The government’s response to consultation on flexible working proposes a “day one” right to request and various other changes to the current rules, but stops short of more radical reform.

Text:

What is the current right to request flexible working?

Since 2014, employees with at least 26 weeks’ continuous service have been able to make a written request for flexible working. The request can be to change location, hours and times of work, and can be made for any reason. Employers are not required to agree to the request, but can only refuse it for one of eight specified business reasons. Our previous article on the government consultation sets out the current regime in more detail.

What will change and what will remain the same?

The government’s consultation on flexible working closed on 1 December 2022 and received over 1,600 responses from a wide range of stakeholders, including both organisations and individuals. Respondents to the consultation commented that flexible working is important for many organisations, improves access to employment for protected groups, and often benefits both the employer and employee.

The consultation has been running alongside a Private Member’s Bill (the Employment Relations (Flexible Working) Bill (the Bill)), which passed its Second Reading on 28 October 2022 and is being supported by the government. Our recent article on this and other Private Member’s Bills is here.

The government’s response and conclusions sets out a number of changes to the current rules. These changes are the same as the government proposed in the original consultation paper. As noted in our previous article, these are relatively modest rather than radical reforms. Most of the government’s conclusions also reflect the changes already set out in the Bill, which the government has confirmed it will continue to support.

The headline change is making the right to request flexible working a day one right. The Bill does not cover this issue. The consultation response estimates that this would make the right available to an additional 2.2 million people and would make it the “norm” rather than a right to be earned. This proposal was well received by both individuals and organisations, with 91% of respondents in favour, and it was noted that many employers are already agreeing to consider flexible working requests from day one anyway. Some respondents raised concerns about the level of disruption that this could cause to the workplace, and some commented that there could be a negative impact on the working relationship where an employee seeks to alter their working arrangements so soon after agreeing their contract.

Overall, the government concluded that this would be a proportionate step to take. In doing so, it emphasises that this remains a right to request, not a right to have.

The changes which overlap with the Bill are:

• Requiring employers to consult with their employees, as a means of exploring the available options, before rejecting their flexible request. Consideration was given to whether employers should show (through a written notice to the employee) that they have considered alternative arrangements when rejecting a flexible working request. Concerns were raised regarding the administrative burden that this could place on employers. The government has concluded (in line with the Bill) that employers should be required to consult with their employee before rejecting their flexible working request, but this now stops short of requiring any consideration of alternatives to be set out in writing.

• Allowing employees to make two flexible working requests in any 12-month period and requiring employers to respond to requests within two months. The government notes concerns raised by employers over whether a shorter timeframe is insufficient for proper consideration of any business implications, but they decided on the evidence in the responses that the change should go ahead. The main reason in favour given by respondents was that circumstances can change within 12 months and will often necessitate a quicker response to avoid negative outcomes for both employees and employers. Again, this reflects two of the key changes in the Bill.

• Removing the requirement for employees to set out how the effects of their flexible working request might be dealt with by the employer. Some respondent organisations noted that the existing requirement could lead to unfair treatment and possibly indirect discrimination. The government agrees, and also notes that this could be difficult for new employees if it is a day one right. The government therefore intends to remove this requirement – again, as already set out in the Bill

Notably, the government has decided that no changes should be made to the eight business reasons for refusing a request. Consideration was given to recent changes to business and individual working practices, such as the rise in (and public acceptance of) homeworking and greater flexibility following the Covid-19 pandemic. However, responses varied between those suggesting that the list is too broad and should be narrowed, and some employers suggesting that the list should be expanded due to concerns over employee supervision and collaboration within homeworking arrangements. The government’s conclusion was that no clear picture had arisen, and so the decision is to leave the current list of business reasons as it is.

The government notes that many respondents seemed unaware that a temporary flexible working arrangement could be agreed to under the current framework, and proposes to develop enhanced guidance to raise awareness and understanding of how to make and administer temporary requests. The government also says it will launch a call for evidence to better understand how informal or ad hoc flexible working works in practice.

How is this significant for employers and what happens next?

The headline change of making flexible working requests a “day one” right is the most significant, but seems unlikely to be particularly radical in practice. The consultation notes that many employers already agree to consider a flexible working request from day one, particularly where there is a change in an employee’s circumstances that will affect their working arrangements. Offering flexible working can often be used to attract new talent to a business, and it is something that employees are increasingly looking for in a post-pandemic world. In addition, the right will still only apply once someone has started work – although it is worth remembering that issues of indirect discrimination arising from refusal of flexible working requests (such as requests to accommodate disabilities or childcare) already apply from the point at which someone applies for employment.

The government’s other plans do not suggest that employers will need to make significant changes to their current practices. Businesses will need to be mindful of the tighter timeframe for considering requests and aware of the fact that employees may make more than one request in a 12-month period. This may involve training managers to ensure they are able to identify flexible working requests and supporting them with responding within the reduced timeframe. The requirement to consult the employee will also need to be factored into an employer’s processes for considering a flexible working request, but many employers are likely to do this already.

There continues to be a divide in opinion on the merits of homeworking and working remotely. One notable omission from the consultation was the environmental impact of a particular flexible working request which is considered in our recent article – perhaps this could have been one for a revised list of business reasons.

Many employees now expect considerable flexibility from their employers. It is important, however, that businesses continue to consider whether any legal or tax issues arise from working remotely (particularly when working abroad). Further information on remote and homeworking requests can be found in our recent publications on hybrid working and remote working overseas.

If new working arrangements are agreed, employers will need to remain vigilant to immigration issues that might arise. If the employee is a sponsored visa holder, most significant changes to their working arrangements must be reported to the Home Office using the Sponsor Management System. For example, any reduction in working hours which leads to a decrease in pay must be reported within 10 working days from the date the new salary takes effect. For Skilled Worker visa holders, employers must also ensure that the new salary continues to meet the relevant salary threshold for the role specified under the Standard Occupational Classification code for the employee’s role, as well as the general salary threshold.

No specific timescale has been given for the proposed reforms. It is likely that most of the changes will be linked to the progression of the Bill through parliament, which will reach the Committee stage on 7 December 2022. The right to request from day one is not currently in the Bill, and the response says it will be introduced “through secondary legislation when parliamentary time allows”. We have heard this phrase before with proposals that have yet to see the light of day! However, the link with other reforms in the Bill may mean that this change is given priority.

Related Item(s): Remote working overseas, Employment, Equality & Diversity

Author(s)/Speaker(s): Hannah Grayson, Despina Stoimenidi,

The government’s response to consultation on flexible working proposes a “day one” right to request and various other changes to the current rules, but stops short of more radical reform.

Text:

What is the current right to request flexible working?

Since 2014, employees with at least 26 weeks’ continuous service have been able to make a written request for flexible working. The request can be to change location, hours and times of work, and can be made for any reason. Employers are not required to agree to the request, but can only refuse it for one of eight specified business reasons. Our previous article on the government consultation sets out the current regime in more detail.

What will change and what will remain the same?

The government’s consultation on flexible working closed on 1 December 2022 and received over 1,600 responses from a wide range of stakeholders, including both organisations and individuals. Respondents to the consultation commented that flexible working is important for many organisations, improves access to employment for protected groups, and often benefits both the employer and employee.

The consultation has been running alongside a Private Member’s Bill (the Employment Relations (Flexible Working) Bill (the Bill)), which passed its Second Reading on 28 October 2022 and is being supported by the government. Our recent article on this and other Private Member’s Bills is here.

