Legal News

Updated on 28 February 2023 Information on the ballot procedure was made public 13 months after the Youth Mobility Scheme ( YMS) was widened to include citizens of India and Iceland on 1 January 2023 (via the Statement of Changes in Immigration Rules, HC 617). Under the YMS, 3,000 places per year are allocated to Indian nationals. This expansion was made further to the UK/ Indian Migration and Mobility Partnership, signed in May 2021. The requirements are set out on a new guidance webpage......

Mainpay Ltd v HMRC [2023] UKFTT 16 ( TC) The appellant operated as an umbrella company, delivering standard admin and PAYE functions for contingent staff it hired and supplied, through multiple recruitment agencies, to ultimate clients across hospitals and schools. Those workers were engaged by it and supplied, via agencies, on assignments to clients. It maintained that, because workers were engaged under a continuing, overarching contract (that is, a single employment), each location where assignments were performed qualified as a temporary workplace, so travel and subsistence could be deducted from earnings for tax. It further contended that, given the brevity of each posting, individuals were not attending any site 'regularly', and therefore no workplace was permanent. HMRC’s position was that every assignment constituted a 'separate employment', entailing attendance at a permanent workplace, and it raised determinations on that basis. The key...

Common fees For most UK work visa applications, statutory charges account for most of the overall outlay, typically far surpassing the professional fees paid to immigration specialists for guiding applicants through the process. Government fees may include: the visa application fee the Immigration Health Surcharge ( IHS) the Certificate of Sponsorship ( Co S) fee the Immigration Skills Charge ( ISC) optional services to streamline and expedite the visa process By law, the ISC is the only government charge that employers cannot pass on to the visa applicant. Other disbursements can include translation costs, tuberculosis screening, English language testing, or obtaining criminal record certificates. Many of these relate to mandatory stages of the visa process and can mount up quickly, so employers should take a holistic view before deciding who will be responsible for these extra costs. The level of cost assistance provided Some employers may already have...

The repeal of 2017 and 2021 reforms from April 2023 has been announced by the UK government as part of the Growth Plan 2022 presented by the Chancellor of the Exchequer in his ’mini budget’ statement to Parliament. This move follows the new Prime Minister’s pledge to review IR35 and forms part of a broader drive to boost economic growth by trimming regulation and cutting taxes. The plan indicates the change will reduce Treasury tax receipts by £1–2bn per year. At first glance, many hirers and suppliers of contract workers are likely to welcome the shift, seeing a chance to revert to more tax‑efficient engagement through personal service company ( PSC) arrangements. Under the current rules, however, clients and suppliers can be on the hook if a PSC worker is, in reality, not truly self‑employed—an assessment that is notoriously...

Trentside Manor Care Home v Raphael [2022] EAT 37 What are the practical implications of this judgment? Privilege—procedure This ruling confirms that, where there is a live issue about whether documents attract privilege and must be disclosed, employment tribunals should refrain from making orders compelling disclosure to the opposing side’s representatives until privilege has been determined, and parties are not obliged to comply with any such orders in the meantime. This is because privilege, when it applies, protects the holder from having to reveal the contents of those documents to anyone at all. The EAT also noted that, in a privilege dispute, the proper procedural first step is for the party asserting privilege to provide a sworn statement setting out the basis of the claim and, without compromising the privilege, supplying as much precise information as can be given about the nature of the...

Chadwick v R H Ovenden Ltd and another [2022] EWHC 1701 ( QB) What are the practical implications of this case? This ruling grappled with a host of thorny and complex questions arising from workplace accident claims. Owing to the breadth of the analysis, it stands as valuable reading for any practitioner dealing with personal injury litigation. Both the claimant and the second defendant maintained that they were working as employees. Consequently, the decision sets out a clear synthesis of the key, frequently applied criteria for distinguishing employment from self-employment. Because the first defendant disputed the existence of a duty of care, the judge examined in depth the circumstances in which a party who is not the employer may nonetheless incur liability by exercising a measure of control over the place of work. The court assessed the issues bearing on whether negligence had resulted in a...

It is common for internationally based families planning a move to the UK to wish to accompany that transition with their existing nannies. There are sound reasons for this choice. Many such carers have supported the household for years and are regarded as loyal, dependable members of the team, something especially valuable for prominent families. Continuity of care can also be crucial for young children navigating a new country, giving them a familiar person to converse with, particularly where English is not their first language. As a result, advisers frequently face queries about whether any alternative immigration pathways exist to enable household staff, notably nannies, to live in the UK on a long-term footing. Up until changes to the UK Immigration Rules in December 2020, the response to that question was, in most cases, no. That position has typically left families with limited...

