Daily Archives: June 22, 2023

The Government has proposed significant reform of key aspects of UK employment law.

In the “Smarter regulation to grow the economy” policy paper (the “Paper”) published last week, the Government identified an opportunity to improve post-Brexit employment regulation whilst maintaining UK labour standards, which it states are some of the highest in the world.

The “Retained EU employment law reforms” consultation paper has now been published. It contains the reform proposals in relation to the Working Time Regulations 1998 (“WTR”) and the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE Regulations”) summarised below.

The Government has identified these areas as being too onerous on business to be used effectively, or too complex for workers to know, understand and use.

Working time reform proposals

• A proposal to merge the current “basic” statutory annual leave entitlement of 4 weeks (derived from EU law) with the “additional” UK entitlement of 1.6 weeks, to create one annual leave entitlement of 5.6 weeks. This means there would be only one set of rules under the WTR including in relation to the calculation of holiday pay, carry-over of holiday, and calculating holiday during the first year of employment. The aim is to remove the administrative burden and complications for employers of distinguishing between two annual leave entitlements.
• The introduction of rolled-up holiday pay (which is currently illegal following EU caselaw). This reflects the change in the labour market, with the number of workers with irregular hours increasing to more than 4.5 million. This would enable employers to enhance the basic pay of workers to provide an additional amount equivalent to 12.07% of a worker’s pay in each payslip, rather than at the time holiday is taken. The percentage would be adjusted to cover any contractual leave beyond the statutory entitlement.
• A proposal to reform the record-keeping requirements in the WTR so that businesses do not have to keep a record of daily working hours of their workers.

TUPE reform proposals

A proposal to change the current consultation requirements to simplify the transfer process under the TUPE Regulations.

• Small businesses with fewer than 50 employees would be permitted to consult directly with employees if there are no existing employee representatives in place.
• Note that this is an extension of the current micro-business consultation exception, which currently applies to employers with fewer than ten employees.
• Further, businesses of any size would be permitted to consult directly with employees (if there are no existing employee representatives) if fewer than ten employees will have their employment transferred under the TUPE Regulations.
• If employee representatives are already in place in either case, then the employer would still be required to consult with them.

Non-compete restrictions

While the Consultation covers working time and TUPE reform, the Government’s Paper also detailed the intention, “when parliamentary time allows”, to limit non-compete clauses to three months after termination of employment.

The Government accepts that these types of restriction can play an important role in protecting businesses who invest in their staff, but considers that unnecessarily burdensome clauses have become a default part of too many employment contracts. It estimates that this change will affect up to 5 million UK workers.

Employers will still be able to restrict an employee’s activities during periods of paid garden leave or their notice periods, but any restriction beyond the termination of their employment would be limited to three months. The proposed limit would not apply to non-solicitation clauses (which will be subject to the existing caselaw requirements in relation to enforceability), nor will confidentiality clauses be affected.

Conclusion

The proposals reflect the Government’s intention to take advantage of post-Brexit regulatory freedoms and remove “unnecessary bureaucracy”.

This package of proposed reforms follows hot on the heels of the decision to change approach in relation to the revocation of EU-derived subordinate law (i.e. Regulations). Instead of “sunsetting” all such UK Regulations on 31 December this year, the Retained EU Law (Revocation and Reform) Bill has been amended so that only a specific list of affected Regulations will be revoked, with the rest remaining valid and binding.

That means it will be business as usual for UK employers until the outcome of the employment reform consultation becomes clear. The consultation closes to responses on 7 July 2023.

*Source: Lexology

The UK government has changed its policy on international students, restricting them from bringing their families with them during their studies. This change to how student visas are allocated, the government argues, will help reduce net migration.

Scottish MP Carol Monaghan has been a vocal critic of the new immigration policy. She emphasises the substantial economic contributions made by international students, pointing to the impressive £40 billion they added to the UK economy in 2022.

Also in 2022, Russell Group universities reportedly warned that such restrictions could harm Britain’s economy, not to mention its reputation. In June 2023, Jo Johnson, former minister for universities and science, echoed this warning, saying:

As a strong advocate for international students in our system, I am conscious that there is much to lose from further crackdowns.

Public opinion is largely in favour of legal immigration. The UK public generally perceives legal migrants as having the potential to contribute positively to the UK. Our analysis shows, however, that the government’s new rules have the potential to significantly – and adversely – impact these very people’s mental health, particularly through what one of the authors (Olumba Ezenwa) has termed “cognitive immobility”.

Cognitive immobility

Cognitive immobility exists when your mind is stuck in the past, constantly replaying old memories or experiences about people, events, or cultures you encountered in places you lived or visited in the past, causing you to stress, which could be even worse. This can lead to emotional exhaustion and other mental health issues including anxiety, depression, social isolation and, in severe cases, post-traumatic stress disorder.

Informal stories or reports indicate that many international students may already be facing difficulties, even before the new policy has been put into place. The chemist, Chisom Chuba, who relocated from Nigeria to Ireland in 2020, has equated ending video calls with her family to the sensation of a plaster being torn from her skin. In an interview, published in November 2022, with the journalist Olayide Oluwafunmilayo Soaga, she said:

I don’t know if it is the sound of the call dropping or just watching the screen go blank with their image gone. But it is all I can get for now.

This description of feeling like a plaster is being torn from your skin suggests the onset of cognitive immobility. Without proper support, you might see your mental health deteriorate. This can lead to the second stage, which can be severe and even pose a risk of self-harm.

How the new rules might affect students

The new immigration rules are set to apply uniformly to almost all international students. By separating families, these could exacerbate feelings of isolation, affect academic performance and trigger cognitive immobility.

Separation affects children as much as adults. Individually, it causes stress, anxiety, depression, mood changes and frustration due to negative family dynamics. It also represents the loss of your primary support system, which can make adjusting to a new environment particularly challenging.

International postgraduate students in particular are already found to experience heightened levels of depression, anxiety, stress and even suicidal thoughts, compared to the general UK population. As psychologist Philip Dimka told the Guardian:

There is a tendency for you to adjust more to a new environment when you are with your family, but when you are separated, you are likely to develop stress and anxiety.

Cognitive immobility unfolds in three stages: awareness/separation, retrieval and stabilisation. The awareness/separation stage is characterised by individuals feeling disoriented and confused as they grapple with persistent thoughts or longings for (familial) experiences or the places left behind.

In the retrieval stage, individuals strive to revisit or relive the places or experiences they feel lost. This process can be physically returning to those places or mentally recreating those memories, leading to discomfort, especially when these memories, such as the absence of loved ones, surface unconsciously and cause stress.

The final stage, stabilisation, shifts focus from trying to reclaim the past to retaining values and setting goals to cope with the sense of loss; this helps alleviate the feeling of entrapment. This is often the desired stage for those experiencing cognitive immobility.

There are four essential things you need in order to mitigate the negative impacts of cognitive immobility: a profession; a community or family; time for reflection; and good health. It is through developing coping strategies that tie in with these four elements that enable you to settle somewhere new and make a new home.

In depriving international students of the primary support system provided by their families, therefore, the new immigration guidelines may exacerbate cognitive immobility. The impact will be worse for students from some developing countries, where talking about mental health is disregarded or stigmatised. This situation will worsen if students do not understand the nature and seriousness of the mental health problems they face. This could put themselves and others at risk.

This is an urgent call to action. Without the new policies being revisited, and crucially, without more effective support services within universities, international students will struggle to transition smoothly, excel academically and thrive personally.

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*Source: The conversation