The government’s response and conclusions sets out a number of changes to the current rules. These changes are the same as the government proposed in the original consultation paper. As noted in our previous article, these are relatively modest rather than radical reforms. Most of the government’s conclusions also reflect the changes already set out in the Bill, which the government has confirmed it will continue to support.

The headline change is making the right to request flexible working a day one right. The Bill does not cover this issue. The consultation response estimates that this would make the right available to an additional 2.2 million people and would make it the “norm” rather than a right to be earned. This proposal was well received by both individuals and organisations, with 91% of respondents in favour, and it was noted that many employers are already agreeing to consider flexible working requests from day one anyway. Some respondents raised concerns about the level of disruption that this could cause to the workplace, and some commented that there could be a negative impact on the working relationship where an employee seeks to alter their working arrangements so soon after agreeing their contract.

Overall, the government concluded that this would be a proportionate step to take. In doing so, it emphasises that this remains a right to request, not a right to have.

The changes which overlap with the Bill are:

• Requiring employers to consult with their employees, as a means of exploring the available options, before rejecting their flexible request. Consideration was given to whether employers should show (through a written notice to the employee) that they have considered alternative arrangements when rejecting a flexible working request. Concerns were raised regarding the administrative burden that this could place on employers. The government has concluded (in line with the Bill) that employers should be required to consult with their employee before rejecting their flexible working request, but this now stops short of requiring any consideration of alternatives to be set out in writing.

• Allowing employees to make two flexible working requests in any 12-month period and requiring employers to respond to requests within two months. The government notes concerns raised by employers over whether a shorter timeframe is insufficient for proper consideration of any business implications, but they decided on the evidence in the responses that the change should go ahead. The main reason in favour given by respondents was that circumstances can change within 12 months and will often necessitate a quicker response to avoid negative outcomes for both employees and employers. Again, this reflects two of the key changes in the Bill.

• Removing the requirement for employees to set out how the effects of their flexible working request might be dealt with by the employer. Some respondent organisations noted that the existing requirement could lead to unfair treatment and possibly indirect discrimination. The government agrees, and also notes that this could be difficult for new employees if it is a day one right. The government therefore intends to remove this requirement – again, as already set out in the Bill

Notably, the government has decided that no changes should be made to the eight business reasons for refusing a request. Consideration was given to recent changes to business and individual working practices, such as the rise in (and public acceptance of) homeworking and greater flexibility following the Covid-19 pandemic. However, responses varied between those suggesting that the list is too broad and should be narrowed, and some employers suggesting that the list should be expanded due to concerns over employee supervision and collaboration within homeworking arrangements. The government’s conclusion was that no clear picture had arisen, and so the decision is to leave the current list of business reasons as it is.

The government notes that many respondents seemed unaware that a temporary flexible working arrangement could be agreed to under the current framework, and proposes to develop enhanced guidance to raise awareness and understanding of how to make and administer temporary requests. The government also says it will launch a call for evidence to better understand how informal or ad hoc flexible working works in practice.

How is this significant for employers and what happens next?

The headline change of making flexible working requests a “day one” right is the most significant, but seems unlikely to be particularly radical in practice. The consultation notes that many employers already agree to consider a flexible working request from day one, particularly where there is a change in an employee’s circumstances that will affect their working arrangements. Offering flexible working can often be used to attract new talent to a business, and it is something that employees are increasingly looking for in a post-pandemic world. In addition, the right will still only apply once someone has started work – although it is worth remembering that issues of indirect discrimination arising from refusal of flexible working requests (such as requests to accommodate disabilities or childcare) already apply from the point at which someone applies for employment.

The government’s other plans do not suggest that employers will need to make significant changes to their current practices. Businesses will need to be mindful of the tighter timeframe for considering requests and aware of the fact that employees may make more than one request in a 12-month period. This may involve training managers to ensure they are able to identify flexible working requests and supporting them with responding within the reduced timeframe. The requirement to consult the employee will also need to be factored into an employer’s processes for considering a flexible working request, but many employers are likely to do this already.

There continues to be a divide in opinion on the merits of homeworking and working remotely. One notable omission from the consultation was the environmental impact of a particular flexible working request which is considered in our recent article – perhaps this could have been one for a revised list of business reasons.

Many employees now expect considerable flexibility from their employers. It is important, however, that businesses continue to consider whether any legal or tax issues arise from working remotely (particularly when working abroad). Further information on remote and homeworking requests can be found in our recent publications on hybrid working and remote working overseas.

If new working arrangements are agreed, employers will need to remain vigilant to immigration issues that might arise. If the employee is a sponsored visa holder, most significant changes to their working arrangements must be reported to the Home Office using the Sponsor Management System. For example, any reduction in working hours which leads to a decrease in pay must be reported within 10 working days from the date the new salary takes effect. For Skilled Worker visa holders, employers must also ensure that the new salary continues to meet the relevant salary threshold for the role specified under the Standard Occupational Classification code for the employee’s role, as well as the general salary threshold.

No specific timescale has been given for the proposed reforms. It is likely that most of the changes will be linked to the progression of the Bill through parliament, which will reach the Committee stage on 7 December 2022. The right to request from day one is not currently in the Bill, and the response says it will be introduced “through secondary legislation when parliamentary time allows”. We have heard this phrase before with proposals that have yet to see the light of day! However, the link with other reforms in the Bill may mean that this change is given priority.

Related Item(s): Remote working overseas, Employment, Equality & Diversity

Author(s)/Speaker(s): Hannah Grayson, Despina Stoimenidi,

The UK and Switzerland have agreed to extend the Services Mobility Agreement (“SMA”) for another three years to continue enabling British and Swiss professionals to work in each other’s countries with greater flexibility until 31 December 2025.

Text:

This agreement became effective from 1 January 2021 and has been aimed at facilitating the delivery of professional services and contracts in the two countries by UK and Swiss professionals respectively. Its extension to 31 December 2025 will benefit the UK’s professional services industry, including accounting, legal, and advertising companies, which make up around 80% of the UK’s GDP.

What is the purpose of the SMA?

The SMA came into force following the end free movement of EU, EEA and Swiss citizens to the UK and British citizens to the EU, EEA and Switzerland as a result of Brexit. Its purpose is to allow:

• British professionals to work in Switzerland for up to 90 days in a calendar year without a Swiss work permit; and

• Swiss professionals to deliver contracts in the UK in a wide range of key sectors for up to 12 months at a time in any 24-month period through preferential access under the GBM Service Supplier visa, subject to certain length of service, qualification, and experience requirements.

The intention of the agreement is to encourage trade between the two countries in the professional services sector and provide certainty and continuity to businesses and the self-employed following the end of free movement. It also aims to facilitate an agreement on comprehensive recognition of professional qualifications of British and Swiss service suppliers.

However, despite the short-term certainty, a long-term free trade agreement with Switzerland has not been reached yet, with negotiations due to be initiated next year. The scope of the agreement is yet to be determined, but aside from being likely to include longer-term arrangements for service suppliers, it also represents an opportunity to negotiate bilateral youth mobility and other immigration-related arrangements.

British professionals looking to work in Switzerland for more than 90 days per calendar year (or those from sectors not covered by the SMA) will still be required to apply for a work permit; equally, Swiss professionals wishing to work in the UK under this agreement are still required to go through the Global Business Mobility (GBM) Service Supplier visa process.

The GBM Service Supplier route

This route is for service suppliers coming to the UK to provide services in line with one of the international trade agreements the UK is a party to.

‘Service suppliers’ are defined as contractual service suppliers employed by an overseas business, or self-employed independent professionals based overseas.

