Cut­ting im­mi­gra­tion may cause labour short­ages

Belfast Telegraph - Business Telegraph - - News - @bel­tel_busi­ness

THE UK vote in favour of Brexit was heav­ily in­flu­enced by con­cerns, more of­ten ex­pressed in Eng­land than North­ern Ire­land or Scot­land, that con­tin­u­ing as a mem­ber of the EU would mean that the flow of new ar­rivals from else­where in the EU might be po­ten­tially so large that spe­cific poli­cies to limit the num­ber of im­mi­grants would be needed.

In prepa­ra­tion for the end­ing of free move­ment in the EU, as it has af­fected the UK, the Govern­ment has now re­ceived the ad­vice of the Mi­gra­tion Ad­vi­sory Com­mit­tee (MAC).

The key fea­ture of the rec­om­men­da­tions is that the UK should adopt poli­cies to al­low the num­ber of peo­ple au­tho­rised to come in to live and seek work in the UK to be sub­ject to dif­fer­ent cri­te­ria.

The pro­posed cri­te­ria lean in favour of en­cour­ag­ing im­mi­grants who bring skills and qual­i­fi­ca­tions that are needed in the UK. In ad­di­tion, the cri­te­ria pro­posed in­clude guide­lines which favour peo­ple whose earn­ings po­ten­tial is sig­nif­i­cantly above what might be de­scribed as low pay.

The in­tro­duc­tion of cri­te­ria which are essen­tially bi­ased to­wards bet­ter qual­i­fied peo­ple with bet­ter earn­ings po­ten­tial poses a ma­jor prob­lem for in­dus­tries and oc­cu­pa­tions where UK busi­nesses have re­lied on less-skilled peo­ple, mainly from cen­tral and south­ern Euro­pean coun­tries.

In par­tic­u­lar, North­ern Ire­land has in re­cent years re­lied heav­ily on the ar­rival of mi­grant work­ers, of­ten for more repet­i­tive jobs ei­ther in agri­cul­ture and food pro­cess­ing or a range of oc­cu­pa­tions in some lo­cal man­u­fac­tur­ing firms. Wright­bus, for ex­am­ple, has re­cruited large num­bers of Slo­vakian work­ers. Dun­gan­non also has a long his­tory of us­ing Por­tuguese and eastern Euro­pean em­ploy­ees.

If the UK Govern­ment im­ple­ments the pro­pos­als of the MAC, then, in ad­di­tion to the neg­a­tive im­pact of Brexit on ex­ist­ing mi­grant em­ploy­ees, whose con­tin­u­ing ten­ure has been made to seem less se­cure, the abil­ity to sus­tain em­ploy­ment in a num­ber of firms will be se­verely tested.

The ap­pre­hen­sion caused by the prospect of a se­ri­ous change in the abil­ity to re­tain im­mi­grant em­ploy­ees was heav­ily em­pha­sised by 20 lo­cal busi­ness or­gan­i­sa­tions in a joint sub­mis­sion to the Prime Min­is­ter, sent in a let­ter dated Oc­to­ber 10.

An­tic­i­pa­tion of pos­si­ble labour short­ages in crit­i­cal sec­tors pro­vokes ques­tions about how North­ern Ire­land might make a con­struc­tive re­sponse. Con­trol of mi­gra­tion is not a de­volved sub­ject. The lo­cal As­sem­bly has very lim­ited abil­ity to re­spond di­rectly. Em­ploy­ment reg­u­la­tion is a de­volved topic but, if en­cour­ag­ing an in­ward flow of mi­grant work­ers is needed, whilst lo­cal leg­isla­tive au­thor­ity might be used to ex­clude peo­ple, there is no abil­ity to en­cour­age the ar­rival of new work­ers.

North­ern Ire­land in­ter­ests might be met by seek­ing to frame the UK leg­is­la­tion to al­low the is­sue of work per­mits to be in­flu­enced by re­gional quo­tas which avoided the min­i­mum earn­ings limit.

Af­ter Brexit, a dif­fer­en­tial mi­gra­tion pol­icy for spe­cific re­gions or in­dus­tries is pos­si­ble but, on a Uk-wide base, might not gain po­lit­i­cal sup­port.

North­ern Ire­land in­ter­ests might have bet­ter re­sults if, with pos­si­ble co-op­er­a­tion from other ar­eas, UK pol­icy was changed to avoid the min­i­mum in­come type cri­te­ria.

In the post-brexit sit­u­a­tion, an­other in­flu­ence on labour mar­ket be­hav­iour may emerge as a con­se­quence of the Uk-ire­land com­mon travel area (CTA).

The rules on the CTA have yet to be de­fined, but the ex­pec­ta­tion is that peo­ple liv­ing in Ire­land will have ready ac­cess to em­ploy­ment op­por­tu­ni­ties in the UK, and vice versa.

