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,

Following the widespread experience of employees working from home during the Covid-19 pandemic, some employers are starting to implement hybrid working arrangements on a longer-term basis.

Text:

Following the widespread experience of employees working from home during the Covid-19 pandemic, some employers are starting to implement remote working arrangements on a longer-term basis. This Inbrief provides guidance on how to approach the introduction of home and hybrid working and the legal and practical issues to consider.

Inside

• General questions

• Introducing home or hybrid working

• Contractual and policy arrangements

• Management and supervision

• Inclusion and fairness

• Legal and practical issues

General questions

Many employers have been taking the opportunity to reconsider their working arrangements. Reflecting on their experience of remote working during the pandemic, they are looking at “hybrid” arrangements that combine office-based and remote work. Office-based workers are also increasingly expecting remote working to be an option.

In this Inbrief, “hybrid working” refers to arrangements in which employees split their time between a workplace such as an office and working remotely – for example, at home or at a local co-working space. Employees can also work fully from home, where they are rarely if ever required to come to the workplace. It is more common for employers to introduce hybrid rather than fully homeworking, but the same principles apply to those working permanently from home.

Acas has published guidance on working from home and hybrid working which can be accessed here.

Whether this type of working is practicable and, if so, how it will work will depend on the context – the nature of the organisation, the role and the individual’s personal circumstances. Some jobs can be carried out remotely. Others, particularly those based on direct “in-person” presence (e.g., waiter, security guard, dentist) would be inappropriate for home or hybrid working.

Whether an individual can work remotely in an effective way is likely to depend on the nature of their home, the space and facilities available to them, childcare and other caring responsibilities, and the nature of their relations with other occupiers. To facilitate remote working and avoid over-dependence on individuals’ personal arrangements, some employers have set up local hubs from which several employees might work.

Before setting up home or hybrid working arrangements, you should give careful thought to what you are trying to achieve and why:

• Are you actively encouraging this type of working or just agreeing to it if staff push for it?

• How flexible should the arrangements be?

• How will you maintain team culture and cohesion?

• What arrangements will you make for supervision, particularly with inexperienced junior staff?

You should, of course, also consider what your employees want. Some may value the extra time that working from home gives them. Others may prefer to be in an office because they live in a small bedsit, or it enables them to meet colleagues and make friends.

The advantages of successfully introducing hybrid working may include increased productivity and job satisfaction, attracting and retaining a more diverse workforce, greater loyalty, lower turnover and improved working relationships. In the longer term, you may be able to reduce your premises costs.

It may be helpful to consider the following:

• What work really needs to be carried out in the workplace and what can be done elsewhere.

• To what extent improved technology may help, identifying any specific requirements.

• How teams will communicate and work together.

• Any core times when employees need to be available.

• How often a team should meet in person.

• Whether customers or other stakeholders expect particular tasks to be carried out at specific times.

• How to introduce new recruits to the organisation.

Introducing home or hybrid working

What is the best approach if you are proposing to introduce home or hybrid working? In theory, employees might be encouraged to make a statutory request to work flexibly, and many employers may have a policy on such formal requests. But the statutory scheme is not designed for changes initiated by an employer and is also quite formulaic and restrictive.

If you want an open discussion about home and hybrid working arrangements, both to understand the numbers that might be interested and the type of arrangements that employees would value, it is better to take a more open approach. For example:

• Produce a paper on possible hybrid working arrangements with proposals for how they might work.

• Circulate it to staff and any representatives for comments and organise team discussions.

• In light of comments and discussions, develop a policy.

• Ask for specific proposals by individuals on their working arrangements, then consider and seek to agree these.

Be aware that a discussion may become a more formal request for reasonable adjustments by someone with a disability, or a statutory request to work flexibly due to caring responsibilities or for other reasons. In either case, you should clarify the request with the employee and deal with it under your usual policies.

These may be requests for permanent homeworking as well as for hybrid working.

Contractual and policy arrangements

You may need to review your employment contracts and make appropriate changes to reflect the new working arrangements.

As well as outlining the scheme for home or hybrid working, you should consider whether you need to require an employee to attend the office for specific purposes. This might include, for example, requiring employees to attend the office for training, appraisals, or disciplinary issues, together with how expenses for travel to and from the office should be met. The usefulness of such a right in practice may depend on where the individual is living and how much notice you are able to give of a change to normal arrangements.

If an employee moves home, this may mean higher travel expense claims or a practical barrier to attending work at the office, so you could consider placing limits on how far an employee can move from a particular location.
You should also develop a home or hybrid working policy that sits alongside the contract. This might set out the organisation’s commitment to encouraging this type of working, how such arrangements will operate and the expectations of employees and managers. The policy is likely to be non-contractual, meaning you can make changes without employees’ agreement.

Unless you are confident you have identified “the way” for your organisation to deal with remote working, it would be sensible to build in a trial period and review – both the arrangements as a whole and any individual’s personal working situation. Contracts should include both a trial period and a level of flexibility, with a specific (contractual) right to unpick arrangements if they do not work out as expected. You may want to retain the flexibility to alter the arrangement temporarily and/or make agreement to homeworking conditional on certain conditions being met (such as satisfactory performance being maintained).

You may need to modify other policies such as IT, homeworking, sickness, disciplinary and grievance, benefits, expenses and data protection to reflect the fact that employees may be working remotely. There are, for example, likely to be specific requirements related to IT and data security (see below).

Many employers are receiving requests from employees to work from “home” overseas for an extended period, or to split their working time between the UK and an overseas location. Employers need to consider a variety of issues (including tax, social security, immigration and employment implications) before agreeing to any such request. You can find out more on these issues in our Inbrief on remote working overseas.

Management and supervision

Consider how staff working remotely will be managed and supervised. It will be important to ensure effective engagement and to arrange regular one-to-one meetings to discuss what the individual is doing and their performance. In the early days of remote working during the pandemic, it was not unusual for managers to express concern that employees might not work properly at home. Although experience has suggested that employees at home are likely to work as effectively as they would in an office (and perhaps more so), such concerns may linger.

Managers may need to focus less on what employees are actually doing (are they sitting at their desk, when did they get back from lunch?) than on the outcomes of what they do and the results. This may depend on the specific tasks employees are performing and the evidence available as to what they have been doing. A different approach to management and assessment is likely to be required and there may be a need for manager training. You should also consider whether appraisal objectives need to be modified to fit with home or hybrid working.

Inclusion and fairness

It is important to treat all staff fairly and equally when introducing home or hybrid working.

Although one would expect hybrid working arrangements to promote diversity, rules and practices that limit hybrid working may amount to unlawful indirect discrimination unless they are for a good business reason and are proportionate. Making changes to arrangements, such as requiring more office-based work, may risk allegations of discrimination by employees who face difficulties. Long term homeworkers are in practice more likely to be women with caring responsibilities, raising the risk of indirect sex discrimination claims. Disabled employees may also complain about disability discrimination if they are disadvantaged by limits on homeworking.

Everyone should be given the same access to work, support and opportunities for training and promotion. For example, you will need to ensure that the career advancement of those who work on a hybrid basis does not suffer, perhaps because they have less personal contact with significant managers. This is often referred to as proximity bias. Meetings should be scheduled so that all staff can take part in conversations and activities. Again, treating individuals less favourably as a result of their working location (even unconsciously) could also raise discrimination risks

You should also consider whether new joiners can work on a hybrid basis, or whether they need to be in the office for a period to facilitate training and supervision. Although such rules may give rise to age discrimination issues (i.e., if new joiners are likely to be younger), employers may be able to justify them as a proportionate means of achieving a legitimate business aim.

In general terms, the best line to take is to be flexible and open to different approaches, ensuring there are sound business reasons for any restrictions imposed.

Legal and practical issues

Equipment

If remote working is to be a success, it is important that employees have the equipment they need to perform their role. Although specific requirements will depend on the job, most employees will need suitable IT equipment and devices, an ergonomic chair and desk, and effective lighting. They may also require a shredder to ensure confidentiality.

Employers may wish to produce a list of recommended equipment for homeworking and should consider either providing equipment themselves or meeting the costs of employees setting up a “home office”. Under health and safety legislation, employers are required to provide or pay for certain equipment required by the regulations including, for example, display screens and chairs. You should also ensure that your IT department is able to provide remote support for any issues that arise.

