Post
by 1954abbas » Sat May 05, 2018 4:15 pm
Oh yes Zimba, a very strong grounds/arguments were submitted with regards to SMP. I can put here for future guidance if needed.
Ground 3: Statutory Maternity Leave
6. It is submitted that the original decision maker applied incorrect legislation framework; and Immigration Rules, in deciding that the statutory maternity pay of .........,,, cannot be included in the calculation of hours, as the employee was not working for you during this period.
7. It is submitted that the original caseworker decision that .........cannot be regarded as an employee because she was on maternity leave is clearly an ignorance of the Employment Rights Act 1996.
8. First, the sections 71(1), (2) and (4) of the Employment Rights Act 1996, gives statutory protection to the employee on maternal leave. This includes having all the privileges and entitlements as being employee during the statutory maternity leave period. Sections 71(1), (2), (4) of the Act state that:
“Employment Rights Act 1996
71
(1)An employee may, provided that she satisfies any conditions which may be prescribed, be absent from work at any time during an ordinary maternity leave period.
(2)An ordinary maternity leave period is a period calculated in accordance with regulations made by the
6
Secretary of State. (3)........
(3A)............
(4)Subject to section 74, an employee who exercises her right under subsection (1)—
(a)is entitled , for such purposes and to such extent as may be prescribed, to the benefit of the terms and conditions of employment which would have applied if she had not been absent,
(b)is bound , for such purposes and to such extent as may be prescribed by any obligations arising under those terms and conditions (except in so far as they are inconsistent with subsection (1)), and
(c)is entitled to return from leave to a job of a prescribed kind.
(5)In subsection (4)(a) “terms and conditions of employment”—
(a)includes matters connected with an employee’s employment whether or not they arise under her contract of employment, but
(b)does not include terms and conditions about remuneration.”
9. It is clear from the above statutory provisions of the Employment Rights Act 1996, under section 71(4) that an employee who has under maternity leave have same terms and conditions of employment which would have applied if she has not been absent. Therefore, for all purposes, this includes under the Employment Rights Act 1996, and Statutory instruments rights, such as Immigration Rules,Ms ........ is treated as an employee, and working for the Applicant.
10. Since the contract of employment is not broken, continuous employment will continue to accrue during ordinary maternity leave (the first 26 weeks’ entitlement) and additional maternity leave (the second 26 weeks’ entitlement) for the purposes of statutory employment rights.
11. Second, for all extent and purposes, the protection under Employment Rights Act 1996, overrides any immigration rules, as employee protection rights under Employment Rights Act 1996 are statutory rights enforced through the Act of the Parliament, whilst, immigration rules are enforced through secondary instruments.
12. Third, in any event, there are no such provisions in the Immigration Rules, nor there is such a policy of the SSHD that states that employee that is on maternity leave does not count as employee. It is submitted that the original caseworker has no bases both in terms of immigration rules and under any policy to conclude that the ......... does not count as an employee.
13. Therefore, the SSHD’s caseworker’s decision that Ms ............. is not an employee and was not working for the Applicant is based on incorrect applications of the statutory provisions, and therefore, an unlawful reason for refusal.
14. In the light of the above extensive submissions the SSHD’s decision to refuse the Applicant’s Indefinite leave to remain, is clearly flawed and therefore, unlawful. In the circumstances, the decision must be quashed in this administrative review challenge and the Applicant must be granted indefinite leave to remain.