That ex­pec­ta­tion will need to be clar­i­fied by care­fully defin­ing whether this op­tion de­pends on a per­son’s na­tion­al­ity, Ir­ish or Bri­tish, or whether the op­tion might be open to le­git­i­mate res­i­dents, re­gard­less of na­tion­al­ity. For North­ern Ire­land cit­i­zens, the CTA might open the way to free­dom of move­ment across the EU, be­cause of the rule that north­ern­ers are able to claim Ir­ish na­tion­al­ity. The mi­gra­tion de­bate points to dif­fi­cult ques­tions for lo­cal busi­nesses and in­di­vid­u­als.

The Em­ploy­ment Ap­peals Tri­bunal in the Re­pub­lic of Ire­land re­cently de­cided that an em­ployee, Tim Marks, was un­fairly dis­missed and or­dered that his for­mer em­ployer, ICTS, pay com­pen­sa­tion of €29,000.

Mr Marks had worked for nine years as an air­line se­cu­rity worker for the com­pany.

He was dis­missed for “gross mis­con­duct” in 2014 af­ter he took a dis­carded copy of Time magazine from a bin at Shan­non Air­port, where it had been placed by clean­ers while they were clean­ing a United Air­lines flight. The magazine was worth around $8.

The com­pany op­er­ated a zero-tol­er­ance pol­icy on theft and dis­missed Mr Marks.

Mr Marks did not deny tak­ing the magazine, but he ad­vanced the ar­gu­ment be­fore the tri­bunal that the sanc­tion ap­plied by his for­mer em­ployer was an over­re­ac­tion be­cause he thought the magazine was lit­ter and was about to be thrown out.

Mr Marks’ for­mer em­ployer ar­gued the value of the item was ir­rel­e­vant and placed great weight on the fact that the com­pany’s busi­ness was pro­vid­ing se­cu­rity ser­vices and that the “whole ba­sis” of their op­er­a­tions was to “pro­tect all of the items on the air­craft”.

The em­ployer also re­lied on a pre­vi­ous memo which had been is­sued to all staff, in­clud­ing Mr Marks, re­lat­ing to an in­ci­dent in­volv­ing an­other em­ployee who had been dis­missed for tak­ing a can of Coke from a plane with­out per­mis­sion.

The tri­bunal found the de­ci­sion to dis­miss Mr Marks had been “dis­pro­por­tion­ate” given the “value and sig­nif­i­cance of the prop­erty item in dis­pute”, and the “length of ser­vice and good em­ploy­ment record of Mr Marks”.

It also ques­tioned whether the em­ployer had turned their mind to whether dis­missal was the only pos­si­ble sanc­tion open to them.

This case raises in­ter­est­ing ar­gu­ments about pro­por­tion­al­ity of dis­ci­plinary sanc­tions and what con­sid­er­a­tion should be given to sanc­tions short of dis­missal.

This is an is­sue which has also been con­sid­ered by our Court of Appeal, in 2017 in the case of Caro­line Con­nolly v Western Health and So­cial Care Trust.

In that case the court up­held an appeal by a nurse against a find­ing by an in­dus­trial tri­bunal that her use of an in­haler from a medicine cup­board on a ward was mis­con­duct and that she had not been un­fairly dis­missed.

Caro­line Con­nolly was a nurse in an acute med­i­cal unit. While at work, she felt the on­set of an asthma at­tack and used an in­haler from a locked cup­board in the medicine room in the ward.

She did not in­form the ward sis­ter that she had taken the in­haler un­til she was next on duty and said she in­tended to re­place it from her own pre­scrip­tion.

Ms Con­nolly was dis­missed for gross mis­con­duct.

That de­ci­sion was up­held by an in­dus­trial tri­bunal, set aside by the Court of Appeal and sub­se­quently up­held again by a sec­ond tri­bunal, be­fore the tri­bunal’s de­ci­sion was ul­ti­mately quashed by the Court of Appeal.

In his judg­ment, Lord Jus­tice Deeny high­lighted that the tri­bunal must, in con­sid­er­ing whether the em­ployer’s de­ci­sion fell within the “band of rea­son­able re­spons- es”, make that de­ter­mi­na­tion “in ac­cor­dance with eq­uity and the sub­stan­tial mer­its of the case” and that, in his view, this would in­clude con­sid­er­a­tion as to whether a lesser sanc­tion could be ap­plied. He fur­ther com­mented that dis­missals for a sin­gle first of­fence must re­quire that of­fence to be par­tic­u­larly se­ri­ous, i.e. a wil­ful and de­lib­er­ate act of mis­con­duct. Katie Buchanan is a so­lic­i­tor in Wor­thing­tons Solic­i­tors in Belfast, spe­cial­is­ing in em­ploy­ment law. She reg­u­larly pro­vides on­go­ing ad­vice and as­sis­tance to em­ploy­ers on a range of em­ploy­ment law mat­ters, in­clud­ing dis­ci­plinary pro­cesses. Katie can be con­tacted on 02890434015 or katie@wor­thing­ton­slaw.co.uk

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