Disabled employees may be entitled to auxiliary aids as a reasonable adjustment. If such an aid is reasonably needed, you should make sure it is provided to the individual when working from home at your organisation’s expense.

It is generally more tax efficient for employers to provide home office equipment to their employees rather than reimbursing employees’ costs. The provision of home office equipment by an employer is generally exempt from tax and National Insurance contributions (NICs) provided certain conditions are satisfied, whereas sums paid to reimburse employees who have purchased their own equipment are subject to income tax and NICs.

However, save for mobile phones, it is important to show that the employee is not making significant private use of office equipment.

Provisions regarding private use of office equipment should be included in policies setting out the circumstances in which private use is permitted and warning employees about potential disciplinary consequences if the policy is not followed.

Property and insurance

Employers are required to have employers’ liability insurance. You should tell your insurers that you have employees working from home. You may also want to check that your business insurance covers your property when in employees’ homes (for example, laptops and other equipment provided to support homeworking).

If employees have home insurance or a mortgage, they should be advised to tell their insurer or lender that they are working from home in case it affects their cover.

Expenses

Although an employer has no legal obligation to reimburse expenses incurred by an employee working from home, it is not uncommon to meet actual expenses or to contribute a specific sum on account of expenses. Employees working at home may incur additional expenses on items such as heating and lighting, metered water, business phone calls and perhaps increased insurance premiums. You should consider your approach to this and review your expenses policy, taking account of the tax consequences.

Payments by employers to reimburse employees for reasonable additional household expenses incurred while working under homeworking arrangements are exempt from income tax and NICs provided the employee works at home regularly by agreement. HMRC will accept a payment of £6 per week without requiring supporting evidence and may approve a greater amount if there is supporting evidence of the cost.

If the employer does not reimburse an employee’s additional household expenses, the employee may be able to claim tax relief for those expenses. In practice, aside from concessions introduced for tax years 2020-21 and 2021-22 in response to the pandemic, the rules are strict and it is unusual for employees to receive such tax relief.

Health and Safety

Employers have duties relating to the health and safety of employees which apply even if they are working from their own home. In particular, there is a duty to provide a working environment that is, “so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work”.

You must conduct a risk assessment of all work activities including those of home and hybrid workers with a view to identifying hazards and assessing the degree of risk. You must also take measures to remove any hazards or, where this is not reasonably practicable, to minimise the associated risks. While the Health and Safety Executive (HSE) took a relatively relaxed approach to this during the pandemic, it is likely to expect stricter compliance as arrangements become more prevalent and longer-term.

The HSE has published updated homeworking guidance which applies both to those working from home long term or as part of hybrid working arrangements.

In the context of home and hybrid working, you need to give special consideration to stress and mental health. Some employees may find the conflation of work and home life leads to an increased risk of stress. You should encourage clear boundaries and the taking of adequate rest breaks. Contact between those working at home and their colleagues is likely to be less frequent which may make supervision of work more challenging for managers, especially in relation to new starters or junior employees. It may also make it harder for managers and colleagues to recognise someone who is struggling.

Addressing this may require more proactive steps than in a face-to-face environment. The government has published guidance for employers on how to address loneliness. This suggests setting up a comprehensive wellbeing programme, promoting personal and work-related networks and training managers in having difficult and emotional conversations. The guidance also advises the creation of space, time and opportunities for connection.

Other issues to consider are:

• Equipment supplied by employers must be suitable, in good working order and inspected regularly. There must be suitable and sufficient lighting.

• Employers have various specific duties in relation to computers and display screen equipment (DSE) including laptops, tablets and touch screens. These include ensuring that workstations meet specific requirements in the Health and Safety (Display Screen Equipment) Regulations on equipment and the environment. These also include provisions on breaks, changes in activity and eye tests, together with provision of information and training. The HSE has produced a DSE workstation checklist.

• There are duties to ensure that electrical equipment (such as a laptop or scanner) is safe and to supply appropriate first-aid provisions. In practice, homeworking is likely to be low risk and a simple first-aid kit should be sufficient. Accidents and injuries when working at home should be reported to the employer.

Measures to minimise the impact of these risks might include:

• Checking that each employee feels the work they are being asked to do at home can be done safely.

• Providing guidance and information to employees to help them review their working environment.

• Putting in place mechanisms to enable employees to raise any specific health and safety concerns.

• Ensuring adequate supervision of junior or less experienced staff members, including new joiners.

• Establishing clear expectations on both sides in relation to communications, working hours, availability and so on.

• Ensuring employees have avenues to report mental wellbeing issues and scheduling regular check-ins with home workers.

Data privacy and security

Employees’ normal duties to protect employer and client confidential information still apply when employees are working from home. Information security and confidentiality are more difficult to manage where employees are hosting meetings at home with others in earshot, or without the usual office systems in place for securing devices and documents.

As an employer, you have a duty under data protection legislation to use appropriate technical and organisational measures to ensure security of personal data and to protect it from unauthorised processing and loss. This applies to personal data in an individual’s home. You should carry out a data privacy impact assessment of the implications of employees working from home or otherwise remotely.

Measures that you might decide to take include:

• Ensuring that only the employee has access to personal data on the device and that other members of the household do not have access. In practice, the best approach is for the employer to provide the device.

• Encrypting the device so that if it is stolen, for example, no-one can access the data.

• Centrally controlled updates to software, security, password changes and the capacity to wipe the device remotely.

• Ensuring that when the device is moved from the office to home or vice versa, it is secure. The best protection will probably be encryption.

• Setting out employees’ responsibilities in your homeworking policy (or other relevant policies).

• Rules on retention of personal data and their secure deletion or destruction. You should consider providing a shredder for paper-based records.

• Guidance and training on responsibilities.

The Information Commissioner’s Office has produced guidance on data protection and working from home.

Monitoring

Some employers will want to monitor employees when they are working from home. The reasons for this can vary, including to monitor productivity and/or quality of output, as well as to enable effective supervision.

Monitoring can also be used to establish what hours an employee is working, including in cases where employers are concerned that employees are failing to “switch off”. This is important, as employers still need to comply with their working time obligations when employees are homeworking. For this reason, some employers have adopted “lone worker apps” which allow employees to check in and out at the beginning and end of their working day.

From a legal perspective, it is possible for employers to monitor employees, but the level of monitoring needs to be proportionate and reasonable. Inappropriate and disproportionate monitoring could lead to claims involving the employees’ right to respect for private life under Article 8 of the European Convention on Human Rights (incorporated into UK law by the Human Rights Act 1998).

Employees also have data protection rights and can potentially claim that excessive monitoring amounts to a breach of the duty of mutual trust and confidence implied into all employment contracts – this may give qualifying employees a claim for unfair constructive dismissal. In relation to data protection, the Information Commissioner’s Office’s employment practices code contains good practice guidance for employers in this area.

Monitoring can have a negative impact on employee morale, mental health and employee relations. Therefore, you should weigh the perceived benefits of monitoring against the potential impact on productivity and ensure that you implement any monitoring measures as sensitively as possible.

Type: Inbrief

Related Item(s): Employment, Occupational Health & Safety, Equality & Diversity, Data & Privacy

Author(s)/Speaker(s): Abi Frederick,

Attachment: Home and hybrid working

Following the widespread experience of employees working from home during the Covid-19 pandemic, some employers are starting to implement hybrid working arrangements on a longer-term basis.

Text:

Following the widespread experience of employees working from home during the Covid-19 pandemic, some employers are starting to implement remote working arrangements on a longer-term basis. This Inbrief provides guidance on how to approach the introduction of home and hybrid working and the legal and practical issues to consider.

Inside

• General questions

• Introducing home or hybrid working

• Contractual and policy arrangements

• Management and supervision

• Inclusion and fairness

• Legal and practical issues

General questions

Many employers have been taking the opportunity to reconsider their working arrangements. Reflecting on their experience of remote working during the pandemic, they are looking at “hybrid” arrangements that combine office-based and remote work. Office-based workers are also increasingly expecting remote working to be an option.

In this Inbrief, “hybrid working” refers to arrangements in which employees split their time between a workplace such as an office and working remotely – for example, at home or at a local co-working space. Employees can also work fully from home, where they are rarely if ever required to come to the workplace. It is more common for employers to introduce hybrid rather than fully homeworking, but the same principles apply to those working permanently from home.