Exchequer Solutions Ltd v HMRC [2022] UKFTT ( TC) 181 Exchange Solutions Ltd ( ESL) operated as an umbrella company, employing individual workers under an overarching—or ‘umbrella’—employment contract and making their services available to agencies, which then placed them with construction industry contractors. The core question was whether ESL’s workers were engaged continuously under a single, overarching employment contract spanning all assignments, or instead whether each assignment was governed by its own agreement. At its heart, the dispute turned on the contractual structure for the workers’ engagements. That distinction was critical. With an overarching contract, every location would count as a temporary workplace and travel costs could be reimbursed free of tax. By contrast, if each job sat under a separate contract, each site would be a permanent workplace and PAYE and National Insurance contributions......

Abellio East Midlands Ltd v Thomas [2022] EAT 20, ( EA-2020-000935- OO) What are the practical implications of this judgment? The decision underscores that employment tribunals do not have jurisdiction over every type of pay-loss dispute. Practitioners should carefully assess whether a pay claim satisfies the relevant statutory criteria so it can proceed in the tribunal as an unlawful deduction from wages under Part II of the Employment Rights Act 1996 ( ERA 1996). Only where those criteria are met can the matter be advanced in the employment tribunal; otherwise it must be issued in the County Court or High Court as a breach of contract action or on a quantum meruit basis. It should also be noted that if a claim is brought in a court rather than a tribunal the procedural rules are different—for example in relation to pleadings,...

Robinson v Al- Qasimi ([2021] EWCA Civ 862) What are the practical implications of this judgment? This ruling sets out how far the Supreme Court’s stance on illegality in the insider dealing case of Patel has influenced employment-related illegality jurisprudence. In Patel, the Supreme Court held, amongst other things, that: the fundamental justification for the illegality doctrine is that upholding a claim would conflict with the public interest if it would damage the integrity of the legal system (or, potentially, certain elements of public morality) when determining whether the public interest would be harmed in that way, one must apply a ‘trio of necessary considerations’: whether denying the claim would further the underlying aim of the breached prohibition (for example, laws proscribing insider dealing) any other relevant public policy that the...

The facts Uber BV, a Netherlands-based entity, owns the technology that powers the Uber app. Uber London Ltd, its UK subsidiary, holds a licence to operate private hire vehicles in London. The claimants, Yaseen Aslam and James Farrar, were licensed London private hire drivers and sourced trips through the Uber app. At the tribunal hearing, it was estimated that about 40,000 Uber drivers were active across the UK, with roughly 30,000 working in the London area. Drivers have no written contract with Uber London Ltd; instead, they enter a written agreement with Uber BV to access the app, and passengers likewise accept Uber’s terms in order to use it. In long-running proceedings, the employment tribunal, the EAT, the Court of Appeal and the Supreme Court grappled with two identical issues. First, were drivers obtaining bookings via the app “workers” of Uber for the...

The objections centre on well-known long-standing concerns over data retention, access for law enforcement, and immigration policy; moreover, lawmakers went further, drawing attention to serious earlier issues with the UK’s use of the Schengen Information System ( SIS) database and to both potentially conflicting commitments under other international agreements. Under EU data protection rules, sending personal data to countries beyond the EEA is strictly lawful only where protection is judged ‘adequate’, where extra safeguards are adopted, or where one of a small set of derogations applies. At present, ongoing data flows between the EU and the UK run under an interim framework embedded in the broader EU– UK Trade and Cooperation Agreement of December 2020, which will lapse by June 2021 at the latest. The Commission must determine whether the UK, which officially departed the 27‑nation EU last year, affords...

For data protection specialists, the EU– UK TCA brings encouraging developments. Unrestricted data movement between the EEA and the UK will carry on beyond the close of 2020 ( Article FINPROV.10A(2) also confirms flows from Iceland, Lichtenstein and Norway to the UK). That outcome is warmly welcomed. Recent studies indicated that implementing substitute transfer tools might have set UK firms back £1.6bn. Such a sum reflects funds businesses could otherwise have directed to areas like new kit, staff or procedures, yet would instead be siphoned off to compliance spend or higher prices for goods and services due to interruptions to EU– UK data transfers. Data may likewise keep moving freely for law enforcement transfers. That is essential. Maintaining the sharing of data to prevent and detect crime is vital to protecting people on both sides of the Channel. Without this...

Nwabueze v University of Law Ltd and others [2020] EWCA Civ 1526 What are the practical implications of this case? As observed at paragraph [4], apart from equal pay, the Eq A 2010 divides jurisdiction into tightly sealed compartments. Claims about discrimination arising in the employment sphere, including matters involving qualifications bodies, fall under Eq A 2010, Part 5 and are within the exclusive jurisdiction of the Employment Tribunal ( ET). By contrast, discrimination connected with education is governed by Eq A 2010, Part 6 and sits within the exclusive jurisdiction of the County Court. The ruling confirms that students, or those applying for admission, who allege discrimination by universities under the Eq A 2010 must commence proceedings in the County Court, not the ET. Where an organisation counts as a university for the purposes of section 91 of the Eq A 2010, that...

