From 1 January 2023, sponsors of EU national workers being transferred from an EU-based business to the UK for up to 36 months under the Global Business Mobility Senior or Specialist Worker route are exempt from paying the Immigration Skills Charge.

Text:

Subject to limited exceptions, sponsors of skilled workers under the Skilled Worker and Global Business Mobility Senior or Specialist Worker routes are required to pay an Immigration Skills Charge (ISC) each time they assign a Certificate of Sponsorship (CoS) to a worker.

Where it applies, the ISC is £1,000 per worker for sponsorship of up to one year by a medium or large sponsor, then £500 per six months in excess of this. For small or charitable sponsors (as defined in Home Office guidance) it is £364 for sponsorship of up to one year, then £182 per six months in excess of this.

Due to new regulations in effect from 1 January 2023, sponsors of Global Business Mobility route Senior or Specialist Workers will be exempt from paying 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 sponsor group (the EU-based entity must have been disclosed to the Home Office as an entity linked by common ownership or control, in line with the sponsor guidance); and

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

The Global Business Mobility routes caseworker guidance has also been updated to confirm that:

• The sponsor must use an ISC-exempt CoS and provide details of the exemption, in this case:

• That the UK-EU Trade and Cooperation Agreement exemption applies;

• The location in the EU of the business assigning the worker to the UK; and

• Where relevant, confirmation that the worker is a Latvian non-citizen passport holder, or is entitled to one.

The exemption is required under the terms of the EU-UK Trade and Cooperation agreement relating to defined intra-corporate transfers between the EU and UK, therefore its scope does not cover the Skilled Worker category. It is possible that similar terms may be negotiated with other countries in the future as part of bilateral trade deals.

This change is belated, but will reduce the cost of sponsoring intra-company transferees on shorter-term assignments where there is no intention for the worker to settle in the UK.

The regulations also confirm that the ISC does not apply to sponsorship under the Scale-up route.

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

Related Item(s): Immigration

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

When setting yourself up as an employer in Great Britain it is important to ensure that you understand and follow all the relevant rules. This Inbrief summarises the main legal obligations and administrative requirements that apply to new employers.

Text:

Please note that this Inbrief does not cover Northern Ireland, where many of the principles are the same but specific laws may be different.

Inside

• Pre-employment checks

• Statement of Main Terms and Conditions

• Employment policies

• Payroll

• Pension auto-enrolment

• Record keeping

• Working time

• Health and safety

• Modern Slavery statement

• Registration with the ICO

• Useful resources

Pre-Employment Checks

Immigration

It is a criminal offence to knowingly employ an illegal worker, or to have reasonable cause to believe this is the case. There is also a civil penalty regime for employing someone who does not have permission to work in the UK. An employer must also ensure they do not employ a person outside of any restriction on the type of work they can do, or the number of hours per week they can work.

An employer is responsible for checking that all its employees have the right to work in the UK, even if they will be working at home. If the employer has performed the checks correctly, it will have a statutory excuse against liability for a penalty of up to £20,000 if a person turns out to be an illegal worker. The employer must carry out right to work checks in line with the Home Office document, Right to work checks: an employer’s guide – GOV.UK (www.gov.uk). It is important to note that the employer will not have an excuse if it knowingly employs an illegal worker or has reasonable cause to believe it is doing so, regardless of any document checks carried out before or during a person’s employment.

Depending on the circumstances of the individual, a right to work check should normally be carried out either as a digital, online or manual check. The Home Office Employers’ right to work checklist covers the process for each of these. Where indicated in the Employer’s right to work checklist, or where an individual has an outstanding application, administrative review or appeal, the employer should use the Employer Checking Service and obtain a Positive Verification Notice.

Immigration law is complex, particularly where a person has restrictions on their right to work or is a sponsored worker, and there are significant penalties for getting it wrong. Specialist advice should be sought if required, and our team of immigration specialists would be very happy to assist with any questions that you may have.

Other Checks

Employers usually take references from former employers and often check the prospective employee’s qualifications. Rules about rehabilitation of offenders and data protection laws mean that criminal record checks can only be used in limited circumstances.