Acas has published guidance on working from home and hybrid working which can be accessed here.

Whether this type of working is practicable and, if so, how it will work will depend on the context – the nature of the organisation, the role and the individual’s personal circumstances. Some jobs can be carried out remotely. Others, particularly those based on direct “in-person” presence (e.g., waiter, security guard, dentist) would be inappropriate for home or hybrid working.

Whether an individual can work remotely in an effective way is likely to depend on the nature of their home, the space and facilities available to them, childcare and other caring responsibilities, and the nature of their relations with other occupiers. To facilitate remote working and avoid over-dependence on individuals’ personal arrangements, some employers have set up local hubs from which several employees might work.

Before setting up home or hybrid working arrangements, you should give careful thought to what you are trying to achieve and why:

• Are you actively encouraging this type of working or just agreeing to it if staff push for it?

• How flexible should the arrangements be?

• How will you maintain team culture and cohesion?

• What arrangements will you make for supervision, particularly with inexperienced junior staff?

You should, of course, also consider what your employees want. Some may value the extra time that working from home gives them. Others may prefer to be in an office because they live in a small bedsit, or it enables them to meet colleagues and make friends.

The advantages of successfully introducing hybrid working may include increased productivity and job satisfaction, attracting and retaining a more diverse workforce, greater loyalty, lower turnover and improved working relationships. In the longer term, you may be able to reduce your premises costs.

It may be helpful to consider the following:

• What work really needs to be carried out in the workplace and what can be done elsewhere.

• To what extent improved technology may help, identifying any specific requirements.

• How teams will communicate and work together.

• Any core times when employees need to be available.

• How often a team should meet in person.

• Whether customers or other stakeholders expect particular tasks to be carried out at specific times.

• How to introduce new recruits to the organisation.

Introducing home or hybrid working

What is the best approach if you are proposing to introduce home or hybrid working? In theory, employees might be encouraged to make a statutory request to work flexibly, and many employers may have a policy on such formal requests. But the statutory scheme is not designed for changes initiated by an employer and is also quite formulaic and restrictive.

If you want an open discussion about home and hybrid working arrangements, both to understand the numbers that might be interested and the type of arrangements that employees would value, it is better to take a more open approach. For example:

• Produce a paper on possible hybrid working arrangements with proposals for how they might work.

• Circulate it to staff and any representatives for comments and organise team discussions.

• In light of comments and discussions, develop a policy.

• Ask for specific proposals by individuals on their working arrangements, then consider and seek to agree these.

Be aware that a discussion may become a more formal request for reasonable adjustments by someone with a disability, or a statutory request to work flexibly due to caring responsibilities or for other reasons. In either case, you should clarify the request with the employee and deal with it under your usual policies.

These may be requests for permanent homeworking as well as for hybrid working.

Contractual and policy arrangements

You may need to review your employment contracts and make appropriate changes to reflect the new working arrangements.

As well as outlining the scheme for home or hybrid working, you should consider whether you need to require an employee to attend the office for specific purposes. This might include, for example, requiring employees to attend the office for training, appraisals, or disciplinary issues, together with how expenses for travel to and from the office should be met. The usefulness of such a right in practice may depend on where the individual is living and how much notice you are able to give of a change to normal arrangements.

If an employee moves home, this may mean higher travel expense claims or a practical barrier to attending work at the office, so you could consider placing limits on how far an employee can move from a particular location.
You should also develop a home or hybrid working policy that sits alongside the contract. This might set out the organisation’s commitment to encouraging this type of working, how such arrangements will operate and the expectations of employees and managers. The policy is likely to be non-contractual, meaning you can make changes without employees’ agreement.

Unless you are confident you have identified “the way” for your organisation to deal with remote working, it would be sensible to build in a trial period and review – both the arrangements as a whole and any individual’s personal working situation. Contracts should include both a trial period and a level of flexibility, with a specific (contractual) right to unpick arrangements if they do not work out as expected. You may want to retain the flexibility to alter the arrangement temporarily and/or make agreement to homeworking conditional on certain conditions being met (such as satisfactory performance being maintained).

You may need to modify other policies such as IT, homeworking, sickness, disciplinary and grievance, benefits, expenses and data protection to reflect the fact that employees may be working remotely. There are, for example, likely to be specific requirements related to IT and data security (see below).

Many employers are receiving requests from employees to work from “home” overseas for an extended period, or to split their working time between the UK and an overseas location. Employers need to consider a variety of issues (including tax, social security, immigration and employment implications) before agreeing to any such request. You can find out more on these issues in our Inbrief on remote working overseas.

Management and supervision

Consider how staff working remotely will be managed and supervised. It will be important to ensure effective engagement and to arrange regular one-to-one meetings to discuss what the individual is doing and their performance. In the early days of remote working during the pandemic, it was not unusual for managers to express concern that employees might not work properly at home. Although experience has suggested that employees at home are likely to work as effectively as they would in an office (and perhaps more so), such concerns may linger.

Managers may need to focus less on what employees are actually doing (are they sitting at their desk, when did they get back from lunch?) than on the outcomes of what they do and the results. This may depend on the specific tasks employees are performing and the evidence available as to what they have been doing. A different approach to management and assessment is likely to be required and there may be a need for manager training. You should also consider whether appraisal objectives need to be modified to fit with home or hybrid working.

Inclusion and fairness

It is important to treat all staff fairly and equally when introducing home or hybrid working.

Although one would expect hybrid working arrangements to promote diversity, rules and practices that limit hybrid working may amount to unlawful indirect discrimination unless they are for a good business reason and are proportionate. Making changes to arrangements, such as requiring more office-based work, may risk allegations of discrimination by employees who face difficulties. Long term homeworkers are in practice more likely to be women with caring responsibilities, raising the risk of indirect sex discrimination claims. Disabled employees may also complain about disability discrimination if they are disadvantaged by limits on homeworking.

Everyone should be given the same access to work, support and opportunities for training and promotion. For example, you will need to ensure that the career advancement of those who work on a hybrid basis does not suffer, perhaps because they have less personal contact with significant managers. This is often referred to as proximity bias. Meetings should be scheduled so that all staff can take part in conversations and activities. Again, treating individuals less favourably as a result of their working location (even unconsciously) could also raise discrimination risks

You should also consider whether new joiners can work on a hybrid basis, or whether they need to be in the office for a period to facilitate training and supervision. Although such rules may give rise to age discrimination issues (i.e., if new joiners are likely to be younger), employers may be able to justify them as a proportionate means of achieving a legitimate business aim.

In general terms, the best line to take is to be flexible and open to different approaches, ensuring there are sound business reasons for any restrictions imposed.

Legal and practical issues

Equipment

If remote working is to be a success, it is important that employees have the equipment they need to perform their role. Although specific requirements will depend on the job, most employees will need suitable IT equipment and devices, an ergonomic chair and desk, and effective lighting. They may also require a shredder to ensure confidentiality.

Employers may wish to produce a list of recommended equipment for homeworking and should consider either providing equipment themselves or meeting the costs of employees setting up a “home office”. Under health and safety legislation, employers are required to provide or pay for certain equipment required by the regulations including, for example, display screens and chairs. You should also ensure that your IT department is able to provide remote support for any issues that arise.

Disabled employees may be entitled to auxiliary aids as a reasonable adjustment. If such an aid is reasonably needed, you should make sure it is provided to the individual when working from home at your organisation’s expense.

It is generally more tax efficient for employers to provide home office equipment to their employees rather than reimbursing employees’ costs. The provision of home office equipment by an employer is generally exempt from tax and National Insurance contributions (NICs) provided certain conditions are satisfied, whereas sums paid to reimburse employees who have purchased their own equipment are subject to income tax and NICs.

However, save for mobile phones, it is important to show that the employee is not making significant private use of office equipment.

Provisions regarding private use of office equipment should be included in policies setting out the circumstances in which private use is permitted and warning employees about potential disciplinary consequences if the policy is not followed.

Property and insurance

Employers are required to have employers’ liability insurance. You should tell your insurers that you have employees working from home. You may also want to check that your business insurance covers your property when in employees’ homes (for example, laptops and other equipment provided to support homeworking).