Applications submitted before this date will be determined under the Rules in effect on 30 November 2020. See: LNB News 22/10/2020 80. The Migration Advisory Committee ( MAC) has been asked to examine the Intra- Company Transfer route and to report on issues including salary and skill thresholds, whether separate arrangements should exist for high earners, and points of divergence from the Skilled Worker route. The MAC aims to provide its findings by the end of October 2021. Any adjustments to the route are expected to follow in 2022. See: LNB News 07/10/2020 76. Appendix Intra- Company Routes The Tier 2 ( Intra- Company Transfer) ( ICT) route will be retitled as the Intra- Company routes, as flagged in the Home Office’s July 2020 further details paper. The two strands are the core Intra- Company Transfer and the Intra- Company Graduate...

Miller and others v Ministry of Justice [2019] UKSC 60, [2019] All ER ( D) 83 ( Dec) What are the practical implications of this case? The Supreme Court’s ruling is a clear success for Mr Miller and the other Appellants, and appears to have finally drawn to a close the O’ Brien litigation, which began more than a decade ago. The Appellants’ PTWR claims were held to be in time, and they—alongside many judges in comparable circumstances—will now have their pensions assessed by reference to all service both before and after 7 April 2000, the deadline for implementing the Part-time Workers’ Directive into UK law, in line with the Court of Justice’s decision in O’ Brien v Ministry of Justice (note that a separate Supreme Court consent order dated 28 October 2019 dealt with the pre/post 7 April 2000 service point—see further below). The...

For much of the UK’s membership of the EU, the interaction between European law and the domestic system has sparked debate. To many observers, it operates as a limitation—practically, if not as a strict matter of doctrine—on the constitutional tenet that Parliament, acting with the Crown, is sovereign. In that context, the European Union ( Withdrawal Agreement) Bill ( WAB) sets out a number of measures with significant consequences for how sovereignty is to be understood in the United Kingdom. Current status of EU law At present, section 2(1) of the European Communities Act 1972 ( ECA 1972) stipulates that all rights, powers, liabilities, obligations and restrictions created by or under the Treaties, together with all remedies and procedures they provide, are to take legal effect in the United Kingdom without further legislation. Those rights must be recognised, available and enforced in UK law, and...

Downe v Universities Superannaution Scheme ( USS) and another [2019] EWHC 2403 ( Ch), [2019] All ER ( D) 75 ( Sep) What was the background? Ms Downe is a member of the Universities Superannuation Scheme ( USS). Under the USS rules, a member may receive an early retirement pension on a non-reduced basis if their employment ends for redundancy. For USS purposes, redundancy is made out where a member’s employment is terminated and this is due, wholly or mainly, to the employer’s requirements for employees to carry out work of a particular kind ceasing or reducing, or being expected to cease or reduce. Ms Downe worked for the Society of College, National and University Libraries ( SCONUL) in various roles, notably in accounts and in events management, up to 16 November 2012. She had a strained working relationship with her manager, Mrs R, who joined...

What does Article 79 of the GDPR provide and is that consistent with Brussels I (recast)? Article 79(2) GDPR states that actions against a controller or a processor must be issued before the courts in the Member State where the controller or processor maintains an establishment. In the alternative, the claim may instead be brought before the courts of the Member State where the data subject has his or her habitual residence, save where the controller or processor is a public authority of a Member State acting in the exercise of its public powers. This seems to lay down a complete, self-contained scheme identifying which courts have jurisdiction over GDPR claims, and Recital (147) goes even further. Recital (147) provides—‘ Where this Regulation lays down specific rules on jurisdiction, particularly concerning proceedings that seek a judicial remedy, including...

What is the current legislation/regulation relating to drug misuse in the workplace and does this go far enough? Is there any guidance available for employers? Employers are legally required, under the Health and Safety at Work etc Act 1974, to safeguard the health, safety and welfare of their workforce so far as is reasonably practicable. The Management of Health and Safety at Work Regulations 1999 ( SI 1999/3242) add a duty to identify and evaluate risks to employees’ health and safety. Where an employer knowingly permits someone to work while impaired by drugs or alcohol, and that behaviour endangers them or others, the employer may face prosecution. Workers, for their part, must also exercise reasonable care for their own safety and for anyone who could be affected by what they do—or fail to do—at work. The Misuse of Drugs Act 1971 is the key UK...