EMPLOYMENT LAW MARCH 2019
Employment law SOS
This month, our legal experts look at rules around EU
workers following Brexit, inappropriate use of work mobile
phones and making provisions for Muslim members of staff
BY JIM WRIGHT, PARTNER, AND SARAH WEST, TRAINEE SOLICITOR, SHULMANS LLP www.shulmans.co.uk
At our factory, we employ
a number of overseas
workers, many of whom are
from the EU. We’re concerned
that a no-deal Brexit is going
to either see them returned
to their home countries, or
us punished for continuing to
employ them. In the longerterm,
we’re concerned about
this pipeline being shut off.
What’s the latest with regards
EU workers following Brexit?
Whilst it’s true that ‘nothing
is agreed until everything is
agreed’, the government has
made some assurances in the
event of a no-deal scenario.
It is extremely unlikely
that any EU workers will
be “returned to their home
countries”. The Department
for Exiting the European Union
said in December 2018 that “EU
citizens resident in the UK by 29
March 2019 will be able to stay
and we will take the necessary
steps to protect their rights”.
Home Secretary Sajid Javid has
said the government’s “default”
position will be to grant, not
refuse, settled status.
The EU Settlement Scheme
is already being implemented in
phases and it will be open to all
eligible EU citizens by 29 March
2019 until 31 December 2020.
Eligible EU nationals with five
years’ continuous residence will
be granted ‘settled’ status, and
some granted ‘pre-settled’ status
until they reach the threshold.
Nevertheless, it is without
doubt an anxious time for
workers. As an employer, you can
provide reassurance and support
and, importantly, listen to their
concerns. Consider sourcing
advice for them. While the
Scheme is being implemented in
phases, individual circumstances
will affect when is best to apply.
Ongoing engagement with
employees is crucial to avoid
unnecessary unrest.
There is no punishment
for continuing to employ EU
nationals, but do remember
there are civil sanctions for
employing illegal workers and
criminal sanctions for employers
doing it knowingly.
It’s difficult to make
any meaningful post-Brexit
HR strategies, but we can
ready ourselves for the new
immigration scheme in 2021. It is
shaping up to be a more selective
and skills-based system that
mirrors the existing system for
non-EU migrants.
isn’t a defining factor, but it is
relevant. Also consider the level
of integrity you’re asking of your
employees in that particular
role. For what purpose have
you provided mobiles? Does it
include contact with clients?
Check whether your contracts
and workplace policies permit
personal use of work equipment.
They may even provide some
examples of inappropriate use.
Employers have wide discretion
to determine standards in
the workplace and what is
considered as misconduct. This
example highlights the benefit
of having up to date policies.
If policies are silent on
personal use, it doesn’t prevent
you from taking action. Look
at all the circumstances.
Has anyone previously
been disciplined for similar
conduct? Has anyone not been
disciplined for similar conduct?
Has the implied duty of trust
and confidence been broken?
Remember that you may be
setting a precedent if you
discipline this employee, or
if you don’t.
If you do have a policy,
can you demonstrate the
employee was aware of it?
This is important because,
if it is materially relevant to
disciplinary proceedings, it may
be unfair to discipline them if
they haven’t seen it.
In light of the GDPR
(General Data Protection
Regulations), it’s worth pausing
for thought on the monitoring
of employees’ mobiles. Does
the employee have a reasonable
expectation of privacy? If the
answer is yes, they may be
able to argue a valid breach of
human rights. Notwithstanding
the embarrassment factor,
the employee could respond
We provide our field
maintenance teams
with mobile phones, as they
are on the road a lot and need
to be contactable while on
shift. Recently, we upgraded
to newer models, and asked
everyone to hand back their
old phones. While clearing the
phones, we discovered that
one employee had been using
his phone to send graphic
messages to his wife. Do we
have grounds to discipline him
for inappropriate use of work
equipment?
First, consider the content of
the messages. What is “graphic”?
By whose standards? This
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