If employees have home insurance or a mortgage, they should be advised to tell their insurer or lender that they are working from home in case it affects their cover.

Expenses

Although an employer has no legal obligation to reimburse expenses incurred by an employee working from home, it is not uncommon to meet actual expenses or to contribute a specific sum on account of expenses. Employees working at home may incur additional expenses on items such as heating and lighting, metered water, business phone calls and perhaps increased insurance premiums. You should consider your approach to this and review your expenses policy, taking account of the tax consequences.

Payments by employers to reimburse employees for reasonable additional household expenses incurred while working under homeworking arrangements are exempt from income tax and NICs provided the employee works at home regularly by agreement. HMRC will accept a payment of £6 per week without requiring supporting evidence and may approve a greater amount if there is supporting evidence of the cost.

If the employer does not reimburse an employee’s additional household expenses, the employee may be able to claim tax relief for those expenses. In practice, aside from concessions introduced for tax years 2020-21 and 2021-22 in response to the pandemic, the rules are strict and it is unusual for employees to receive such tax relief.

Health and Safety

Employers have duties relating to the health and safety of employees which apply even if they are working from their own home. In particular, there is a duty to provide a working environment that is, “so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work”.

You must conduct a risk assessment of all work activities including those of home and hybrid workers with a view to identifying hazards and assessing the degree of risk. You must also take measures to remove any hazards or, where this is not reasonably practicable, to minimise the associated risks. While the Health and Safety Executive (HSE) took a relatively relaxed approach to this during the pandemic, it is likely to expect stricter compliance as arrangements become more prevalent and longer-term.

The HSE has published updated homeworking guidance which applies both to those working from home long term or as part of hybrid working arrangements.

In the context of home and hybrid working, you need to give special consideration to stress and mental health. Some employees may find the conflation of work and home life leads to an increased risk of stress. You should encourage clear boundaries and the taking of adequate rest breaks. Contact between those working at home and their colleagues is likely to be less frequent which may make supervision of work more challenging for managers, especially in relation to new starters or junior employees. It may also make it harder for managers and colleagues to recognise someone who is struggling.

Addressing this may require more proactive steps than in a face-to-face environment. The government has published guidance for employers on how to address loneliness. This suggests setting up a comprehensive wellbeing programme, promoting personal and work-related networks and training managers in having difficult and emotional conversations. The guidance also advises the creation of space, time and opportunities for connection.

Other issues to consider are:

• Equipment supplied by employers must be suitable, in good working order and inspected regularly. There must be suitable and sufficient lighting.

• Employers have various specific duties in relation to computers and display screen equipment (DSE) including laptops, tablets and touch screens. These include ensuring that workstations meet specific requirements in the Health and Safety (Display Screen Equipment) Regulations on equipment and the environment. These also include provisions on breaks, changes in activity and eye tests, together with provision of information and training. The HSE has produced a DSE workstation checklist.

• There are duties to ensure that electrical equipment (such as a laptop or scanner) is safe and to supply appropriate first-aid provisions. In practice, homeworking is likely to be low risk and a simple first-aid kit should be sufficient. Accidents and injuries when working at home should be reported to the employer.

Measures to minimise the impact of these risks might include:

• Checking that each employee feels the work they are being asked to do at home can be done safely.

• Providing guidance and information to employees to help them review their working environment.

• Putting in place mechanisms to enable employees to raise any specific health and safety concerns.

• Ensuring adequate supervision of junior or less experienced staff members, including new joiners.

• Establishing clear expectations on both sides in relation to communications, working hours, availability and so on.

• Ensuring employees have avenues to report mental wellbeing issues and scheduling regular check-ins with home workers.

Data privacy and security

Employees’ normal duties to protect employer and client confidential information still apply when employees are working from home. Information security and confidentiality are more difficult to manage where employees are hosting meetings at home with others in earshot, or without the usual office systems in place for securing devices and documents.

As an employer, you have a duty under data protection legislation to use appropriate technical and organisational measures to ensure security of personal data and to protect it from unauthorised processing and loss. This applies to personal data in an individual’s home. You should carry out a data privacy impact assessment of the implications of employees working from home or otherwise remotely.

Measures that you might decide to take include:

• Ensuring that only the employee has access to personal data on the device and that other members of the household do not have access. In practice, the best approach is for the employer to provide the device.

• Encrypting the device so that if it is stolen, for example, no-one can access the data.

• Centrally controlled updates to software, security, password changes and the capacity to wipe the device remotely.

• Ensuring that when the device is moved from the office to home or vice versa, it is secure. The best protection will probably be encryption.

• Setting out employees’ responsibilities in your homeworking policy (or other relevant policies).

• Rules on retention of personal data and their secure deletion or destruction. You should consider providing a shredder for paper-based records.

• Guidance and training on responsibilities.

The Information Commissioner’s Office has produced guidance on data protection and working from home.

Monitoring

Some employers will want to monitor employees when they are working from home. The reasons for this can vary, including to monitor productivity and/or quality of output, as well as to enable effective supervision.

Monitoring can also be used to establish what hours an employee is working, including in cases where employers are concerned that employees are failing to “switch off”. This is important, as employers still need to comply with their working time obligations when employees are homeworking. For this reason, some employers have adopted “lone worker apps” which allow employees to check in and out at the beginning and end of their working day.

From a legal perspective, it is possible for employers to monitor employees, but the level of monitoring needs to be proportionate and reasonable. Inappropriate and disproportionate monitoring could lead to claims involving the employees’ right to respect for private life under Article 8 of the European Convention on Human Rights (incorporated into UK law by the Human Rights Act 1998).

Employees also have data protection rights and can potentially claim that excessive monitoring amounts to a breach of the duty of mutual trust and confidence implied into all employment contracts – this may give qualifying employees a claim for unfair constructive dismissal. In relation to data protection, the Information Commissioner’s Office’s employment practices code contains good practice guidance for employers in this area.

Monitoring can have a negative impact on employee morale, mental health and employee relations. Therefore, you should weigh the perceived benefits of monitoring against the potential impact on productivity and ensure that you implement any monitoring measures as sensitively as possible.

Type: Inbrief

Related Item(s): Employment, Occupational Health & Safety, Equality & Diversity, Data & Privacy

Author(s)/Speaker(s): Abi Frederick,

Attachment: Home and hybrid working

On 18 October 2022 the Home Office published its Autumn Statement of Changes in Immigration Rules. The statement includes various reforms of interest to businesses. Notably, however, the new Rules do not include the proposed expansion of the Innovator route to partially address the gap left by the closure of the Tier 1 (Investor) route in February 2022.

Text:

This article summarises some of the changes that are most likely to be of interest to employers. Unless otherwise stated, the changes in HC 719 come into effect from 9 November 2022.

No reform to Innovator route

In February 2022, following the closure of the Tier 1 (Investor) route, the Government announced an intention to launch a route for skilled and experienced professional business angel investors to invest in innovative businesses in the UK. This has not been included in the Autumn Statement of Changes. Following the appointment of Grant Shapps as Home Secretary on 19 October 2022, further confirmation is awaited on whether and when this reform will be brought forward.

Skilled Worker

An important amendment is made for calculating whether salary requirements are met under the route. For applications made on or after 9 November 2022, guaranteed payments other than basic salary will be accepted provided they are treated exactly the same as basic gross pay for tax, pension and national insurance purposes.

This more clearly allows payments such as London weighting and other high-cost area supplements to be included in the salary calculation.

A technical amendment is also made to make it clearer that entry clearance or permission to stay will be granted for 14 days after the end date of the certificate of sponsorship, and that a certificate of sponsorship may only be assigned for a maximum of five years.

The going rate for specialty registrar doctors at CT3/CT3-5 level has been dropped from £56,077 to £51,057, to correct a previous error in the Rules.

Global Business Mobility routes

There are new Rules added to cover trade agreements the UK has concluded with Australia and New Zealand. These enable citizens and permanent residents of Australia and New Zealand to qualify under the Service Supplier route to provide services in line with the trade agreements. In the case of individuals applying under the Australian trade agreement, immigration permission will be available for up to a maximum of 12 months. For the New Zealand trade agreement, it will be a maximum of six months.

There are also minor changes to correct previous drafting errors across the Global Business Mobility routes. Most notably, it is clarified that only A-rated sponsors may certify the financial requirement under these routes.

