Category: Company News

DISCRIMINATION IN EMPLOYMENT

A new case – 3 Jan 2020

On what kind of beliefs can an employee claim discrimination?

Most people are aware that it is unlawful to discriminate on grounds of gender, race or nationality, religion or belief, sexual orientation or disability.

An employment tribunal within the last week re-affirmed a fundamental principle of the Equality Act 2010, namely that the concept of ‘belief’ is not confined to just the Abrahamic religions, or any other religions, as some would have us believe!

‘Belief’ includes any philosophical belief, provided it is held genuinely and seriously, and includes, as in this case decided on 3rd January 2020, veganism. The claimant here was a vegan who believed that this was the reason that he had been victimised in the course of his employment. The employee had ethical objections to the way in which his employer behaved.

Of course, vegetarianism is included as well, as is, for instance, atheism and agnosticism and paganism. No belief has any privilege over any other – which I would say is exactly what you would expect in the law in a modern civilised secular society.

Kuldeep Clair

Senior Employment Solicitor

If you need expert advice on an employment issue, contact our consultant employment solicitor:

Kuldeep Clair – 07484 614090 or kuldeep@sterlinglawyers.co.uk

EQUAL PAY DISCRIMINATION IN EMPLOYMENT

Just on Friday, a prominent new case was reported in the news involving equal pay.

It is prominent because it involved a claim by a well-known BBC journalist, Samira Ahmed, against her employer, on the basis that she had been underpaid for several years, for presenting one programme, amongst others. Her equal pay ‘comparator’ or rival BBC male journalist, was Jeremy Vine. Salary figures at the BBC had been made public as a matter of policy, and these showed that Mr Vine had been paid at a rate considerably more per programme, even though they both have been similarly experienced in their fields – over 25 years or so.

Of course, the BBC attempted to offer an alternative explanation for this disparity to the employment tribunal, but it was not accepted by the tribunal on the facts before it. The programmes in question were very similar and required similar skills. If the opposite had been accepted, the case would not have succeeded. Samira Ahmed’s success means that she will receive back pay for perhaps six years amounting to a six-figure sum. Six years is the maximum period for which an employee can claim back pay in an equal pay claim.

Our senior specialist employment solicitor, Kuldeep Clair comments, “I have found that claims for equal pay commonly turn on the ability of an employer to provide an explanation for the difference in pay. This can be difficult, but sometimes an explanation may not even be necessary, because the work simply is not easily ‘comparable’ at all. So there can be potential problems in both bringing and defending claims, unless you have expert professional representation.

Kuldeep dealt with an equal pay claim last year for a claimant which was settled for a substantial five figure sum. He was opposed by a prominent City firm, defending a national hospitality company. “The defence initially put forward by the employer was essentially the same”, says Kuldeep, “namely,  that my client’s work was of a different nature and could not be compared to the dozen male managers who occupied comparable positions to her. But they had a change-of-mind two weeks before the tribunal hearing date, when they realised the strengths of my client’s claim.

Kuldeep goes on to note that this year it is exactly 50 years since the introduction of the Equal Pay Act 1970, which was a turning point in anti-discrimination legislation. “We have now moved forwards a long way since the days when women were expected to either stay at home and do the dishes, or at most possibly expect to take menial work at whatever pittance of a rate was offered to them without any argument.

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

Domestic worker successfully enforced her employment rights against her manipulative employer even after her work visa expired

The general rule is that it’s illegal to work for an employer after the employees working visa has expired. The employee will no longer be able to bring a breach of employment contract claim against his employer due to the defence of ‘illegality’ of contract.

The case of Okedina v Chikale [2019] EWCA Civ 1393 held that there are some circumstances in which an employment contract can still be enforceable despite breaching an immigration rule.

The Facts

The claimant, Ms Chikale, and the respondent, Mrs Okedina, are both Malawian nationals. The claimant was granted a 6-month visa to work as a nanny for the respondent. Little did the claimant know, her visa was granted based on false information given by the respondent. The respondent goes further by letting the claimant stay and work in the UK even after her visa expired. Few months after, the claimant is earning £200 per month. The respondent dismissed the claimant after she requested more money.

Conclusion

The respondent’s defence of illegality was denied by the court. Great emphasis was placed on the fact that the claimant was innocent the whole time, and she was not aware that she has been working illegally.

In many cases, the balance of power in an employment relationship often tip in favour of the employer rather than the employee hence why vicious employers exploit workers by depriving them of their rights often becoming victims of trafficking.