Statement of Main Terms and Conditions of Employment

When an employer first employs someone, it is required to give them a statement of the main terms and conditions of their employment no later than the beginning of their employment. The contents of the statement are determined by statute. For more information see our Inbrief on Contracts of Employment.

Employees also have a number of minimum rights which should be reflected in their contract, including:

• to be paid at least National Minimum Wage;

• to be given sufficient rest breaks;

• 5.6 weeks’ paid holiday each year;

• a right to minimum statutory notice on termination of employment.

Employment policies

Employers are required to have certain policies and procedures. Some are a minimum legal requirement, while there are many other policies that it is good practice to have in place. Legally required policies are:

• Disciplinary policy;

• Grievance policy;

• Suite of data protection compliant personal data policies, including Privacy Notice, Record of Processing, Breach Policy, Workplace Responsibilities Policy, External Privacy Notice;

• Equal opportunities/diversity policy (not strictly a legal requirement, but an essential element of a defence to a discrimination claim);

• Health and safety policy statement; and

• If turnover is greater than £36 million in a financial year, a statement on modern slavery.

Other policies that it may be useful to have include:

• Harassment and bullying policy;

• Sickness absence policy;

• Flexible working policy;

• Home working policy;

• Whistleblowing policy.

Payroll

Pay As You Earn (PAYE) is the system that HM Revenue & Customs (HMRC) uses to collect Income Tax and National Insurance contributions (NICs) from employees’ pay as they earn it. An employer has to register with HMRC and set up a payroll system. Once registered, the employer receives their Employer PAYE reference and links to the HMRC website where it can download all the forms and information needed to operate PAYE.

Employers are required to deduct tax and NICs from employees’ pay each pay period and to pay Employer’s Class 1 NICs if they earn above a certain threshold. These amounts are paid to HMRC monthly or quarterly. If the correct amounts are not sent, or are sent in late, interest may be payable. In order to make such deductions from an employee’s pay the employer needs their employer PAYE reference, the employee’s tax code and the employee’s National Insurance number. The employee will be able to supply their National Insurance number. The employee’s tax code is usually available from their P45 or P46. The employee’s gross pay, deductions and net pay must be outlined in an itemised payslip.

After the end of the tax year (which runs from 6 April to 5 April every year) an employer must send HMRC an Employer Annual Return (form P35 and forms P14). Almost all employers are required to file this online.

Pension Auto-Enrolment

All employers in the UK must automatically enrol eligible jobholders in a qualifying pension scheme or the National Employment Savings Trust (NEST), unless they are already members of a qualifying scheme. For more information see our Inbrief on Pension auto-enrolment.

Record Keeping

An employer’s main legal obligations in relation to record keeping are:

• Payroll and wage records must be kept for six years from the financial year-end in which payments were made.

• PAYE records must be kept for not less than three years after the end of the tax year to which they relate.

• Sickness records required for the purposes of statutory sick pay must be kept for three years after the end of the tax year in which payments are made.

• Maternity records must be kept for three years after the end of the tax year in which the maternity pay period ends.

• Any report of a reportable accident, death or injury in connection with work must be kept for at least three years from the date the report was made.

• Records in relation to hours worked and payments made to employees must be kept for six years beginning with the end date of the following pay reference period.

• Immigration checks must be kept until two years after the termination of employment.

Working Time

All employers must comply with the Working Time Regulations 1998, which set out limits on working time together with employees’ entitlements to rest breaks and holidays. Employers are responsible for managing employees’ working time. For more information see our Inbrief on the Working Time Regulations.

The main obligations for employers in relation to employees who work during the day are:

• Take all reasonable steps to ensure that each worker’s average working time (including overtime) does not exceed 48 hours per week. The averaging is performed over a 17 week period.

• Give workers “adequate” rest breaks where the pattern of work is such as to put their health and safety at risk, in particular where work is monotonous.

• Keep and maintain records showing whether the limits on average working time and provision of health and safety assessments are being complied with in the case of each worker.