Creative Workers

In an important change, standard visitors and visitors for permitted paid engagements will no longer be allowed to switch into the Creative Worker route from inside the UK.

The change takes effect for permission to stay applications made using a certificate of sponsorship issued on or after 9 November 2022. This will need to be taken into account by the sector in planning moves to the UK.

The Codes of Practice for performers in opera and theatre are separated out, updated and made more specific to their respective fields. Sponsors should review the changes for workers they intend to sponsor from 9 November 2022.

Seasonal Workers – poultry workers

This amendment is in effect from 16:00 on 18 October 2022.

It allows poultry production workers to obtain immigration permission under the Seasonal Worker route, to start no earlier than 18 October and to end no later than 31 December each year. Applications must be made by 15 November each year.

The following occupation codes are covered:

• SOC 5431 – Butcher

• SOC 5433 – Bird/game dresser; Killer and plucker; Plucker; Poulterer; Poultry processor; Poultry sticker; Trusser

• SOC 8111 – Food operative

• SOC 9111 – Poultry catcher/handler

• SOC 9119 – Poultry vaccinator

• SOC 9134 – Poultry meat packer

Applicants must also:

• Be paid at least £10.10 for each hour worked;

• If occupying a SOC 5431 or 5433 role, be paid at least £25,600 per year pro rata; and

• Work on a paid basis at least 30 hours per week.

Work routes – reductions in pay

An amendment is made to allow a sponsored worker’s salary to be temporarily dropped where their hours have been reduced due to individual health reasons or a phased return to work. An occupational health assessment must be supporting the reduction in working hours and the person must still be paid at or above the hourly rate that applied when the person was granted their most recent immigration permission.

Employment in elected posts in local or devolved government

Immigration categories including work limitations are being amended to allow individuals to stand and fill an elected post in local or devolved government where they are otherwise eligible to do so.

Ukraine Extension Scheme

Eligibility for the scheme is being extended to include individuals who are granted UK immigration permission for any period between 18 March 2022 and 16 May 2023. Successful applicants are granted a period of 36 months’ stay under the scheme.

This option may be relevant to some employees who are in the UK and who prefer not to extend their permission under their current route for cost or other reasons. They should however be aware that permission under the Ukraine Extension Scheme does not currently lead to settlement and cannot be counted towards the qualifying period in other settlement routes.

An application deadline is being introduced, to require applications to be made by 16 November 2023. This is to encourage eligible individuals to maintain regular status in the UK.

Children of Hong Kong British Nationals (Overseas)

From 30 November 2022, eligible adult children of Hong Kong British Nationals (Overseas) will be allowed to make their applications (along with their partner, dependent children and adult dependent relatives) independently from the Hong Kong British National (Overseas), and without having to be a part of their parent’s household.

Formal abolition of the police registration requirement

The Immigration Rules are amended to delete Part 10, which sets out the requirements for police registration, and Appendix 2, which lists nationalities subject to those requirements. Further amendments are also made to delete the requirement as an immigration condition for individual visa routes.

These changes represent the formal ending of the scheme, which has been suspended since August 2022. The practical implications of this are discussed in our earlier article.

English language requirement

The British Overseas Territories are included on the majority English speaking country list, which means nationals of these territories will be deemed to meet English language requirements for UK immigration application purposes.

Visitors

Amendments are made to the visitor rules to:

• Allow sports officials to support sports tournaments and events in the UK without having to attend the same event as a sportsperson who is carrying out permitted sporting activities; and

• Allow midwifery students on overseas degree-equivalent courses to come to the UK to carry out unpaid electives with a UK education provider, with the stipulation that they must not treat patients.

Amendments are also made in the International Sportsperson route to enable visiting sports officials to switch into the route without having to leave the UK.

Visa nationals list

Citizens of Colombia, Guyana and Peru have been removed from the visa nationals list, so will no longer require a visa to come to the UK for visits and other short-term purposes of up to six months’ duration.

Applications by overstayers

Paragraph 39E allows applications for permission to stay to be accepted in certain circumstances where the applicant is an overstayer.

The scope of this paragraph is being expanded to include individuals who have overstayed following the rejection of an application that they attempted to make before the expiry of their previous immigration permission. Currently only individuals with a refused application are covered.

Void applications

A new paragraph 34KA is being inserted into the Immigration Rules, which covers void applications. This is currently only contained in Home Office policy guidance.

It defines a void application as one the Home Office cannot grant, and confirms that such an application will not be considered.

Examples of void applications are set out as follows:

• Applications made by persons exempt from immigration control, unless they are applying under the EU Settlement Scheme;

• Applications for temporary immigration permission made by persons who are settled in the UK;

• New applications made by individuals who hold statutory immigration permission during a time where they are within time to appeal a refusal decision, unless that application is under the EU Settlement Scheme or is a human rights or protection claim; and

• Applications where the applicant has died before a decision has been reached.

Our Immigration Law Academy on 9 and 10 November 2022 will cover these changes alongside taking a deep dive into immigration categories for work, sponsorship and right to work. Click here for further information and to sign up. If you have any specific 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, Kathryn Denyer,

On 18 October 2022 the Home Office published its Autumn Statement of Changes in Immigration Rules. The statement includes various reforms of interest to businesses. Notably, however, the new Rules do not include the proposed expansion of the Innovator route to partially address the gap left by the closure of the Tier 1 (Investor) route in February 2022.

Text:

This article summarises some of the changes that are most likely to be of interest to employers. Unless otherwise stated, the changes in HC 719 come into effect from 9 November 2022.

No reform to Innovator route

In February 2022, following the closure of the Tier 1 (Investor) route, the Government announced an intention to launch a route for skilled and experienced professional business angel investors to invest in innovative businesses in the UK. This has not been included in the Autumn Statement of Changes. Following the appointment of Grant Shapps as Home Secretary on 19 October 2022, further confirmation is awaited on whether and when this reform will be brought forward.

Skilled Worker

An important amendment is made for calculating whether salary requirements are met under the route. For applications made on or after 9 November 2022, guaranteed payments other than basic salary will be accepted provided they are treated exactly the same as basic gross pay for tax, pension and national insurance purposes.

This more clearly allows payments such as London weighting and other high-cost area supplements to be included in the salary calculation.

A technical amendment is also made to make it clearer that entry clearance or permission to stay will be granted for 14 days after the end date of the certificate of sponsorship, and that a certificate of sponsorship may only be assigned for a maximum of five years.

The going rate for specialty registrar doctors at CT3/CT3-5 level has been dropped from £56,077 to £51,057, to correct a previous error in the Rules.

Global Business Mobility routes

There are new Rules added to cover trade agreements the UK has concluded with Australia and New Zealand. These enable citizens and permanent residents of Australia and New Zealand to qualify under the Service Supplier route to provide services in line with the trade agreements. In the case of individuals applying under the Australian trade agreement, immigration permission will be available for up to a maximum of 12 months. For the New Zealand trade agreement, it will be a maximum of six months.

There are also minor changes to correct previous drafting errors across the Global Business Mobility routes. Most notably, it is clarified that only A-rated sponsors may certify the financial requirement under these routes.

Creative Workers

In an important change, standard visitors and visitors for permitted paid engagements will no longer be allowed to switch into the Creative Worker route from inside the UK.

The change takes effect for permission to stay applications made using a certificate of sponsorship issued on or after 9 November 2022. This will need to be taken into account by the sector in planning moves to the UK.

The Codes of Practice for performers in opera and theatre are separated out, updated and made more specific to their respective fields. Sponsors should review the changes for workers they intend to sponsor from 9 November 2022.

Seasonal Workers – poultry workers

This amendment is in effect from 16:00 on 18 October 2022.

It allows poultry production workers to obtain immigration permission under the Seasonal Worker route, to start no earlier than 18 October and to end no later than 31 December each year. Applications must be made by 15 November each year.

The following occupation codes are covered:

• SOC 5431 – Butcher

• SOC 5433 – Bird/game dresser; Killer and plucker; Plucker; Poulterer; Poultry processor; Poultry sticker; Trusser

• SOC 8111 – Food operative

• SOC 9111 – Poultry catcher/handler

• SOC 9119 – Poultry vaccinator

• SOC 9134 – Poultry meat packer

Applicants must also:

• Be paid at least £10.10 for each hour worked;

• If occupying a SOC 5431 or 5433 role, be paid at least £25,600 per year pro rata; and

• Work on a paid basis at least 30 hours per week.