If you think that your employer is depriving you of your employment rights, immediately contact our lawyers in Sterling Law, a Legal 500 firm based in London.

Contact us via:

contact@sterling-law.co.uk

+44 7 305 966 531

Book a consultation here.

Read about our successful cases here.

Sterling Law is now a Legal 500 firm

We are proud to be included in the Legal 500 rating. Simply put, Legal 500 highlights the practice area teams who are providing the most cutting edge and innovative advice.

According to Legal 500:

Sterling Law advises on all types of UK visa and sponsor licence issues for a range of corporate and individual clients. The team is adept at handling PBS applications, which includes advice on sponsored migrants, highly skilled migrants, entrepreneurs and investors.

The team also advises on human rights-related cases at initial application and appeal levels and has experience in a variety of other cases including asylum, protection and family reunion cases. Ruslan Kosarenko is praised for his abilities as a ‘dynamic problem-solver’.

TESTIMONIALS

This team is unusually responsive and extremely well organised.

The team is dedicated, hardworking and brings a positive attitude towards even the most difficult case.

Ruslan Kosarenko takes a ‘can-do’ approach to cases and gets excellent results.

WORK HIGHLIGHTS

Advised on the humanitarian protection of a Filipino national who divorced her former partner from Phillipines and faced persecution and death threats her home country due to the bigamy case filed by her former husband.

Represented a Brazilian client and protected the best interests of her child in separation case.

Advised on successful Investor visa applications after an initial refusals.

https://www.legal500.com/

Contact us to resolve your legal matter:

contact@sterling-law.co.uk

+44 020 7822 8535

+44 7 305 966 531

Or book an appointment with us here.

Read about our successful cases here.

Entrepreneur visa will no longer exist & changes to the investor route

Significant changes are happening to the Entrepreneur and Investor visa. Tier 1 Entrepreneur category will no longer exist from 29 March 2019, while Tier 1 will undergo significant changes.
 
The immigration minister says that the Entrepreneur route “has a long tail of low-quality projects which contribute little or nothing to the wider UK economy”.
 
In place of the entrepreneur comes the innovator:
 
The Innovator category is intended for more experienced business people. As well as an endorsement, applicants will need £50,000 to invest in their business from any legitimate source (reduced from £200,000 for most applicants in the current Tier 1 (Entrepreneur) category). The funding requirement will be waived for those switching from the Start-up category who have made significant achievements against their business plans. The category may lead to a settlement in the UK.
 
Again, the new Appendix W gives the details. The three main endorsement criteria are defined as follows:
 
Innovation: the applicant has a genuine, original business plan that meets new or existing market needs and/or creates a competitive advantage.
Viability: The applicant has the necessary skills, knowledge, experience and market awareness to successfully run the business.
 
Scalability: There is evidence of structured planning and of potential for job creation and growth into national and international markets.
 
Note that these are slightly different from the requirements for start-up visas, although the three headings are the same. The endorser must also be “reasonably satisfied that the applicant will spend the majority of their working time in the UK on developing business ventures”.
 
Unlike with the exceptional talent visa route, there is no set list of organisations that can endorse someone for an innovator visa. Endorsing bodies must be able to satisfy the criteria in Part W6.8, though.
 
Extension applications for Tier 1 (Entrepreneur) migrants will remain open until 5 April 2023, and settlement applications until 5 April 2025.
Contact us should you have any questions.
Ruslan Kosarenko
Senior Partner
info@sterling-law.co.uk

Sterling Law at Jessup competition 2019

Very important event for Sterling Law will take place on the 15-16th of February. One of our Associates Nozima Rakhimjonova will be a judging at the United Kingdom National round of Phillip C. Jessup competition – the world’s largest moot court contest.

The Jessup competition has been held every year since 1960. It is designed for law students, where participants receive a hypothetical legal dispute between countries. Teams shall prepare written and oral pleadings for the applicant and respondent. It is a simulation of a real court hearing before International Court of Justice. Evidently, judicial organ of the United Nations consists of panel of judges, one of whom will be our prominent Associates Nozima.

Ms.Rakhimjonova holds a law degree from the University of Westminster and Master’s degree in International Business, Corporate and Finance Law at the Liverpool John Moores University, both courses were completed with distinction. Nozima deals with various cases in the sphere of commercial litigation, dispute resolution and contracting matter under supervision. Being an Associate for Sterling Law, Nozima successfully represented number of cases related to civil, commercial and immigration matters. She regularly produces publications for prestigious editions.Also, Nozima is a member of the Inner Temple – professional association for barrister and judges in London.