• Allow workers the following rest periods unless they are exempt, in which case compensatory rest will usually need to be given (please contact us to discuss if compensatory rest may be relevant):

• 11 hours’ uninterrupted rest per day;

• 24 hours’ uninterrupted rest per week (or 48 hours uninterrupted rest per fortnight); and

• A rest break of 20 minutes when working more than six hours per day.

• Allow workers 5.6 weeks’ paid holiday a year (equivalent to 28 days for a full-time worker including the eight UK bank holidays).

There are special rules for young workers and night workers.

Health and Safety

Employers are responsible for the health and safety of their employees while they are at work.

Recommended steps

• Appoint a “competent person”. This could involve appointing a specific employee to undertake particular responsibilities as a mobile Health & Safety Manager, or use an external consultant as and when required.

• Have a written health and safety policy statement (all employers with five or more employees are legally required to have such a statement).

• Manage health and safety risks in the employees’ workplace. In the case of homeworkers, this will involve carrying out a risk assessment and taking appropriate measures in light of that assessment. This may involve a health check of employees if deemed necessary.

• Consult all employees on health and safety and provide them with training and information relating to health and safety. There is certain information that employees must be provided with before starting or as soon as practicable after they have started. Please see the Health and Safety Executive (HSE) site (linked below) for further information.

• Employees must also be informed if there are changes that may have health and safety implications (again, please see the HSE site).

• Protect the safety and health of employees, including people with disabilities, and provide welfare facilities. “Welfare facilities” are those that are necessary for employees’ well-being, such as washing, toilet, rest and changing facilities, and somewhere clean to eat and drink during breaks. The employer is responsible for providing employees with personal protective equipment free of charge where such equipment is necessary and paying for eye and eyesight tests for those who use computers.

• Make appropriate arrangements for first aid, accidents and ill health.

Record-keeping and reporting obligations

Employers have record-keeping and reporting obligations to the HSE in relation to work-related deaths, injuries, cases of disease, or near misses involving employees no matter where they are working. Further information can be found on the HSE website.

Employers who have ten or more employees (regardless of location) must maintain an Accident Book, to record all work related injuries, accidents and near misses. This should record:

• The name and address of the person injured or involved in the incident;

• What happened, when and where;

• Who witnessed the incident; and

• Any other relevant details.

Employers’ Liability Insurance

Employees may be injured at work or they, or former employees, may become ill as a result of their work while in a company’s employment. They might try to claim compensation from their employer if they believe it is responsible. Employers are obliged to have at least a minimum level of insurance cover against any such claims.

Modern slavery statement

If turnover exceeds £36 million in a financial year, an employer needs to publish a Modern Slavery Act Transparency Statement on their website. This must set out steps taken to ensure slavery and human trafficking is not taking place in its supply chain or any part of its own business (or must state that the business has not taken any steps, though this is unlikely to be an attractive option). The statement must be approved and signed off by senior management before publication on the website. For more information see our Inbrief on the Modern Slavery Act.

Registration with the Information Commissioner’s Office

A prospective employer needs to notify the Information Commissioner’s Office (ICO) that it intends to process personal information before processing any personal data about employees and pay a small data protection fee.

The ICO’s Employment Practices Code considers data protection in employment records and makes a number of recommendations that an employer should consider when deciding on the retention of employee records, balancing an employer’s need to keep records and a worker’s right to respect for their private life.

Post-Brexit, the Data Protection Act 2018 and the UK General Data Protection Regulation (UK GDPR) contain the key record-keeping requirements in respect of UK law. The ICO’s guide to the UK GDPR is a helpful starting point. Our team of data specialists would also be very happy to assist with any questions that you may have.