Work routes – reductions in pay

An amendment is made to allow a sponsored worker’s salary to be temporarily dropped where their hours have been reduced due to individual health reasons or a phased return to work. An occupational health assessment must be supporting the reduction in working hours and the person must still be paid at or above the hourly rate that applied when the person was granted their most recent immigration permission.

Employment in elected posts in local or devolved government

Immigration categories including work limitations are being amended to allow individuals to stand and fill an elected post in local or devolved government where they are otherwise eligible to do so.

Ukraine Extension Scheme

Eligibility for the scheme is being extended to include individuals who are granted UK immigration permission for any period between 18 March 2022 and 16 May 2023. Successful applicants are granted a period of 36 months’ stay under the scheme.

This option may be relevant to some employees who are in the UK and who prefer not to extend their permission under their current route for cost or other reasons. They should however be aware that permission under the Ukraine Extension Scheme does not currently lead to settlement and cannot be counted towards the qualifying period in other settlement routes.

An application deadline is being introduced, to require applications to be made by 16 November 2023. This is to encourage eligible individuals to maintain regular status in the UK.

Children of Hong Kong British Nationals (Overseas)

From 30 November 2022, eligible adult children of Hong Kong British Nationals (Overseas) will be allowed to make their applications (along with their partner, dependent children and adult dependent relatives) independently from the Hong Kong British National (Overseas), and without having to be a part of their parent’s household.

Formal abolition of the police registration requirement

The Immigration Rules are amended to delete Part 10, which sets out the requirements for police registration, and Appendix 2, which lists nationalities subject to those requirements. Further amendments are also made to delete the requirement as an immigration condition for individual visa routes.

These changes represent the formal ending of the scheme, which has been suspended since August 2022. The practical implications of this are discussed in our earlier article.

English language requirement

The British Overseas Territories are included on the majority English speaking country list, which means nationals of these territories will be deemed to meet English language requirements for UK immigration application purposes.

Visitors

Amendments are made to the visitor rules to:

• Allow sports officials to support sports tournaments and events in the UK without having to attend the same event as a sportsperson who is carrying out permitted sporting activities; and

• Allow midwifery students on overseas degree-equivalent courses to come to the UK to carry out unpaid electives with a UK education provider, with the stipulation that they must not treat patients.

Amendments are also made in the International Sportsperson route to enable visiting sports officials to switch into the route without having to leave the UK.

Visa nationals list

Citizens of Colombia, Guyana and Peru have been removed from the visa nationals list, so will no longer require a visa to come to the UK for visits and other short-term purposes of up to six months’ duration.

Applications by overstayers

Paragraph 39E allows applications for permission to stay to be accepted in certain circumstances where the applicant is an overstayer.

The scope of this paragraph is being expanded to include individuals who have overstayed following the rejection of an application that they attempted to make before the expiry of their previous immigration permission. Currently only individuals with a refused application are covered.

Void applications

A new paragraph 34KA is being inserted into the Immigration Rules, which covers void applications. This is currently only contained in Home Office policy guidance.

It defines a void application as one the Home Office cannot grant, and confirms that such an application will not be considered.

Examples of void applications are set out as follows:

• Applications made by persons exempt from immigration control, unless they are applying under the EU Settlement Scheme;

• Applications for temporary immigration permission made by persons who are settled in the UK;

• New applications made by individuals who hold statutory immigration permission during a time where they are within time to appeal a refusal decision, unless that application is under the EU Settlement Scheme or is a human rights or protection claim; and

• Applications where the applicant has died before a decision has been reached.

Our Immigration Law Academy on 9 and 10 November 2022 will cover these changes alongside taking a deep dive into immigration categories for work, sponsorship and right to work. Click here for further information and to sign up. If you have any specific 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, Kathryn Denyer,

Due to the current low unemployment rate in the UK and the effects of Brexit on movement of workers, more employers are applying for or holding sponsor licences to recruit workers from abroad. The benefits can be substantial, but considerable preparation is involved and sponsorship comes with various duties and responsibilities.

Text:

A helpful diagram summarising UK right to work checks can be viewed here. 

On the 28th September 2022, we hosted a webinar to provide key insights and practical tips on:

• The available sponsor licence categories and when to use them

• Considerations for deciding whether to include only a single entity/business unit or multiple branches under a licence

• The HR systems and processes that need to be in place before applying for a licence

• How the application process works

• Duties and responsibilities as a licence holder

• Key criteria and cost for sponsoring workers under the Skilled Worker and Senior or Specialist Worker categories

You can view the webinar in full here. We have also addressed the wide ranging set of questions from attendees which can be found below.

Q&A for sponsorship of workers in the UK webinar

This Q&A covers questions raised in our Sponsorship of workers in the UK webinar.

Sponsorship Q&A

	Question	Answer
1.	Is a sponsor obliged to sponsor a person within any timeframe after the Sponsor Licence is approved?	No. However, if a sponsor does not use any of its Certificate of Sponsorship (CoS) allocation it is possible that the Home Office may set this to zero at the next annual renewal. Needing to request a CoS allocation (or a defined CoS) may result in a delay to processing an application for a sponsored worker. The sponsor must also comply with sponsor duties throughout the validity of the licence irrespective of whether it has any workers sponsored under it.
2.	Do the jobs need to be advertised on the Government website if they are already advertised on a company’s website?	No. The Resident Labour Market Test that applied to Tier 2 (General) does not apply to the Skilled Worker route. Skilled Worker sponsors must still retain evidence of any recruitment activity undertaken, but this no longer requires advertising to be carried out using JobCentre Plus.
3.	Regarding a PAYE reference, what is the Home Office expecting to be entered when applying for the CoS? Can this just be the payroll employee number?	This is the employer’s PAYE reference number for the payroll the worker will be paid from.
4.	Do we really need to keep a hard copy printout of CoS given we do everything via soft copy filling?	A soft copy of the CoS is acceptable.
5.	How does maternity leave work for sponsored worker? Can they move onto SMP as per resident workers? What if that takes them below their minimum salary level?	A sponsored worker is not allowed to be absent from work without pay or at reduced pay for more than four weeks in any calendar year unless the reason for their absence is for: Statutory maternity leave, paternity leave, parental leave or shared parental leave; Statutory adoption leave; Sick leave; Assisting with a national or international humanitarian or environmental crisis, where the sponsor has agreed to the absence for that purpose; or Taking part in legally organised industrial action. A sponsor must also comply with applicable UK laws, so provided the payment of SMP is carried out in line with the relevant legislation, a reduction of salary for a person on maternity leave would be allowed. All changes in salary and reasoning should be reported on the SMS.
6.	Do you happen to know how long it’s currently taking to process CoS annual allocation renewals?	The Home Office’s service standard is 18 weeks however there is a five-working day priority processing option with availability of 60 slots per weekday. This costs £200 per priority request.
7.	Can a CoS allocation be increased at any point or is it per year?	An allocation can be increased at any point during the year if a sponsor has justification for it. The processing times for an allocation increase are as for Sponsorship Q & A question 6 above.
8.	Is there a way to pull a report of the CoS that have been assigned in the Sponsor Management System (SMS)?	There is no official way to do so but in the ‘View CoS’ screen of the SMS it is possible to select ‘Search for CoS’ will bring up the first 100 results alphabetically by family name if you enter ‘%’ in the fields for family name and given name(s). The Home Office is expected to replace the SMS with a new system as part of its sponsorship roadmap, and this is anticipated to have improved functionality.
9.	Is there a limit on the number of CoS that can be requested in advance?	There is no limit however the Home Office may request information regarding a proposed allocation including the details of any identified workers to be sponsored or other justification for why the allocation is considered by the sponsor to be necessary for their business. The Home Office may refuse a request if not satisfied it is justified.
10.	We are starting to receive applications from recent graduates residing in the UK on Student Visas. In such cases we inform the candidate that in order to be employed they must independently obtain a Graduate Visa, at their cost, as a Student Visa is not valid for a permanent role after graduation. We’ve had push back both from candidates and third parties regarding this. Are we correct? (We do have a sponsor licence and would ultimately expect to apply for a CoS for such employees before their two-year graduate visa expires?)	While you are not required to sponsor a person who has an alternative immigration route open to them, the Graduate route does not accrue time towards settlement in the UK. If an individual wishes to settle in the UK, they may be motivated to take up a position with a business that is prepared to sponsor them under the Skilled Worker route from the outset.
11.	We agreed to pay half of the Immigration Skills Charge for a Skilled Worker visa and the employee agreed to pay the remaining half via salary deduction. I now understand we cannot do this, and our licence is now at risk – is this correct?	If a sponsor passes the cost of the Immigration Skills Charge onto a worker, the sponsor licence may be revoked. If this has happened, the sponsor should refund the worker as soon as possible to bring the licence back into compliance.
12.	Once the sponsored Visa of a person expires, does the company need to get another CoS for them?	If the business wishes to continue to sponsor the individual beyond the expiry of their existing immigration permission, then a new CoS and immigration application will be required.
13.	Are we legally able to send sponsored employees on secondment?	There is no absolute prohibition on this however we would suggest obtaining advice on a case-by-case basis as there are restrictions on working for third parties. Also, it would be important to understand the impact of any absences from the UK on settlement eligibility if the secondment is outside the UK.
14.	Once the CoS is allocated, is it the skilled workers’ responsibility to apply for the visa and then the employer funds the cost?	The visa application is the individual’s responsibility however how much assistance the sponsor provides and who funds the cost of this is a matter for agreement. Some sponsors will put in place a clawback agreement for visa costs. We can advise further on this as needed. The sponsor must however pay for the Immigration Skills Charge in all cases.

