Immigration issues in the workplace – beyond the right to work checks
An employer may consider that the only Immigration issues that apply in the workplace are those connected with recruitment and ensuring that all staff have the right to work in the UK. This is, of course, a big issue for all employers, with fines running to thousands of pounds for those who have not followed the right to work checks correctly. However, the best employment lawyers will recognise that Immigration issues in the workplace can be in play throughout the Employment relationship. Situations where Immigration issues may arise include redundancy, discrimination, and when an employee resigns.
Beyond the right to work checks
UK employment lawyers and most employers are now well aware of the right to work checks that must be carried out by anyone employing staff. The right to work checks apply to all staff, and employers who can demonstrate that they completed the checks correctly can avoid the penalties that apply if it is later found that they employed someone who did not have the right to work in the UK. The best employment solicitors in London will advise their employer clients that Immigration issues can extend beyond the right to work checks, and employers need to be vigilant at all stages of the Employment relationship.
In today’s uncertain economic climate, many employers will consult with a top employment law firm for advice on redundancy. redundancy is hard for all employees but may have particularly harsh consequences for an employee whose presence in the UK is based on a Certificate of Sponsorship issued under Tier 2 of the UK’s points-based system. Employers of Tier 2 workers involved in a redundancy situation also have obligations to the Home Office that they must fulfil or potentially risk losing their Sponsorship Licence which could compromise the ability to recruit further skilled workers from outside the EEA.
An employer does not have to take someone’s Immigration status into account when making a redundancy decision – the fact that an individual will potentially have to leave the UK if they are made redundant is not something that must legally be considered in a redundancy situation. However, it is worth an employer being aware of these issues as the employee concerned may well raise them, with support (or not) of Employment claim solicitors.
Although Immigration status is not a matter the employer has to take into consideration, in a redundancy scenario involving Tier 2 workers, the employer must notify the Home Office that the individual’s contract has ended, within 10 days of this happening. The employer must also notify the Home Office of the redundant employee’s last known address.
As far as the former employee is concerned, he or she can make a fresh application for a new visa, and may already have this in place with a new employer. The Home Office can either take no action once it has been advised of the redundancy or issue a notice to shorten the original visa. If this happens, the visa will usually be shortened to 60 days, although the case worker has a discretion to allow the individual longer before he or she must leave the UK, for example if there are children who will be affected by the decision, or medical reasons. A Tier 2 worker who has a good reason to seek to remain for longer in the UK even though the work they were recruited to do has come to an end, can submit evidence to the Home Office in support of this.
Discrimination and Immigration issues
A key responsibility of any employer is to take steps to protect employees from discrimination on grounds of any of the ‘protected characteristics’ set out in the Equality Act 2010. An employer whose workforce includes workers from overseas will need to be extra-vigilant to ensure that sufficient steps are taken to protect against discrimination on grounds of race and, potentially, religion. This is the case whether the employees’ Employment in the UK is dependant on their Certificate of Sponsorship, whether they are in the UK as the partner of a UK or EU citizen, or they are themselves EU citizens exercising freedom of movement. Since Brexit, in particular, the UK has seen a worrying increase in racism directed at EU citizens, so employers will wish to guard against this. If necessary, taking advice from a UK Employment lawyer to ensure all policies to prevent discrimination are robust and practices are well embedded.
We have already mentioned the Immigration issues that arise in connection with a redundancy exercise – what about when an employee on a Tier 2 visa decides to take up a new role with a different employer? The key issue here is that a Tier 2 worker is unlikely to have resigned until they have a new Tier 2 visa and sponsorship in place with the new employer. However, the terms of the Tier 2 sponsorship mean that once a new visa is in place, the employee should not work under the old visa for the old employer. This impacts on any notice period that the contract of Employment might insist upon. There is then a conflict between the contract of Employment and the requirements of the Immigration rules. In any situation where this arises, the employer would be advised to take specialist employment law advice from a solicitor with knowledge and practical experience of Immigration law.
OTS Solicitors have extensive experience as Immigration lawyers and employment lawyers, and are able to support employers with all aspects of Immigration law as it impacts on the Employment relationship. For general advice or advice on a specific case, please do not hesitate to contact us. Call 0203 959 9123 to talk to one of our Employment and Immigration lawyers today!