Useful resources

• Right to work checks:

• Use the Employer Checking Service – GOV.UK (www.gov.uk)

• Check a job applicant’s right to work: use their share code – GOV.UK (www.gov.uk)

• Right to work checks: an employer’s guide – GOV.UK (www.gov.uk)

• UK Visas and Immigration – GOV.UK (www.gov.uk)

• Payroll:

• PAYE and payroll for employers: Introduction to PAYE – GOV.UK (www.gov.uk)

• Working time guidance:

• The Working Time Regulations (hse.gov.uk)

• Health & safety obligations and guidance:

• A competent person (hse.gov.uk)

• Employer’s responsibilities: Workers’ health and safety (hse.gov.uk)

• Health and Safety Made Simple: The basics for your business (hse.gov.uk)

• Reporting requirements:

• How to make a RIDDOR report – RIDDOR – HSE or by telephone on 0845 300 9923

• Reporting accidents and incidents at work (hse.gov.uk)

• Employer’s liability insurance guidance:

• Employers’ Liability (Compulsory Insurance) Act 1969: A guide for employers HSE40

• Registration with the ICO office:

• Data protection fee | ICO

• Record keeping – data protection guidance:

• The employment practices code (ico.org.uk)

• Guide to the UK General Data Protection Regulation (UK GDPR) | ICO

Type: Inbrief

Related Item(s): Employment

Author(s)/Speaker(s): Zoe Ingenhaag, Hannah Price,

When setting yourself up as an employer in Great Britain it is important to ensure that you understand and follow all the relevant rules. This Inbrief summarises the main legal obligations and administrative requirements that apply to new employers.

Text:

Please note that this Inbrief does not cover Northern Ireland, where many of the principles are the same but specific laws may be different.

Inside

• Pre-employment checks

• Statement of Main Terms and Conditions

• Employment policies

• Payroll

• Pension auto-enrolment

• Record keeping

• Working time

• Health and safety

• Modern Slavery statement

• Registration with the ICO

• Useful resources

Pre-Employment Checks

Immigration

It is a criminal offence to knowingly employ an illegal worker, or to have reasonable cause to believe this is the case. There is also a civil penalty regime for employing someone who does not have permission to work in the UK. An employer must also ensure they do not employ a person outside of any restriction on the type of work they can do, or the number of hours per week they can work.

An employer is responsible for checking that all its employees have the right to work in the UK, even if they will be working at home. If the employer has performed the checks correctly, it will have a statutory excuse against liability for a penalty of up to £20,000 if a person turns out to be an illegal worker. The employer must carry out right to work checks in line with the Home Office document, Right to work checks: an employer’s guide – GOV.UK (www.gov.uk). It is important to note that the employer will not have an excuse if it knowingly employs an illegal worker or has reasonable cause to believe it is doing so, regardless of any document checks carried out before or during a person’s employment.

Depending on the circumstances of the individual, a right to work check should normally be carried out either as a digital, online or manual check. The Home Office Employers’ right to work checklist covers the process for each of these. Where indicated in the Employer’s right to work checklist, or where an individual has an outstanding application, administrative review or appeal, the employer should use the Employer Checking Service and obtain a Positive Verification Notice.

Immigration law is complex, particularly where a person has restrictions on their right to work or is a sponsored worker, and there are significant penalties for getting it wrong. Specialist advice should be sought if required, and our team of immigration specialists would be very happy to assist with any questions that you may have.

Other Checks

Employers usually take references from former employers and often check the prospective employee’s qualifications. Rules about rehabilitation of offenders and data protection laws mean that criminal record checks can only be used in limited circumstances.

Statement of Main Terms and Conditions of Employment

When an employer first employs someone, it is required to give them a statement of the main terms and conditions of their employment no later than the beginning of their employment. The contents of the statement are determined by statute. For more information see our Inbrief on Contracts of Employment.

Employees also have a number of minimum rights which should be reflected in their contract, including:

• to be paid at least National Minimum Wage;

• to be given sufficient rest breaks;

• 5.6 weeks’ paid holiday each year;

• a right to minimum statutory notice on termination of employment.

Employment policies

Employers are required to have certain policies and procedures. Some are a minimum legal requirement, while there are many other policies that it is good practice to have in place. Legally required policies are:

• Disciplinary policy;

• Grievance policy;

• Suite of data protection compliant personal data policies, including Privacy Notice, Record of Processing, Breach Policy, Workplace Responsibilities Policy, External Privacy Notice;

• Equal opportunities/diversity policy (not strictly a legal requirement, but an essential element of a defence to a discrimination claim);

• Health and safety policy statement; and

• If turnover is greater than £36 million in a financial year, a statement on modern slavery.