Right to work check Q&A

If you have any queries about Sponsorship of workers in the UK, please get in touch with a member of our Immigration Team.

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

Author(s)/Speaker(s): Supinder Singh Sian, Naomi Hanrahan-Soar,

Due to the current low unemployment rate in the UK and the effects of Brexit on movement of workers, more employers are applying for or holding sponsor licences to recruit workers from abroad. The benefits can be substantial, but considerable preparation is involved and sponsorship comes with various duties and responsibilities.

Text:

A helpful diagram summarising UK right to work checks can be viewed here. 

On the 28th September 2022, we hosted a webinar to provide key insights and practical tips on:

• The available sponsor licence categories and when to use them

• Considerations for deciding whether to include only a single entity/business unit or multiple branches under a licence

• The HR systems and processes that need to be in place before applying for a licence

• How the application process works

• Duties and responsibilities as a licence holder

• Key criteria and cost for sponsoring workers under the Skilled Worker and Senior or Specialist Worker categories

You can view the webinar in full here. We have also addressed the wide ranging set of questions from attendees which can be found below.

Q&A for sponsorship of workers in the UK webinar

This Q&A covers questions raised in our Sponsorship of workers in the UK webinar.

Sponsorship Q&A

	Question	Answer
1.	Is a sponsor obliged to sponsor a person within any timeframe after the Sponsor Licence is approved?	No. However, if a sponsor does not use any of its Certificate of Sponsorship (CoS) allocation it is possible that the Home Office may set this to zero at the next annual renewal. Needing to request a CoS allocation (or a defined CoS) may result in a delay to processing an application for a sponsored worker. The sponsor must also comply with sponsor duties throughout the validity of the licence irrespective of whether it has any workers sponsored under it.
2.	Do the jobs need to be advertised on the Government website if they are already advertised on a company’s website?	No. The Resident Labour Market Test that applied to Tier 2 (General) does not apply to the Skilled Worker route. Skilled Worker sponsors must still retain evidence of any recruitment activity undertaken, but this no longer requires advertising to be carried out using JobCentre Plus.
3.	Regarding a PAYE reference, what is the Home Office expecting to be entered when applying for the CoS? Can this just be the payroll employee number?	This is the employer’s PAYE reference number for the payroll the worker will be paid from.
4.	Do we really need to keep a hard copy printout of CoS given we do everything via soft copy filling?	A soft copy of the CoS is acceptable.
5.	How does maternity leave work for sponsored worker? Can they move onto SMP as per resident workers? What if that takes them below their minimum salary level?	A sponsored worker is not allowed to be absent from work without pay or at reduced pay for more than four weeks in any calendar year unless the reason for their absence is for: Statutory maternity leave, paternity leave, parental leave or shared parental leave; Statutory adoption leave; Sick leave; Assisting with a national or international humanitarian or environmental crisis, where the sponsor has agreed to the absence for that purpose; or Taking part in legally organised industrial action. A sponsor must also comply with applicable UK laws, so provided the payment of SMP is carried out in line with the relevant legislation, a reduction of salary for a person on maternity leave would be allowed. All changes in salary and reasoning should be reported on the SMS.
6.	Do you happen to know how long it’s currently taking to process CoS annual allocation renewals?	The Home Office’s service standard is 18 weeks however there is a five-working day priority processing option with availability of 60 slots per weekday. This costs £200 per priority request.
7.	Can a CoS allocation be increased at any point or is it per year?	An allocation can be increased at any point during the year if a sponsor has justification for it. The processing times for an allocation increase are as for Sponsorship Q & A question 6 above.
8.	Is there a way to pull a report of the CoS that have been assigned in the Sponsor Management System (SMS)?	There is no official way to do so but in the ‘View CoS’ screen of the SMS it is possible to select ‘Search for CoS’ will bring up the first 100 results alphabetically by family name if you enter ‘%’ in the fields for family name and given name(s). The Home Office is expected to replace the SMS with a new system as part of its sponsorship roadmap, and this is anticipated to have improved functionality.
9.	Is there a limit on the number of CoS that can be requested in advance?	There is no limit however the Home Office may request information regarding a proposed allocation including the details of any identified workers to be sponsored or other justification for why the allocation is considered by the sponsor to be necessary for their business. The Home Office may refuse a request if not satisfied it is justified.
10.	We are starting to receive applications from recent graduates residing in the UK on Student Visas. In such cases we inform the candidate that in order to be employed they must independently obtain a Graduate Visa, at their cost, as a Student Visa is not valid for a permanent role after graduation. We’ve had push back both from candidates and third parties regarding this. Are we correct? (We do have a sponsor licence and would ultimately expect to apply for a CoS for such employees before their two-year graduate visa expires?)	While you are not required to sponsor a person who has an alternative immigration route open to them, the Graduate route does not accrue time towards settlement in the UK. If an individual wishes to settle in the UK, they may be motivated to take up a position with a business that is prepared to sponsor them under the Skilled Worker route from the outset.
11.	We agreed to pay half of the Immigration Skills Charge for a Skilled Worker visa and the employee agreed to pay the remaining half via salary deduction. I now understand we cannot do this, and our licence is now at risk – is this correct?	If a sponsor passes the cost of the Immigration Skills Charge onto a worker, the sponsor licence may be revoked. If this has happened, the sponsor should refund the worker as soon as possible to bring the licence back into compliance.
12.	Once the sponsored Visa of a person expires, does the company need to get another CoS for them?	If the business wishes to continue to sponsor the individual beyond the expiry of their existing immigration permission, then a new CoS and immigration application will be required.
13.	Are we legally able to send sponsored employees on secondment?	There is no absolute prohibition on this however we would suggest obtaining advice on a case-by-case basis as there are restrictions on working for third parties. Also, it would be important to understand the impact of any absences from the UK on settlement eligibility if the secondment is outside the UK.
14.	Once the CoS is allocated, is it the skilled workers’ responsibility to apply for the visa and then the employer funds the cost?	The visa application is the individual’s responsibility however how much assistance the sponsor provides and who funds the cost of this is a matter for agreement. Some sponsors will put in place a clawback agreement for visa costs. We can advise further on this as needed. The sponsor must however pay for the Immigration Skills Charge in all cases.

Right to work check Q&A

If you have any queries about Sponsorship of workers in the UK, please get in touch with a member of our Immigration Team.

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

Author(s)/Speaker(s): Supinder Singh Sian, Naomi Hanrahan-Soar,

The Home Office has stated that from 1 October 2022, the adjusted manual right to work check process will end. UK employers have been able to use this since 30 March 2020 to deal with difficulties in handling original documents that arose due to the pandemic. In this article we answer some common FAQ about this development.