Under this route, applicants must:

• Have a certificate of sponsorship from a sponsor licenced for the GBM Service Supplier route, including a confirmation they will be paid at least the national minimum wage;

• Either be filling a job in an occupation listed as eligible for the GBM routes under Appendix Skilled Occupations, or have a university degree or equivalent technical qualification, subject to limited exceptions;

• Be working as or for the overseas service provider at the time of application and outside the UK for at least a cumulative period of 12 months;

• Normally have at least three years’ professional experience in the sector they will be working in; and

• Meet certain requirements regarding being a national or permanent resident of the country they are based in.

Immigration permission under this route will be granted for up to 12 months if the relevant international agreement being relied on is the SMA.

What other routes are available to Swiss professionals wishing to work the UK?

Some other options include the following:

• The Service Providers from Switzerland (SPS) route under the UK-Swiss Citizens’ Rights Agreement (CRA) for up to 90 days of work in a calendar year, noting that this must be under contractual arrangements commenced by 23:00 GMT on 31 December 2020 only, and with no restriction on nationality, sector or salary;

• Other Global Business Mobility (GBM) routes, such as Senior or Specialist Worker or Secondment Worker. More information on the GBM routes can be found in this article.

• The Skilled Worker route, if the role meets the skill and salary requirements; and

• The UK visitor route, which allows certain permitted business activities in the UK for up to six months at a time. It is important to remember that it is not the length of stay, but the type of activity undertaken that dictates whether a work permit is required. Permitted business activities for visitors include, but are not limited to:

• Attending meetings, conferences/seminars and interviews;

• Negotiating and signing contracts, attending trade fairs and carrying out site visits and inspections;

• Conducting general discussions to secure funding for a project; and

• Providing advice, consulting or trouble-shooting, giving training or sharing skills and knowledge on a specific internal project with UK employees of the same corporate group, provided no work is carried out directly with clients.

If you require assistance or have queries about the topics covered in this article, please get in touch with a member of our Immigration Team.

Related Item(s): Immigration, Global Movement of People, Global Mobility

Author(s)/Speaker(s): Supinder Singh Sian, Despina Stoimenidi,

The UK and Switzerland have agreed to extend the Services Mobility Agreement (“SMA”) for another three years to continue enabling British and Swiss professionals to work in each other’s countries with greater flexibility until 31 December 2025.

Text:

This agreement became effective from 1 January 2021 and has been aimed at facilitating the delivery of professional services and contracts in the two countries by UK and Swiss professionals respectively. Its extension to 31 December 2025 will benefit the UK’s professional services industry, including accounting, legal, and advertising companies, which make up around 80% of the UK’s GDP.

What is the purpose of the SMA?

The SMA came into force following the end free movement of EU, EEA and Swiss citizens to the UK and British citizens to the EU, EEA and Switzerland as a result of Brexit. Its purpose is to allow:

• British professionals to work in Switzerland for up to 90 days in a calendar year without a Swiss work permit; and

• Swiss professionals to deliver contracts in the UK in a wide range of key sectors for up to 12 months at a time in any 24-month period through preferential access under the GBM Service Supplier visa, subject to certain length of service, qualification, and experience requirements.

The intention of the agreement is to encourage trade between the two countries in the professional services sector and provide certainty and continuity to businesses and the self-employed following the end of free movement. It also aims to facilitate an agreement on comprehensive recognition of professional qualifications of British and Swiss service suppliers.

However, despite the short-term certainty, a long-term free trade agreement with Switzerland has not been reached yet, with negotiations due to be initiated next year. The scope of the agreement is yet to be determined, but aside from being likely to include longer-term arrangements for service suppliers, it also represents an opportunity to negotiate bilateral youth mobility and other immigration-related arrangements.

British professionals looking to work in Switzerland for more than 90 days per calendar year (or those from sectors not covered by the SMA) will still be required to apply for a work permit; equally, Swiss professionals wishing to work in the UK under this agreement are still required to go through the Global Business Mobility (GBM) Service Supplier visa process.

The GBM Service Supplier route

This route is for service suppliers coming to the UK to provide services in line with one of the international trade agreements the UK is a party to.

‘Service suppliers’ are defined as contractual service suppliers employed by an overseas business, or self-employed independent professionals based overseas.

Under this route, applicants must:

• Have a certificate of sponsorship from a sponsor licenced for the GBM Service Supplier route, including a confirmation they will be paid at least the national minimum wage;

• Either be filling a job in an occupation listed as eligible for the GBM routes under Appendix Skilled Occupations, or have a university degree or equivalent technical qualification, subject to limited exceptions;

• Be working as or for the overseas service provider at the time of application and outside the UK for at least a cumulative period of 12 months;

• Normally have at least three years’ professional experience in the sector they will be working in; and

• Meet certain requirements regarding being a national or permanent resident of the country they are based in.

Immigration permission under this route will be granted for up to 12 months if the relevant international agreement being relied on is the SMA.

What other routes are available to Swiss professionals wishing to work the UK?

Some other options include the following:

• The Service Providers from Switzerland (SPS) route under the UK-Swiss Citizens’ Rights Agreement (CRA) for up to 90 days of work in a calendar year, noting that this must be under contractual arrangements commenced by 23:00 GMT on 31 December 2020 only, and with no restriction on nationality, sector or salary;

• Other Global Business Mobility (GBM) routes, such as Senior or Specialist Worker or Secondment Worker. More information on the GBM routes can be found in this article.

• The Skilled Worker route, if the role meets the skill and salary requirements; and

• The UK visitor route, which allows certain permitted business activities in the UK for up to six months at a time. It is important to remember that it is not the length of stay, but the type of activity undertaken that dictates whether a work permit is required. Permitted business activities for visitors include, but are not limited to:

• Attending meetings, conferences/seminars and interviews;

• Negotiating and signing contracts, attending trade fairs and carrying out site visits and inspections;

• Conducting general discussions to secure funding for a project; and

• Providing advice, consulting or trouble-shooting, giving training or sharing skills and knowledge on a specific internal project with UK employees of the same corporate group, provided no work is carried out directly with clients.

If you require assistance or have queries about the topics covered in this article, please get in touch with a member of our Immigration Team.

Related Item(s): Immigration, Global Movement of People, Global Mobility

Author(s)/Speaker(s): Supinder Singh Sian, Despina Stoimenidi,

The Home Office released updated sponsor guidance on 9 November 2022, in line with the Autumn Immigration Rule updates. This includes some potentially helpful changes for sponsors of workers, however there are some areas of ambiguity as well as some upcoming changes that sponsors should be aware of.

Text:

The guidance updates are contained in Workers and Temporary Workers: guidance for sponsors part 2: sponsor a worker and Workers and Temporary Workers: sponsor a Skilled Worker.

Sponsored workers with an early start date

A sponsor does not need to make a report on the Sponsor Management System (SMS) if they start work once their immigration permission is granted, but before the start date recorded on their Certificate of Sponsorship (CoS). The Home Office had previously confirmed this to individual immigration advisers, but it had not yet been incorporated into the guidance.

Sponsored workers with a delayed start date

The updated guidance confirms that a delayed start date does not need to be reported, provided this is within 28 days of the start date recorded on the worker’s CoS, or the date their immigration permission was granted (whichever is later).

A provision is introduced for the situation where a worker’s start date is pushed back beyond this 28-day period. It is now possible for a sponsor to continue to sponsor such a worker, provided the sponsor reports this on the SMS and the Home Office considers there to be a ‘valid reason’ for the delay. Acceptable reasons include, but are not limited to:

• Travel disruption due to a natural disaster, military conflict or pandemic;

• A requirement for the worker to work out a contractual notice period for their previous employer (and assuming, if they are in the UK, that work was lawful);

• The worker experiencing delays in obtaining an exit visa for their home country; and

• Illness, bereavement or other compelling family or person.

