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Archive for December 12th, 2013

New Citizenship Rules May Affect US ESTA Visa Waiver Programme

In accordance with US governmental regulations, Malta’s participation in the Visa Waiver Programme will be subject to scrutiny next year. Every country participating in the Visa Waiver Programme is reviewed every two years by the Department of Homeland Security in order to determine the effect their participation in the Visa Waiver Programme has on US immigration, security and law enforcement but new citizenship laws may affect the outcome.

Although the review of Malta’s participation in the Visa Waiver Programme is in accordance with the standard regime, rather than being specifically requested, the introduction of the Individual Investor Programme has left some people wondering what the outcome of the review will be and whether Malta will be able to continue as a participant of the Visa Waiver Programme.

Many have asked whether people granted Maltese citizenship under the Individual Investor Programme could be eligible to take part in the Programme but the US Department of Homeland Security were quick to confirm that applicants can be granted access to the United States providing they meet the requirements, regardless of how the acquired their citizenship.

It seems, therefore, that obtaining Maltese citizenship via the Individual Investor Programme will not be a barrier to taking part in the ESTA Programme.

Although, it’s theoretically possible that a Maltese citizen who gained citizenship via the Individual Investor Programme will be able to enter the United States under the Visa Waiver Programme, the Department of Homeland Security have also pointed out that the ESTA Programme cannot guarantee entry to the country and that every individual will also be subject to the decisions made by the US Customs and Border Protection Officers at all US ports of entry.

Although some have criticised the decision to allow people who have gained citizenship under the Individual Investor Programme to take part in the Visa Waiver Programme, the strict requirements of the Visa Waiver Programme itself mean that many people see no problem with allowing those who gained citizenship under the Individual Investor Programme to use it. In addition to having a biometric passport, applicants of the Visa Waiver Programme must also travel on an approved carrier and be free of any previous violations.

Although the US Department of Homeland Security has clarified some issues surrounding the effect of the Individual Investor Programme on Malta’s participation in the Visa Waiver Programme, it still remains a controversial issue.

US Ambassador to Malta, Gina Abercrombie-Winstanley, has yet to comment on the Maltese government’s decision to remove the controversial confidentiality clause from agreements made under the Individual Investor Programme whilst the UK, French and German embassies have thus far failed to comment on the impact the Individual Investor Programme may have.

Whilst the US Department of Homeland Security has confirmed that Maltese citizens, including those granted citizenship under the Individual Investor Programme, can theoretically be eligible to enter the US under the Visa Waiver Programme, it remains to be seen whether the introduction of the Individual Investor Programme will affect Malta’s participation in the Waiver Programme following the comprehensive review next year.

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Cold weather is on its way – don’t bury your head in the snow
By Simon Quantrill

With winter bad weather especially snow come problems for employees getting to work – however they travel – as well as dealing with child care as nurseries and schools close their doors.

We answer some key questions people managers will be asking themselves as the weather takes a turn for the worst.

Can I discipline an employee who does not come to work because of bad weather?

It depends.  If an employee cannot come in because they have to look after his or her children because the school or nursery is closed taking disciplinary action against them would be risky.  The employee is probably exercising their statutory right to take time off to deal with a ‘family emergency’ and should not be subjected to a ‘detriment’ (or dismissed) because of it.

Sadly, however, there will always be employees who use snow (or other bad weather) as an excuse not to go to work and have a ‘snow day’.  If an employee does not come to work and he could have this raised as a potential disciplinary issue.  It may also be appropriate to discipline an employee if they do not get in touch and report his or her absence.  You mustn’t jump to conclusions though.  You will need to carry out an investigation.

Do I have to pay an employee who does not come to work?

Again, it depends.  If an employee is off work because they need to care for children, and they are exercising the right to time off to deal with a ‘family emergency’ they are not entitled to be paid because this right is to unpaid time off.

In other circumstances the starting point is that an employee is only entitled to be paid if they are at work.  Pay could be withheld if an employee has deliberately not to come to work when they could have but you must check the contract of employment. Many employers, but by no means all, will pay employees who were simply unable to make it to work.  Others may pay those who could not make it but did what they could from home.

If you decide to pay those who could not get in because their car was trapped or the trains weren’t running then you should not treat those who could not come in because of child care problems any differently. They should be paid as well.  Not doing so could give rise to grievances at best and at worst claims of discrimination and less favourable treatment.

Can I ask the employee to use holiday?

This can be done by agreement. After all the employee is likely to prefer taking holiday than not getting paid at all.

Depending on how long any cold snap lasts, you do have the option of requiring your employee to take holiday.  If you have not agreed any other notice provisions, under the Working Time Regulations, you can require an employee to take, for example, one day’s holiday by giving two days’ notice.  If you want an employee to take two days’ holiday you must give them four days’ notice and so on.

What about health and safety?

In most cases you are not responsible for an employee’s safety while travelling to and from the work.  This is not always going to be the case. Take an employee working at a place other than their usual place of work or travelling between branches or offices. In this case you are likely to be liable for the health and safety of the employee and should carry out a risk assessment. This may result in the employee being sent home or at least not travelling.

Whether you are legally liable or not do you really want your employees travelling in treacherous and dangerous conditions?

Any other tips?

Yes!

Be a good communicator! In all cases your employees will welcome clear guidance and details of your expectations when the weather turns nasty.  Stay in touch and keep conditions under review. Do not assume employees know what they should be doing. Some of our clients use Twitter, Facebook and the like to keep employees updated, post bad weather arrangements on their website or set up a telephone message to let staff know what is happening.

Be practical, reasonable and flexible.  Employees will welcome working from home or at a location nearer their home if that is possible, especially if they live some distance away or in a remote location. Being flexible is no doubt the best option.

The Great British weather does have a tendency to throw some curve balls at us.  Put in place a policy that sets out your expectations and deals with some or all of the questions above.  If you are asking them you can be sure your employees are as well.

Simon Quantrill has an enviable legal knowledge and depth of practical experience obtained from over 22 years of being a dedicated employment law and HR solicitor. He enjoys the challenges and job satisfaction of managing http://www.quantrills.com and handling a diverse range of the more difficult and high value employment law cases. In March 2001, when Simon set up Quantrills as a niche firm of employment law solicitors he wanted to provide clients with trusted and reliable specialist advice and representation at a reasonable cost with the best possible client care. Simon is suitably proud that the firm’s reputation today reflects these original goals that remain as important as ever.

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