Sterling Law is proud to be working with such prominent legal team!

Adult dependent relative

One of the strongest misconception related to immigration is to assume that only direct family members can apply for Family visa to the United Kingdom. Direct family members usually imply fiancé, spouse, child, parent. However, according to the UK Immigration regulations, a person can apply for Family visa if he is ‘an adult person coming to the UK to be cared for by a relative’. Care can be provided by such relatives as a parent, grandchild, brother, sister, son, daughter or others who are living in the UK.

Certainly, there is a number of requirements applied to the caregiver in the UK, namely:

  • to be living in the UK permanently;

  • to be a British citizen;

  • to be settled in the UK;

  • to have refugee status or humanitarian protection in the UK.

Adults who are eligible for this type of visa will have to prove to they are an essential need for long-term care due to a serious health condition, disability or advanced age. One of the most important requirements for the applicant is that he is not able to receive such treatment in his home country because it is not available or not affordable. However, one limitation for the applicant is applied – he cannot claim public funds for at least 5 years period. It means that the applicant will not be able to pretend to most benefits, tax credits or disability living allowance that are paid by the state. This is the Receiving party (British caregiver) who is taking responsibility for the applicant in all financial matters. To apply for Family visa as an adult dependent relative, the Applicant must be located outside the UK and the age must be 18 or over. If the paperwork was done correctly and the applicant was lucky enough to obtain a family visa as an adult dependent relative, his stay in the UK is considered as unlimited, as long as he joined British family living in the UK without a breach of continuity.

It should be noted that the application process is rather complex, which requires much attention and knowledge. The applicant will have to prepare not only his personal information consisted of at least 16 documents but also nearly the same amount of documents for his Receiving party not including proof of relationship with the British caregiver. The best way to cope with the paperwork is to ask an experienced lawyer for legal assistance. This way, the applicant will be ensured that all paperwork is completed correctly, which increases chances for a positive result in application consideration. Sterling Law highly recommends requesting legal assistance from qualified and licensed lawyers, who have long-term practice in immigration law and will be able to find the right solution in any unpredicted circumstances.

McDonald’s loses the ‘Big Mac’ trademark

The giant of fast-food industry McDonald’s has lost its trademark “Big Mac” in EU case in favor of Irish fast food chain called Supermac’s.

Managing director of the Irish food chain Pat McDonagh received his nickname Supermac back in 1960, while being a teenager he led his team to a victory in Gaelic football match.  It must be a taste of victory he felt back then which is guiding him through life till now.

Pat McDonagh brought the case before the EU regulator two years ago, claiming that McDonald’s had not properly registered its ‘Big Mac’ trademark. Last week the European Union Intellectual Property Office accepted the claim.

McDonald’s trademarked the “Big Mac” in Europe in 1996 as a burger or restaurant name. Even though McDonald’s representatives claimed that Supermac’s was too similar to the ‘Big Mac’ burgers, they failed to show that it had been “put to genuine use in the union for the goods or services for which it is registered”. McDonald’s was disappointed with the EUIPO’s decision and said that they intend to appeal the decision. It was an undesirable loss for a company with annual revenue of nearly $22.8 billion.

Supermac’s managing director proclaimed the “end of the McBully”. He stated that “this is a victory for all small businesses. It prevents bigger companies from hoarding trademarks with no intention of using them.” Also, Mr.McDonagh revealed that the US chain trademarked the term “SnackBox” – the Supermac’s most popular products, which McDonald’s does not use. “If you have a registered trademark, you have to use it or lose it,” said Glen Gibbons, an Irish barrister and expert on intellectual property.

This is not the first case that McDonald’s have to respond to. In 2009, a Malaysian chain won the right to be called McCurry, but it took them 8 years of continuous battle with the global fast-food chain.

Indeed, this case is significant as it shows that the EU ensures a fair hearing, no matter how many billions the Corporation’s annual income and influence in the world are.

Source: The Guardian

Please contact Katsiaryna with any IP related matters:

 Katsiaryna Pazniak

katsiaryna@sterlinglawyers.co.uk

+44 (0) 207 822 8535

 

 

 

Immigration Law

Applying for a Sponsor Licence

Unfortunately, very often applicants do not pay the necessary attention to the accuracy of the submitted documentation, avoiding the required procedures and rules. However, this can be a turning point in a decision-making process – and this is what happened to our Client.