There is risk to a sponsor in using this procedure, as it is possible the worker’s immigration permission could be cancelled if the Home Office considers the reason to be unacceptable. Sponsors should therefore be careful to state the reason clearly in the report and consider taking advice on whether the Home Office is likely to consider it valid.

Requirements for defined Certificate of Sponsorship

When applying for a defined CoS (dCoS) under the Skilled Worker route, a sponsor must now include the number of hours a week the Skilled Worker will be working. If the hours will vary, details of the working pattern must also be given. Because the SMS has not been updated to include a separate field for this, the sponsor must put this information in the ‘summary of job description’ box, otherwise the application could be rejected.

A sponsor is allowed to include a typical estimate of the working hours for the role when requesting a defined CoS, along with ‘(to be confirmed)’ or similar wording. The sponsor must then confirm the exact hours once these have been agreed with the worker and the CoS is assigned.

It is possible (but not a requirement) for the Home Office to request further information to consider a dCoS request. The guidance update confirms that if this happens, the Home Office will aim to decide the application within 20 working days of receiving the information. This is a helpful development, as no service standard was previously available. Some recent dCoS applications have taken many weeks to resolve, so it is unclear whether this timeline will be achieved in practice.

Payment of sponsored workers

The guidance now clarifies that a sponsored worker must be paid into their own bank account. It is acceptable for that account to be in the UK or overseas. Paying onto a pre-paid card such as FOREX is acceptable, provided there is evidence this has been credited onto the worker’s specific card.

Absence of a sponsored worker without pay or on reduced pay

Subject to limited exceptions set out at paragraph 9.30.1. of the Immigration Rules, a sponsored worker may have their immigration permission cancelled if they are absent from work without pay, or on reduced pay, for more than four weeks in any calendar year.

The usual position is that unless an exception applies, a sponsor is expected to stop sponsoring the person and to notify this on the SMS. The new guidance states however that if a sponsor believes there are compelling or exceptional circumstances that make it appropriate for the sponsorship to continue, the sponsor can report the absence and the reasons for this on the SMS. The sponsor should be aware that the permission may still be cancelled if the Home Office does not find the reasons valid.

Exemption from Immigration Skills Charge for certain Senior or Specialist Workers

The guidance confirms that (subject to approval of draft regulations), Senior or Specialist Workers will be exempt from the Immigration Skills Charge if all the following apply:

• The CoS is assigned on or after 1 January 2023;

• The worker is a national of an EU country or a Latvian non-citizen (note that nationals of Iceland, Norway, Liechtenstein and Switzerland are excluded);

• The worker is being assigned to the sponsoring UK business by an EU-based business within the same group; and

• The assignment is for no more than 36 months, as confirmed by the CoS start and end dates.

Sponsor notes on CoS

The new guidance reinstates and expands on previously withdrawn guidance covering when a sponsor note can be used on a CoS.

A sponsor note can be used to for the following:

• Amending the start and end dates of the CoS;

• Amending the salary and working hours for the job (provided the minimum salary threshold is still met);

• Correcting a mistyped name or date of birth (but note that more than one personal details ‘minor error’) requires a new CoS to be assigned); and

• Explanations, e.g. if the applicant is applying for the Health & Care visa.

A new CoS must be assigned if:

• The incorrect SOC code has been entered;

• The incorrect immigration route or subcategory has been selected; and/or

• More than one error has been made on nationality, date of birth or surname.

Increase in National Minimum Wage from 1 April 2023

Sponsors of workers must meet UK legal obligations, which include paying at least the National Minimum Wage (NMW) where this is a requirement.

The Government recently announced that from 1 April 2023, the NMW for 21-22 year-olds will increase by £1, to £10.18. This is above the current minimum hourly rate for the Skilled Worker route, which is £10.10.

It remains to be seen whether the Home Office will increase the minimum hourly rate for Skilled Workers, however the likelihood of this seems high. Although employers will be required to comply with the new NMW in any event, with inflation running at 9.6% in the 12 months to October 2022, adjustments to salary thresholds for sponsored employment would ensure migrant workers are not lower-paid than the rest of the workforce. Sponsors should be aware of this possibility when planning their recruitment budgets for sponsored workers.

If you have any queries about these changes, please get in touch with a member of our Immigration Team.

Related Item(s): Immigration, Global Movement of People, Sponsoring Migrant Workers, Immigration Solutions for HR

Author(s)/Speaker(s): Andrew Osborne, Supinder Singh Sian, Priya Gandhi, Kathryn Denyer,

The Home Office released updated sponsor guidance on 9 November 2022, in line with the Autumn Immigration Rule updates. This includes some potentially helpful changes for sponsors of workers, however there are some areas of ambiguity as well as some upcoming changes that sponsors should be aware of.

Text:

The guidance updates are contained in Workers and Temporary Workers: guidance for sponsors part 2: sponsor a worker and Workers and Temporary Workers: sponsor a Skilled Worker.

Sponsored workers with an early start date

A sponsor does not need to make a report on the Sponsor Management System (SMS) if they start work once their immigration permission is granted, but before the start date recorded on their Certificate of Sponsorship (CoS). The Home Office had previously confirmed this to individual immigration advisers, but it had not yet been incorporated into the guidance.

Sponsored workers with a delayed start date

The updated guidance confirms that a delayed start date does not need to be reported, provided this is within 28 days of the start date recorded on the worker’s CoS, or the date their immigration permission was granted (whichever is later).

A provision is introduced for the situation where a worker’s start date is pushed back beyond this 28-day period. It is now possible for a sponsor to continue to sponsor such a worker, provided the sponsor reports this on the SMS and the Home Office considers there to be a ‘valid reason’ for the delay. Acceptable reasons include, but are not limited to:

• Travel disruption due to a natural disaster, military conflict or pandemic;

• A requirement for the worker to work out a contractual notice period for their previous employer (and assuming, if they are in the UK, that work was lawful);

• The worker experiencing delays in obtaining an exit visa for their home country; and

• Illness, bereavement or other compelling family or person.

There is risk to a sponsor in using this procedure, as it is possible the worker’s immigration permission could be cancelled if the Home Office considers the reason to be unacceptable. Sponsors should therefore be careful to state the reason clearly in the report and consider taking advice on whether the Home Office is likely to consider it valid.

Requirements for defined Certificate of Sponsorship

When applying for a defined CoS (dCoS) under the Skilled Worker route, a sponsor must now include the number of hours a week the Skilled Worker will be working. If the hours will vary, details of the working pattern must also be given. Because the SMS has not been updated to include a separate field for this, the sponsor must put this information in the ‘summary of job description’ box, otherwise the application could be rejected.

A sponsor is allowed to include a typical estimate of the working hours for the role when requesting a defined CoS, along with ‘(to be confirmed)’ or similar wording. The sponsor must then confirm the exact hours once these have been agreed with the worker and the CoS is assigned.

It is possible (but not a requirement) for the Home Office to request further information to consider a dCoS request. The guidance update confirms that if this happens, the Home Office will aim to decide the application within 20 working days of receiving the information. This is a helpful development, as no service standard was previously available. Some recent dCoS applications have taken many weeks to resolve, so it is unclear whether this timeline will be achieved in practice.

Payment of sponsored workers

The guidance now clarifies that a sponsored worker must be paid into their own bank account. It is acceptable for that account to be in the UK or overseas. Paying onto a pre-paid card such as FOREX is acceptable, provided there is evidence this has been credited onto the worker’s specific card.

