful.

The Judge of the First-tier Tribunal agreed, finding that:

When considering the issue of proportionality, I note that there is a strong public interest in the maintenance of effective immigration controls, a statement of principle given statutory effect in every question of immigration control arising under the Immigration Acts. However, given the insurmountable obstacles [her partner] would face combined with the fact that the appellant has not been to China in nearly 20 years, has no relatives to offer the couple support should they return, the lack of ties to China and all the other evidence in the round, I find that the respondent’s decision does amount to a disproportionate interference with the appellant’s family life and private life and is, therefore, unlawful under section 6 of the Human Rights Act 1998.

Therefore, the appeal was allowed on human rights grounds and under the Immigration Rules and after many years, our client’s status in the UK is now secure and the couple can continue their life together in the UK.

 

Oksana Demyanchuk

Email: oksana@sterling-law.co.uk

Tel. 020 7822 8535

 

Michael Carter

Email: michael@sterling-law.co.uk

Tel. 020 7822 8535