One of the Sterling Law clients – an active company incorporated in London sought to employ a foreign worker (outside the EEA). The reason being that the foreign candidate possessed specific skills and knowledge required for a new project launched by the company. According to the British immigration law, in order to employ a foreign worker, a company has to have a Sponsor Licence. This is an obligatory rule which will enable the company to sponsor Tier 2 (work) visa.

Following this rule, our Client firstly applied for a Sponsor Licence on their own, without legal assistance. The application was rejected due to the reason that not all necessary documentation was provided and not in the correct format.

Our Client launched a start-up with a focus on medicine development, so they were not ready to give up that easily. The new application was made with the assistance of Sterling Law Immigration Lawyer Nataliya Varahash. Nataliya addressed and corrected all the issues raised in the rejection letter.

Nataliya, therefore, managed to achieve a positive decision for the business.

We are glad to announce that now our Client can develop their newly launched projects with the help of skillful foreign workers. We believe, that not only British society but the rest of the world will benefit from it, which would be impossible without the right people on board.

 

UK Immigration & Legal Assistance

For expert advice and assistance in relation to your particular case and to enquire about the legal fees, please contact our lawyers on

Tel. +44(0) 20 7822 8599

Mobile / Viber: +44 (0) 73 0584 8477

e-mail: contact@sterling-law.co.uk

or via our online appointment booking form.

 

Natalia Varahash, Immigration Lawyer (OISC Level 2)

Email: nataliya@sterling-law.co.uk

Tel. +44 (0) 20 7822 8535

Mob. +44 (0) 73 0598 9936

 

LEGAL COSTS – can you recover them from your opponent after winning a legal dispute?

Kuldeep S. Clair, our senior Consultant Solicitor in Dispute Resolution and Employment Law offers his views on this important topic: 

This question is understandably a common initial concern for many clients when they are deciding whether to issue court / tribunal proceedings, and  also when they are defending proceedings against them. 

The rules are complex and not automatic. They depend on the discretion of the Judge, and on things like the nature of the claim and the particular court or tribunal that you are in. Let’s go through a few guidelines but please remember to refer to the exceptions I have outlined later as well: 

  1. Employment tribunals – you will not recover your legal costs if you win, and will not have to pay the other side’s legal costs if you lose either. 
  • Civil money claims of less than £10,000 – as above, apart from relatively nominal fixed amounts totaling probably a few hundred pounds in most cases. (The other side will pay your court fees.)
  • Civil money claims above £10,000 – You will usually be able to recover a large proportion of legal costs which are reasonably incurred. What that means is that there is still a duty on your solicitors to act reasonably in the conduct of a claim so that whatever shortfall payable by you is as small as possible.   
  • Other civil claims, such as landlord/tenant, employment, commercial claims, company disputes – as per 3 above. The court is more likely to award you costs in a matter which is of higher value, since judges do not want to encourage people to clog up the courts with low-value disputes. But the value of the claim is only one factor, and of course, disputes can concern many other issues than just money. 

All of these principles can be overridden by the basic exception which is that a court or tribunal may award costs against a party if he/she has behaved in a manner which is regarded by the Judge as appalling or un-co-operative, and which has increased the legal costs incurred by the other side. It is important to appreciate that this does not mean just by losing the case. Clearly someone always has to lose. It means seriously inappropriate behavior, such as pursuing a utterly hopeless or dishonest case which was absolutely bound to fail. Or using litigation as a device to abuse or harass an opponent. 

If you are advised by your lawyer that all your legal costs will definitely be covered or recovered from the other side, you should remain skeptical. I always advise my clients honestly and fully about the merits of their case and also about the position on costs.  There are no guarantees concerning costs, other than through certain kinds of legal insurance. The problem with that kind of ‘after-the-event’ insurance is that it is only suitable for certain kinds of situations and cases, and it is also quite expensive. I can discuss those options with you in detail. 

Your best bet is to have a solicitor who has the experience and perspective to give you honest, forthright advice about the positive and negative aspects of your case, to prepare your case thoroughly, and fight your case vigorously once you have given clear instructions.  

If you have any queries about a dispute, please feel free to contact me initially without obligation. 

Kuldeep S. Clair 

Consultant Solicitor

Employment, Dispute Resolution and Litigation

+44 (0) 7484 61 4090

kuldeep@sterlinglawyers.co.uk

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