Absence of a sponsored worker without pay or on reduced pay

Subject to limited exceptions set out at paragraph 9.30.1. of the Immigration Rules, a sponsored worker may have their immigration permission cancelled if they are absent from work without pay, or on reduced pay, for more than four weeks in any calendar year.

The usual position is that unless an exception applies, a sponsor is expected to stop sponsoring the person and to notify this on the SMS. The new guidance states however that if a sponsor believes there are compelling or exceptional circumstances that make it appropriate for the sponsorship to continue, the sponsor can report the absence and the reasons for this on the SMS. The sponsor should be aware that the permission may still be cancelled if the Home Office does not find the reasons valid.

Exemption from Immigration Skills Charge for certain Senior or Specialist Workers

The guidance confirms that (subject to approval of draft regulations), Senior or Specialist Workers will be exempt from the Immigration Skills Charge if all the following apply:

• The CoS is assigned on or after 1 January 2023;

• The worker is a national of an EU country or a Latvian non-citizen (note that nationals of Iceland, Norway, Liechtenstein and Switzerland are excluded);

• The worker is being assigned to the sponsoring UK business by an EU-based business within the same group; and

• The assignment is for no more than 36 months, as confirmed by the CoS start and end dates.

Sponsor notes on CoS

The new guidance reinstates and expands on previously withdrawn guidance covering when a sponsor note can be used on a CoS.

A sponsor note can be used to for the following:

• Amending the start and end dates of the CoS;

• Amending the salary and working hours for the job (provided the minimum salary threshold is still met);

• Correcting a mistyped name or date of birth (but note that more than one personal details ‘minor error’) requires a new CoS to be assigned); and

• Explanations, e.g. if the applicant is applying for the Health & Care visa.

A new CoS must be assigned if:

• The incorrect SOC code has been entered;

• The incorrect immigration route or subcategory has been selected; and/or

• More than one error has been made on nationality, date of birth or surname.

Increase in National Minimum Wage from 1 April 2023

Sponsors of workers must meet UK legal obligations, which include paying at least the National Minimum Wage (NMW) where this is a requirement.

The Government recently announced that from 1 April 2023, the NMW for 21-22 year-olds will increase by £1, to £10.18. This is above the current minimum hourly rate for the Skilled Worker route, which is £10.10.

It remains to be seen whether the Home Office will increase the minimum hourly rate for Skilled Workers, however the likelihood of this seems high. Although employers will be required to comply with the new NMW in any event, with inflation running at 9.6% in the 12 months to October 2022, adjustments to salary thresholds for sponsored employment would ensure migrant workers are not lower-paid than the rest of the workforce. Sponsors should be aware of this possibility when planning their recruitment budgets for sponsored workers.

If you have any queries about these changes, please get in touch with a member of our Immigration Team.

Related Item(s): Immigration, Global Movement of People, Sponsoring Migrant Workers, Immigration Solutions for HR

Author(s)/Speaker(s): Andrew Osborne, Supinder Singh Sian, Priya Gandhi, Kathryn Denyer,

This article considers the rights of British citizens to access the Schengen Area as visitors post-Brexit for leisure, business and work purposes. It highlights some of the compliance and planning issues employers and individuals should be aware of.

Text:

What is the difference between the European Union and the Schengen Area?

The European Union (EU) is an international political and economic union of 27 countries which issues common economic, social and security policies. Amongst other rights, EU citizens benefit from free movement of workers including the right to access, reside and work in another member state.

The Schengen Area on the other hand was created to enhance the functioning of the internal market with free movement of people (as apposed to workers) between the participating countries by abolishing internal border control whilst simultaneously strengthening and harmonizing external border control put in place for third country nationals, i.e. citizens of countries outside of the European Economic Area (EEA).

The following countries currently belong to the Schengen Area: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and Switzerland. The following EU member states are not part of the Schengen Area: Ireland, Romania, Bulgaria, Cyprus and Croatia.

Are British citizens entitled to access and reside within the Schengen Area?

On 10 April 2019, the EU decided to add the UK to the list of third countries whose citizens can travel visa-free to the Schengen Area, effectively ensuring visa free travel after the end of the Brexit transition period on 31 December 2020.

In the absence of EU-derived free movement rights, British citizens can access the Schengen Area and reside on the territory of the countries of the Schengen Area for a duration of no more than 90 days in any 180-day period without having to apply for a short-term visa (the so-called ‘Schengen visa’ or ‘visa type C’).

In order to be able to reside longer than 90 days in any 180-day period, a British citizen must apply for a long-term visa (‘visa type D’) or immediately obtain a residence permit in the country where they intend to reside after the 90-day period comes to an end.

How is the 90/180-day rule applied in practice?

In order to be able to access or reside within the Schengen territory without a visa type D or a local residence permit, a British citizen must ensure that their stay on the territory of the Schengen Area never exceeds 90 days in a rolling period of 180 days.

To correctly apply this rule, two factors need to be monitored:

• The duration of Schengen Area stay: each day the British citizen stays in a country belonging to the Schengen Area will count towards the 90 days credit including the day of arrival and the day of departure.

• Timeframe: the maximum credit of 90 days must be observed within a moving period of 180 days, effectively preventing the possibility to reset the credit by leaving the Schengen Area for a short duration.

The European Commission has issued a tool to assist employers and individuals with the calculation of the 90/180 days.

The 90/180-days rule can be applied in different ways including:

• Control (internal audit, border control or inspection services):

• Can a British citizen be refused access to the Schengen Area at a certain date?

• Can a British citizen legally reside within the Schengen Area based on his passport at a certain date?

• Planning (by the individual or global mobility HR):

• Will the British citizen need a visa type D in order to access the Schengen Area at a certain date in the future?

• Will the British citizen need to obtain a residence permit during the envisaged period of stay within the Schengen Area?

The following factors should be taken into consideration:

• Every day spent in a country belonging to the Schengen Area has to be taken into consideration regardless of the reason of the stay (i.e. both business and leisure)

• Every day spent in a country belonging to the Schengen Area has to be taken into consideration regardless of the time of arrival or time of departure (i.e. part days)

• The relevant timeframe to apply the 90 days credit is 180 days which does not always coincide with six months.

Which sanctions can be applied if a person overstays?

If a British citizen does not comply with the 90/180-days rule and has not applied for the required long-term visa and/or residence permits in time, they will be considered an illegal third country national.

In the absence of a common policy on penalties, sanctions will vary depending on the duration of the overstay, the purpose of the stay and the country establishing the breach. In general, the following sanctions can be applied:

• Criminal or administrative sanctions including fines for the British citizen and/or their employer;

• Deportation and/or temporary re-entry ban; and

• Refusal of future visa requests/work permits.

Are British citizens entitled to work in the Schengen Area?

There is a general misconception that the visa exemption for the Schengen Area also covers the right to work within the Schengen Area. It does not.

British citizens are not automatically entitled to work in the Schengen Area based on their passport. The visa exemption is exclusively related to the right to access the Schengen Area and the right to reside within the Schengen Area.

The right to work will have to be verified based on the applicable legal framework in each jurisdiction.

Although the Trade and Cooperation Agreement concluded between the EU and the UK provides for a limited number of work permit exemptions for short-term business visitors, local access to the labour market in each Schengen Area member country should always be verified, taking into account the circumstances and nature of the activities.

What should we do to ensure compliance with the applicable legal framework from an employer point of view?

As soon as a British citizen is required to perform work within the Schengen Area, either under an employer-driven temporary cross-border assignment or an employee-driven temporary agile work arrangement, a screening and verification process should be initiated.