Other policies that it may be useful to have include:

• Harassment and bullying policy;

• Sickness absence policy;

• Flexible working policy;

• Home working policy;

• Whistleblowing policy.

Payroll

Pay As You Earn (PAYE) is the system that HM Revenue & Customs (HMRC) uses to collect Income Tax and National Insurance contributions (NICs) from employees’ pay as they earn it. An employer has to register with HMRC and set up a payroll system. Once registered, the employer receives their Employer PAYE reference and links to the HMRC website where it can download all the forms and information needed to operate PAYE.

Employers are required to deduct tax and NICs from employees’ pay each pay period and to pay Employer’s Class 1 NICs if they earn above a certain threshold. These amounts are paid to HMRC monthly or quarterly. If the correct amounts are not sent, or are sent in late, interest may be payable. In order to make such deductions from an employee’s pay the employer needs their employer PAYE reference, the employee’s tax code and the employee’s National Insurance number. The employee will be able to supply their National Insurance number. The employee’s tax code is usually available from their P45 or P46. The employee’s gross pay, deductions and net pay must be outlined in an itemised payslip.

After the end of the tax year (which runs from 6 April to 5 April every year) an employer must send HMRC an Employer Annual Return (form P35 and forms P14). Almost all employers are required to file this online.

Pension Auto-Enrolment

All employers in the UK must automatically enrol eligible jobholders in a qualifying pension scheme or the National Employment Savings Trust (NEST), unless they are already members of a qualifying scheme. For more information see our Inbrief on Pension auto-enrolment.

Record Keeping

An employer’s main legal obligations in relation to record keeping are:

• Payroll and wage records must be kept for six years from the financial year-end in which payments were made.

• PAYE records must be kept for not less than three years after the end of the tax year to which they relate.

• Sickness records required for the purposes of statutory sick pay must be kept for three years after the end of the tax year in which payments are made.

• Maternity records must be kept for three years after the end of the tax year in which the maternity pay period ends.

• Any report of a reportable accident, death or injury in connection with work must be kept for at least three years from the date the report was made.

• Records in relation to hours worked and payments made to employees must be kept for six years beginning with the end date of the following pay reference period.

• Immigration checks must be kept until two years after the termination of employment.

Working Time

All employers must comply with the Working Time Regulations 1998, which set out limits on working time together with employees’ entitlements to rest breaks and holidays. Employers are responsible for managing employees’ working time. For more information see our Inbrief on the Working Time Regulations.

The main obligations for employers in relation to employees who work during the day are:

• Take all reasonable steps to ensure that each worker’s average working time (including overtime) does not exceed 48 hours per week. The averaging is performed over a 17 week period.

• Give workers “adequate” rest breaks where the pattern of work is such as to put their health and safety at risk, in particular where work is monotonous.

• Keep and maintain records showing whether the limits on average working time and provision of health and safety assessments are being complied with in the case of each worker.

• Allow workers the following rest periods unless they are exempt, in which case compensatory rest will usually need to be given (please contact us to discuss if compensatory rest may be relevant):

• 11 hours’ uninterrupted rest per day;

• 24 hours’ uninterrupted rest per week (or 48 hours uninterrupted rest per fortnight); and

• A rest break of 20 minutes when working more than six hours per day.

• Allow workers 5.6 weeks’ paid holiday a year (equivalent to 28 days for a full-time worker including the eight UK bank holidays).

There are special rules for young workers and night workers.

Health and Safety

Employers are responsible for the health and safety of their employees while they are at work.

Recommended steps

• Appoint a “competent person”. This could involve appointing a specific employee to undertake particular responsibilities as a mobile Health & Safety Manager, or use an external consultant as and when required.

• Have a written health and safety policy statement (all employers with five or more employees are legally required to have such a statement).

• Manage health and safety risks in the employees’ workplace. In the case of homeworkers, this will involve carrying out a risk assessment and taking appropriate measures in light of that assessment. This may involve a health check of employees if deemed necessary.

