Cutting immigration may cause labour shortages
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 email@example.com