Firstly, the Schengen Calculator should be used as a ‘planning tool’ to verify the residence-related requirements (i.e. British passport with at least three months’ validity beyond the end of the proposed visit, visa type D or local residence permit).

Because both business and personal travel must be taken into account, an employer may have a legitimate reason to monitor an employee’s recent and proposed travel to the Schengen Area for both purposes. Failure to correctly monitor all travel to the Schengen Area may disrupt necessary business travel and/or may lead to potential liabilities to the employer for overstay. This can be a serious issue for an employer, particularly if the employee is senior or required to travel for business-critical reasons. From a data protection perspective, employers should ensure they are transparent about the proposed monitoring by clearly explaining the extent and reasons for the monitoring.

In addition, any work-related requirements should be assessed (i.e. exemption or authorisation to work) to enable the envisaged activities to go ahead within the different countries of the Schengen Area.

The timing and scope of business or work-related activities can be significantly impacted if additional residence- and/or work-related requirements are identified late in the travel planning process. To avoid delays or other logistical issues, it is therefore recommended to start this screening and verification process as early as possible.

If you have any specific queries about travel and work within the Schengen Area, please get in touch with a member of our Immigration Team.

Related Item(s): Immigration, Global Movement of People

Author(s)/Speaker(s): Supinder Singh Sian, Simon Albers, Clara Le Chevallier,

This article considers the rights of British citizens to access the Schengen Area as visitors post-Brexit for leisure, business and work purposes. It highlights some of the compliance and planning issues employers and individuals should be aware of.

Text:

What is the difference between the European Union and the Schengen Area?

The European Union (EU) is an international political and economic union of 27 countries which issues common economic, social and security policies. Amongst other rights, EU citizens benefit from free movement of workers including the right to access, reside and work in another member state.

The Schengen Area on the other hand was created to enhance the functioning of the internal market with free movement of people (as apposed to workers) between the participating countries by abolishing internal border control whilst simultaneously strengthening and harmonizing external border control put in place for third country nationals, i.e. citizens of countries outside of the European Economic Area (EEA).

The following countries currently belong to the Schengen Area: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and Switzerland. The following EU member states are not part of the Schengen Area: Ireland, Romania, Bulgaria, Cyprus and Croatia.

Are British citizens entitled to access and reside within the Schengen Area?

On 10 April 2019, the EU decided to add the UK to the list of third countries whose citizens can travel visa-free to the Schengen Area, effectively ensuring visa free travel after the end of the Brexit transition period on 31 December 2020.

In the absence of EU-derived free movement rights, British citizens can access the Schengen Area and reside on the territory of the countries of the Schengen Area for a duration of no more than 90 days in any 180-day period without having to apply for a short-term visa (the so-called ‘Schengen visa’ or ‘visa type C’).

In order to be able to reside longer than 90 days in any 180-day period, a British citizen must apply for a long-term visa (‘visa type D’) or immediately obtain a residence permit in the country where they intend to reside after the 90-day period comes to an end.

How is the 90/180-day rule applied in practice?

In order to be able to access or reside within the Schengen territory without a visa type D or a local residence permit, a British citizen must ensure that their stay on the territory of the Schengen Area never exceeds 90 days in a rolling period of 180 days.

To correctly apply this rule, two factors need to be monitored:

• The duration of Schengen Area stay: each day the British citizen stays in a country belonging to the Schengen Area will count towards the 90 days credit including the day of arrival and the day of departure.

• Timeframe: the maximum credit of 90 days must be observed within a moving period of 180 days, effectively preventing the possibility to reset the credit by leaving the Schengen Area for a short duration.

The European Commission has issued a tool to assist employers and individuals with the calculation of the 90/180 days.

The 90/180-days rule can be applied in different ways including:

• Control (internal audit, border control or inspection services):

• Can a British citizen be refused access to the Schengen Area at a certain date?

• Can a British citizen legally reside within the Schengen Area based on his passport at a certain date?

• Planning (by the individual or global mobility HR):

• Will the British citizen need a visa type D in order to access the Schengen Area at a certain date in the future?

• Will the British citizen need to obtain a residence permit during the envisaged period of stay within the Schengen Area?

The following factors should be taken into consideration:

• Every day spent in a country belonging to the Schengen Area has to be taken into consideration regardless of the reason of the stay (i.e. both business and leisure)

• Every day spent in a country belonging to the Schengen Area has to be taken into consideration regardless of the time of arrival or time of departure (i.e. part days)

• The relevant timeframe to apply the 90 days credit is 180 days which does not always coincide with six months.

Which sanctions can be applied if a person overstays?

If a British citizen does not comply with the 90/180-days rule and has not applied for the required long-term visa and/or residence permits in time, they will be considered an illegal third country national.

In the absence of a common policy on penalties, sanctions will vary depending on the duration of the overstay, the purpose of the stay and the country establishing the breach. In general, the following sanctions can be applied:

• Criminal or administrative sanctions including fines for the British citizen and/or their employer;

• Deportation and/or temporary re-entry ban; and

• Refusal of future visa requests/work permits.

Are British citizens entitled to work in the Schengen Area?

There is a general misconception that the visa exemption for the Schengen Area also covers the right to work within the Schengen Area. It does not.

British citizens are not automatically entitled to work in the Schengen Area based on their passport. The visa exemption is exclusively related to the right to access the Schengen Area and the right to reside within the Schengen Area.

The right to work will have to be verified based on the applicable legal framework in each jurisdiction.

Although the Trade and Cooperation Agreement concluded between the EU and the UK provides for a limited number of work permit exemptions for short-term business visitors, local access to the labour market in each Schengen Area member country should always be verified, taking into account the circumstances and nature of the activities.

What should we do to ensure compliance with the applicable legal framework from an employer point of view?

As soon as a British citizen is required to perform work within the Schengen Area, either under an employer-driven temporary cross-border assignment or an employee-driven temporary agile work arrangement, a screening and verification process should be initiated.

Firstly, the Schengen Calculator should be used as a ‘planning tool’ to verify the residence-related requirements (i.e. British passport with at least three months’ validity beyond the end of the proposed visit, visa type D or local residence permit).

Because both business and personal travel must be taken into account, an employer may have a legitimate reason to monitor an employee’s recent and proposed travel to the Schengen Area for both purposes. Failure to correctly monitor all travel to the Schengen Area may disrupt necessary business travel and/or may lead to potential liabilities to the employer for overstay. This can be a serious issue for an employer, particularly if the employee is senior or required to travel for business-critical reasons. From a data protection perspective, employers should ensure they are transparent about the proposed monitoring by clearly explaining the extent and reasons for the monitoring.

In addition, any work-related requirements should be assessed (i.e. exemption or authorisation to work) to enable the envisaged activities to go ahead within the different countries of the Schengen Area.

The timing and scope of business or work-related activities can be significantly impacted if additional residence- and/or work-related requirements are identified late in the travel planning process. To avoid delays or other logistical issues, it is therefore recommended to start this screening and verification process as early as possible.

Do similar rules apply to visitors to the UK?

The UK is not part of the Schengen area. Visitors to the UK are ordinarily given permission to enter the UK for six months at a time. Although there is no defined rule on how many days a person can be present in the UK over a specific period of time, visitors are not allowed to live in the UK through frequent or successive visits.

The UK also operates its own rules on what activities are allowed for visitors and these are not the same as for rules for visitors to the Schengen Zone. With limited, defined exceptions, business visitors are not allowed to work in the UK, nor are they allowed to receive payment from a UK source for their activities.

If you have any specific queries about travel and work within the Schengen Area, please get in touch with a member of our Immigration Team.