• Consult all employees on health and safety and provide them with training and information relating to health and safety. There is certain information that employees must be provided with before starting or as soon as practicable after they have started. Please see the Health and Safety Executive (HSE) site (linked below) for further information.

• Employees must also be informed if there are changes that may have health and safety implications (again, please see the HSE site).

• Protect the safety and health of employees, including people with disabilities, and provide welfare facilities. “Welfare facilities” are those that are necessary for employees’ well-being, such as washing, toilet, rest and changing facilities, and somewhere clean to eat and drink during breaks. The employer is responsible for providing employees with personal protective equipment free of charge where such equipment is necessary and paying for eye and eyesight tests for those who use computers.

• Make appropriate arrangements for first aid, accidents and ill health.

Record-keeping and reporting obligations

Employers have record-keeping and reporting obligations to the HSE in relation to work-related deaths, injuries, cases of disease, or near misses involving employees no matter where they are working. Further information can be found on the HSE website.

Employers who have ten or more employees (regardless of location) must maintain an Accident Book, to record all work related injuries, accidents and near misses. This should record:

• The name and address of the person injured or involved in the incident;

• What happened, when and where;

• Who witnessed the incident; and

• Any other relevant details.

Employers’ Liability Insurance

Employees may be injured at work or they, or former employees, may become ill as a result of their work while in a company’s employment. They might try to claim compensation from their employer if they believe it is responsible. Employers are obliged to have at least a minimum level of insurance cover against any such claims.

Modern slavery statement

If turnover exceeds £36 million in a financial year, an employer needs to publish a Modern Slavery Act Transparency Statement on their website. This must set out steps taken to ensure slavery and human trafficking is not taking place in its supply chain or any part of its own business (or must state that the business has not taken any steps, though this is unlikely to be an attractive option). The statement must be approved and signed off by senior management before publication on the website. For more information see our Inbrief on the Modern Slavery Act.

Registration with the Information Commissioner’s Office

A prospective employer needs to notify the Information Commissioner’s Office (ICO) that it intends to process personal information before processing any personal data about employees and pay a small data protection fee.

The ICO’s Employment Practices Code considers data protection in employment records and makes a number of recommendations that an employer should consider when deciding on the retention of employee records, balancing an employer’s need to keep records and a worker’s right to respect for their private life.

Post-Brexit, the Data Protection Act 2018 and the UK General Data Protection Regulation (UK GDPR) contain the key record-keeping requirements in respect of UK law. The ICO’s guide to the UK GDPR is a helpful starting point. Our team of data specialists would also be very happy to assist with any questions that you may have.

Useful resources

• Right to work checks:

• Use the Employer Checking Service – GOV.UK (www.gov.uk)

• Check a job applicant’s right to work: use their share code – GOV.UK (www.gov.uk)

• Right to work checks: an employer’s guide – GOV.UK (www.gov.uk)

• UK Visas and Immigration – GOV.UK (www.gov.uk)

• Payroll:

• PAYE and payroll for employers: Introduction to PAYE – GOV.UK (www.gov.uk)

• Working time guidance:

• The Working Time Regulations (hse.gov.uk)

• Health & safety obligations and guidance:

• A competent person (hse.gov.uk)

• Employer’s responsibilities: Workers’ health and safety (hse.gov.uk)

• Health and Safety Made Simple: The basics for your business (hse.gov.uk)

• Reporting requirements:

• How to make a RIDDOR report – RIDDOR – HSE or by telephone on 0845 300 9923

• Reporting accidents and incidents at work (hse.gov.uk)

• Employer’s liability insurance guidance:

• Employers’ Liability (Compulsory Insurance) Act 1969: A guide for employers HSE40

• Registration with the ICO office:

• Data protection fee | ICO

• Record keeping – data protection guidance:

• The employment practices code (ico.org.uk)

• Guide to the UK General Data Protection Regulation (UK GDPR) | ICO

Type: Inbrief

Related Item(s): Employment

Author(s)/Speaker(s): Zoe Ingenhaag, Hannah Price,

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,