Related Item(s): Immigration, Global Movement of People

Author(s)/Speaker(s): Supinder Singh Sian, Simon Albers, Clara Le Chevallier,

Do you need to stay up to date with current and proposed employment law developments across Great Britain, Northern Ireland and the Republic of Ireland? If so, our updated Comparative Table, prepared in conjunction with Legal Island, will be a handy reference guide.

Text:

The employment law landscape has changed considerably over the last four years and is continuing to change rapidly. Many developments have stemmed from the Covid-19 pandemic, which shone a light on employee wellbeing, flexibility, sustainability and shifting values.

There has been less legislative change in Northern Ireland (NI) than in Great Britain (GB) and the Republic of Ireland (ROI) for a number of reasons, including the lack of law-making institutions for three years and political parties failing to reach consensus on changes. This is likely to remain the case until the NI Assembly is restored following the elections in May 2022.

The Comparative Table, which we have prepared in conjunction with Legal Island, is intended to be a handy reference guide to the main employment law developments that have taken place over the last four years, or are planned to take place, in GB, NI and ROI. For ease of comparison, it is split by subject area, with an index at the front. It also includes links to relevant legislation and other documents to help you understand the differences.

Taking a bird’s eye view over the changes and forthcoming developments, some key themes and trends emerging for employers and some notable developments are set out below.

A major change to employment legislation in GB and NI?

The Retained EU Law (Revocation and Reform) Bill (Brexit Freedoms Bill) was introduced in the House of Commons on 22 September 2022. The Brexit Freedoms Bill aims to dramatically increase the pace of repealing, restating or replacing EU laws which were retained by the UK when it exited the EU on 31 December 2020.

The UK is already free to remove retained EU law through the normal parliamentary process, but this can be quite slow. The Brexit Freedoms Bill confers extensive powers on the government to remove or replace EU law by means of regulations. This is a much faster process as it significantly curtails Parliament’s ability to scrutinise any proposals. This has been criticised as being “undemocratic.”

We commented in this article about the Brexit Freedoms Bill’s potential implications for employment law in Great Britain. In this article we consider the potential implications of the Brexit Freedoms Bill for employment laws in NI, especially in light of the commitments given to protect Good Friday Agreement rights and the EU Directives that underpin those rights.

Reshaping your workforce

The lasting effects of the Covid-19 pandemic, the impact of the war in Ukraine, the national cost-of-living crisis and the war for talent are currently major factors driving the need for organisations to change and adapt. Many businesses are making changes to the makeup of their workforce, how and where their employees work and how to reward them. Offering employees greater flexibility over where they work (both home and abroad) and the evolution of the ‘employment deal’ brings opportunities but it also creates risk. Our ‘Reshaping your workforce’ hub brings together our UK employment and immigration team’s knowledge and content and provides a practical look at the issues businesses may face when reshaping their workforce.

New ways of working – and working less?

The Covid-19 pandemic accelerated changes in working practices including an increase in alternative working models and policies that focus on employee wellbeing and flexibility.

• Flexible and remote working: Despite mounting evidence of the growing importance to employees of a work-life balance, in GB we are still awaiting the long-promised Employment Bill – in May 2022, the Queen’s Speech didn’t mention it. However, a number of proposals are now being progressed via Private Members’ Bills, and we watch with interest as to whether this will bring about flexible working from day one. In ROI, following the Work-life Balance Directive, draft legislation is in place to allow parents and carers to make flexible working requests. Employers in ROI should also prepare for remote working requests. We previously commented on the draft remote working legislation. Amended legislation is to be incorporated into the Work Life Balance and Miscellaneous Provisions Bill before the end of 2022, which will likely draw on 20 recommendations set out in a report, which we covered in this article.

• Working less? Our colleague and Employment Partner, James Davies, predicted working less as one of eight future of work predictions in his Eight Drivers of Change report. He said “as a result of evolving values, growing awareness of the health implications of a long-hours culture and increased flexibility…average working hours will continue to decline. Many more people will look to work only part of the week and during hours that fit with their family or other commitments”. A year on, although the drivers behind a reduction in working hours remain, the cost-of-living crisis faced by many will push some to work longer hours to make ends meet. Even so, steps towards a potential four-day working week are gaining momentum across the jurisdictions with employers trialling the effectiveness of a four-day week for their organisations. This follows the Code of Practice on the Right to Disconnect that was introduced in ROI in April 2021, confirming employees’ rights not to habitually work outside their normal working hours, and to “switch off” from work.

• Future of the office: As employers recognise that to attract and retain the best people they have little alternative but to embrace home and hybrid working, our Future of Work Hub continues to explore the future of the office through our insights and podcast series.

Environmental, social and governance (ESG) issues

ESG issues have become a key focus for many organisations across multiple sectors. Employers looking to stay on top of the ESG agenda should factor in several employment law changes including:

• Whistleblowing: ROI has recently passed legislation to transpose the EU Whistleblowing Directive into Irish domestic law. ROI already had existing whistleblower protection but the new law, which is effective from 1 January 2023, expands the protection of the protected disclosures regime. The EU Whistleblowing Directive does not apply to the UK but looks set to influence best practice.

• Modern Slavery Act: We’re expecting reforms in the UK strengthening the Modern Slavery Act. The reforms will implement the plans announced in September 2020. When these are introduced, companies in scope of the current reporting requirements may need to pay even closer attention to their anti-slavery statements as a result. This comes at a time of growing interest in supply chain governance as part of the ESG agenda.

• Climate change: This summer’s record-breaking temperatures made plain the stark reality of climate change. As environmental impact is set to remain a priority for businesses, we considered (from a UK perspective) how the climate emergency could be factored into flexible working requests, and looked at the updated guidance from the Health and Safety Executive, warning employers to prepare for a warmer future.

Ways in which we support employers with their ESG agendas are outlined here.

Diversity and inclusion

Diversity, equity and inclusion remain high on the agenda, whether as part of the “S” in ESG initiatives or separately. Diversity monitoring and positive action are key topics for many employers right now and we’ve seen some significant developments in 2022.

• Pay transparency: In GB, detailed rules governing gender pay gap reporting were set to be reviewed in the first half of 2022 – while this has not happened, a review remains likely. In NI the existing legislative provisions relating to gender pay gap reporting have not yet been brought into force and it’s unlikely that there will be any progress until the NI Assembly is restored following the elections in May 2022. In ROI, from this year, employers (initially with 250 or more employees) will be required to publish the gender pay and bonus gap for the workforce as a whole, their views on what is causing any gap and their plans for closing it. Gaps must be calculated using 12 months’ data up to June 2022, and then published by December.

• Harassment: In GB, the government has intended to introduce a new proactive duty on employers to prevent sexual harassment in the workplace and to bring back laws making employers responsible if employees are harassed by customers or other third parties. It had previously been assumed that provision would be made in the Employment Bill (assuming it is put before Parliament) for these changes. However, a Private Member’s Bill, which covers third party harassment, and would impose a duty on employers to prevent sexual harassment, is now making progress through Parliament. The Equality and Human Rights Commission may start consulting on its new Code of Practice on Harassment, building on the major guidance it published shortly before the Covid-19 pandemic.

• Gender critical beliefs: Two long anticipated tribunal decisions were published in close succession in GB this summer. Both considered the extent to which gender critical beliefs can be expressed in the workplace, impacting on the challenging question of balancing conflicting rights and beliefs at work. We have written about both the Mackereth and the Forstater decisions but this is unlikely to be the final word on this issue.

• Non-disclosure agreements: In GB and ROI steps are being taken to restrict the use of non-disclosure agreements as they relate to incidents of workplace sexual harassment and discrimination. The upshot could be a step change in how employers are required to manage the risks of harassment in a post #Metoo world, but much turns on the detail.

Family rights:

• Carers and working parents: By August 2022, EU member states should have implemented the Work-life Balance Directive, which includes new baseline rights for carers and working parents. In ROI, carers already have rights, as outlined in the Comparative Table and draft legislation implementing the Directive is in place. The UK doesn’t need to implement the directive but has already promised to match the new rights for carers. Under the GB government’s proposals, working carers will be able to take up to 5 days’ carers leave each year to help them carry out their caring responsibilities, although this will be unpaid. The government published some detail on how this new right will operate in September 2021 and the Carer’s Leave Bill has now reached the committee stage of the legislative process.

• Parental bereavement: In NI, eligible employees are now entitled to two weeks’ leave and pay following the loss of a child under the age of 18 (the entitlement being effective from April 2022). This brings NI in line with the existing rights in GB. Following further consultation and agreement on subsequent regulations, the NI provisions are to be extended to include working parents who suffer the loss of a child through miscarriage. In ROI paid leave (maternity and paternity) upon stillbirth or miscarriage is only available after the 24th week of pregnancy. However, the Organisation of Working Time (Reproductive Health Related Leave) Bill makes provision for paid leave even if miscarriage or stillbirth occurred before the 24th week. It also provides for paid leave for the purposes of availing of reproductive healthcare such as IVF. The Bill is currently in the Seanad Third Stage and may be enacted this year.

We’ll certainly continue to see interesting developments as we head towards 2023!

The Comparative Table does not contain a full analysis of the legislative and case law differences between the jurisdictions. We intend to update it at intervals and the authors would appreciate any suggestions for omissions or additions in future.

The Comparative Table is also for guidance only. We recommend that professional advice is obtained before relying on information supplied anywhere within the table.

Related Item(s): Employment, Northern Ireland, Remote working overseas, Environmental, Social and Governance (ESG), Equality & Diversity

Author(s)/Speaker(s): Ciara Fulton, Síobhra Rush, Adam Brett, Joanna Mackey,

Attachment: FINAL Comparative Table

When corporate restructures happen, immigration compliance is commonly overlooked. In this article we outline some of the implications of corporate transactions for sponsor licences and right to work checks and provide some tips for avoiding potential problems.

Text:

There are two main reasons why immigration risk is currently on the rise. Firstly, restructuring activity has been buoyant post-pandemic and this trend is likely to continue as businesses face more challenging economic conditions in the short to medium-term. Secondly, since the UK’s departure from the EU, many more businesses now hold licences to sponsor workers.

What needs to be done in a particular scenario normally requires specific immigration advice. This is because the transactions involved are often complex and the Home Office’s sponsor guidance can sometimes be unclear in this area.

Reporting requirements for the sponsor

Sponsors of workers must notify the Home Office of certain events within 20 working days, including:

• Where there is a change to the sponsor business’s name or the name of any branches included under the licence;

• Where there is a sale of all or part of the sponsor business;

• The sponsor business is involved in a merger or is taken over;

• The sponsor business stops trading or enters into an insolvency procedure;

• The nature of the sponsor business substantially changes; or

• An owner, director, Authorising Officer, Key Contact, Level 1 User or other person involved in the day-to-day running of the sponsor business is convicted of certain immigration or other offences.

Specific sponsor-related records on the Sponsor Management System may also require amending depending on the nature of the changes, including:

• Replacing and/or deactivating Key Personnel listed on the licence;

• Updating address details associated with the licence and individual Key Personnel; and/or

• Disclosing registration details of a governing body.

If the sponsor holds a Senior or Specialist Worker licence or Graduate Trainee licence under the Global Business Mobility routes, or a licence that includes multiple UK branches, it is a good idea to review the overall group structure periodically and send an affidavit to the Home Office regarding the updated structure. An affidavit is normally the most appropriate form of documentation as it provides a clear view of which entities are ‘linked by common ownership or control’, which has a specific definition in the sponsor guidance, and which is more inclusive than under corporate law.

Reporting requirements for sponsored workers

Corporate transactions may prompt a requirement to report certain changes relating to the circumstances of individual sponsored workers. These normally must be completed within 10 working days of the change, and may include things such as:

• New work location;

• End of sponsorship if a person is made redundant or chooses to leave their employment due to the transaction process;

• Significant changes to job title, core duties and/or salary as a consequence of the transaction;

• The worker’s employment coming within scope of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) or similar protection; or

• The worker’s sponsor changing but they remain working for the same employer and in the same employment.

Application for a fresh sponsor licence

In some cases an application for a fresh sponsor licence may be required.

The most common situation where this happens, and one which is poorly understood by sponsors, is where there is a change in the direct ownership of the sponsor business. This may happen either because the business is sold to a new owner as a going concern, or if a share sale results in a controlling number of shares transferring to a new owner.

If this happens, the existing sponsor licence will be either revoked, or, if sponsored workers have moved over to another sponsor licence, made dormant. If the new owners wish to continue sponsoring existingworkers or to sponsor workers in the future, they will need to obtain a fresh sponsor licence.

Another scenario that may prompt a need for a fresh sponsor licence is where part of the sponsor business is sold off, and existing sponsored workers will move to the new business created, or the new business may wish to sponsor workers in the future.

Fresh immigration applications for sponsored workers

Workers for whom TUPE or similar protection applies do not need to make a fresh application for immigration permission if:

• their role is unchanged;

• the new sponsor has a valid sponsor licence in the relevant work route; and

• the new sponsor confirms it takes on responsibility for the worker.

The situation is different however if a sponsored worker’s job changes due to the transaction in such that they are no longer carrying out the same job they were sponsored for, or otherwise are not covered by TUPE or similar protection. In that case, they would need to make a fresh application for immigration permission before starting work in the different role.

Right to work checks

As part of their sponsor duties, sponsors of workers are required to maintain compliant right to work checks across their entire workforce.

Where staff are acquired by a business under TUPE, the Home Office provides employers a period of 60 days from the date of the transfer of the business to carry out repeat right to work checks for acquired staff. Aside from sponsor licence compliance, doing this will enable the acquiring business to proactively deal with any instances of illegal working, and to ensure that reminders for further follow-up checks are put in place for all workers with limited immigration permission.

Top tips for immigration compliance when there is a corporate restructure

We would suggest the following:

• Training staff involved with sponsor licence administration on implications of corporate restructures;

• Establishing and maintaining internal communication channels with the business’s general counsel or other staff involved in corporate management;

• Annually reviewing and updating the Home Office on the business’s corporate structure;

• Annually reviewing sponsor licences held by all UK businesses within a corporate group that are linked by common ownership or control;

• Periodically reviewing the structuring of sponsor licences and considering whether it is most appropriate for licences to be held by individual entities, the UK head office and all UK branches, or groups of branches;

• Flagging at an early stage in a corporate transaction where a business involved in it holds a sponsor licence; and

• Getting specific immigration advice on the implications of a particular corporate transaction, both in terms of sponsor licence compliance and sponsorship of individual workers.

We will be discussing sponsor licence compliance in our upcoming Immigration Law Academy on 9 and 10 November 2022. For more information and to book, click here. If you have any specific queries about how a corporate restructure may affect your business’s sponsor licence or staff, please get in touch with a member of our Immigration Team.

Related Item(s): Immigration, Redundancies, restructuring and insolvency

Author(s)/Speaker(s): Supinder Singh Sian, Naomi Hanrahan-Soar, Sam Koppel, Tom McEvoy,