Text:

For further information on the adjusted process, see here. A helpful diagram summarising UK right to work checks can be viewed here.

Are adjusted checks really ending on 30 September 2022?

The Home Office originally intended to end adjusted manual checks after 16 May 2021. The end date has since been deferred four times. The most recent deferral happened on 22 February 2022, setting the end date of 30 September 2022.

At the time of the most recent deferral, the Home Office stated an intention to give employers time to establish commercial relationships with identity service providers (IDSPs) for the purpose of completing digital checks on valid British and Irish passports (including Irish passport cards), or to put measures in place to enable ‘face to face’ document checks if they do not wish to use an IDSP.

Although employers have appreciated the convenience and low cost of not being required to review original documents for manual right to work checks, this was only ever intended by the Home Office to be temporary because using copies carries a much higher risk of document fraud.

On the other hand, employers requested a digital solution that would enable them to move away from manual checks altogether. This has not been delivered, because IDSPs cannot be used to replace all manual document checks. There has also been a delay in the providers becoming certified, with the first identity document validation technology (IDVT) products only going live at the end of July 2022. Lastly, choosing and onboarding a provider may be costly and not straightforward.

Many employers may still feel they are not ready or willing to return to fully compliant manual checks, however whether there will be representations from business that results in a further deferral appears unlikely. Employers should therefore prepare operationally for adjusted checks to end as scheduled.

Can we still check the appearance of the individual using a video call?

It will still be allowable to check the visual appearance of the person presenting for work using a live video call after the adjusted process ends. This will apply for manual checks and online checks.

The Home Office’s current guidance is silent on whether video call is acceptable for reviewing whether the appearance of the person presenting for work is consistent with the image and biographic details on the IDVT report produced following a digital check of a British or Irish passport by through an IDSP. We have however received direct policy confirmation from the Home Office that this is the case.

What do we need to do differently once adjusted checks have ended?

The key change is that for manual right to work checks, the employee of the business who is doing the check will need to have sight of the physical documents relied on.

Manual right to work document endorsements should also revert back to the standard wording, no longer mentioning COVID-19.

What should we do to prepare for the return of standard manual checks?

We would suggest the following:

• Provide staff responsible for right to work checks with refreshed training, including a reminder that since 6 April 2022, holders of biometric residence permits, biometric residence cards and frontier worker permits must have their right to work checked using the Home Office’s online system;

• Ensure that there is a process in place to handle original documents for manual right to work checks, including for receipt, review, storage and return as applicable;

• Decide whether and to what extent to use an IDSP to carry out the identity verification element of right to work checks for holders of valid British or Irish passports – see our earlier article for some of the relevant considerations;

• Determine a policy on whether the visual check of the person presenting themselves for work will be carried out in-person, via live video call or a combination, and put appropriate resources and recordkeeping in place to do this; and

• Ensure that from 1 October 2022, endorsements on copies of manually checked original documents are changed to reflect that the original document has been sighted.

We will be discussing right to work checks in the context of sponsor licence compliance in our webinar, Sponsorship of Workers in the UK, on 28 September 2022. For further information and to book, click here. If you have any specific queries about the changes, please get in touch with a member of our Immigration Team.

Related Item(s): Immigration

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

Attachment: IMM22005 UK right to work check summary

The Home Office has stated that from 1 October 2022, the adjusted manual right to work check process will end. UK employers have been able to use this since 30 March 2020 to deal with difficulties in handling original documents that arose due to the pandemic. In this article we answer some common FAQ about this development.

Text:

For further information on the adjusted process, see here. A helpful diagram summarising UK right to work checks can be viewed here.

Are adjusted checks really ending on 30 September 2022?

The Home Office originally intended to end adjusted manual checks after 16 May 2021. The end date has since been deferred four times. The most recent deferral happened on 22 February 2022, setting the end date of 30 September 2022.

At the time of the most recent deferral, the Home Office stated an intention to give employers time to establish commercial relationships with identity service providers (IDSPs) for the purpose of completing digital checks on valid British and Irish passports (including Irish passport cards), or to put measures in place to enable ‘face to face’ document checks if they do not wish to use an IDSP.

Although employers have appreciated the convenience and low cost of not being required to review original documents for manual right to work checks, this was only ever intended by the Home Office to be temporary because using copies carries a much higher risk of document fraud.

On the other hand, employers requested a digital solution that would enable them to move away from manual checks altogether. This has not been delivered, because IDSPs cannot be used to replace all manual document checks. There has also been a delay in the providers becoming certified, with the first identity document validation technology (IDVT) products only going live at the end of July 2022. Lastly, choosing and onboarding a provider may be costly and not straightforward.

Many employers may still feel they are not ready or willing to return to fully compliant manual checks, however whether there will be representations from business that results in a further deferral appears unlikely. Employers should therefore prepare operationally for adjusted checks to end as scheduled.

Can we still check the appearance of the individual using a video call?

It will still be allowable to check the visual appearance of the person presenting for work using a live video call after the adjusted process ends. This will apply for manual checks and online checks.

The Home Office’s current guidance is silent on whether video call is acceptable for reviewing whether the appearance of the person presenting for work is consistent with the image and biographic details on the IDVT report produced following a digital check of a British or Irish passport by through an IDSP. We have however received direct policy confirmation from the Home Office that this is the case.

What do we need to do differently once adjusted checks have ended?

The key change is that for manual right to work checks, the employee of the business who is doing the check will need to have sight of the physical documents relied on.

Manual right to work document endorsements should also revert back to the standard wording, no longer mentioning COVID-19.

What should we do to prepare for the return of standard manual checks?

We would suggest the following:

• Provide staff responsible for right to work checks with refreshed training, including a reminder that since 6 April 2022, holders of biometric residence permits, biometric residence cards and frontier worker permits must have their right to work checked using the Home Office’s online system;

• Ensure that there is a process in place to handle original documents for manual right to work checks, including for receipt, review, storage and return as applicable;

• Decide whether and to what extent to use an IDSP to carry out the identity verification element of right to work checks for holders of valid British or Irish passports – see our earlier article for some of the relevant considerations;

• Determine a policy on whether the visual check of the person presenting themselves for work will be carried out in-person, via live video call or a combination, and put appropriate resources and recordkeeping in place to do this; and

• Ensure that from 1 October 2022, endorsements on copies of manually checked original documents are changed to reflect that the original document has been sighted.

We will be discussing right to work checks in the context of sponsor licence compliance in our webinar, Sponsorship of Workers in the UK, on 28 September 2022. For further information and to book, click here. If you have any specific queries about the changes, please get in touch with a member of our Immigration Team.

Related Item(s): Immigration

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

Attachment: IMM22005 UK right to work check summary

On 24 August 2022 the Migration Advisory Committee (MAC) was commissioned to review the shortage occupation list (SOL) for sponsoring skilled workers. The MAC is expected to make a call for evidence to employers and other stakeholders over the coming months, with their recommendations due to be incorporated into Immigration Rules sometime from Autumn 2023.

Text:

The UK Shortage Occupation List (SOL) is the official list of the skilled occupations that the Government accepts currently face staff shortages in the UK. When employers recruit foreign nationals for a role listed on the SOL, they benefit from certain relaxations of the normal Skilled Worker visa requirements aimed at making it easier to fill those shortages.

The commissioning letter to the MAC was published on 1 September 2022 here. The MAC’s response can be found here.

What has the MAC been asked to report on?

The MAC has been asked to consider three main issues:

• The salary requirement: Currently, the salary requirement for jobs included on the SOL is the higher of either the going rate for the job, less a 20% discount, or £20,480 (subject to an absolute minimum of £10.10 per hour). The MAC has been asked to report on whether the 20% discount to the going rate should be removed. This would mean that the going rate for jobs on the SOL would be in line with those not on the SOL and the 20% reduction would only apply to the general salary threshold for sponsoring a Skilled Worker (from £25,600 to £20,480).
• The existing SOL jobs: the MAC has been asked to review all the jobs and consider whether they still fulfil the requirements to remain on the SOL. The reason given for this is that being on the SOL should only be a time-bound strategy to address labour shortages rather than having sectors permanently relying on migration, which could make labour shortages entrenched.
• Adding new jobs to the SOL: The MAC has also been asked to consider whether any other roles should now be added to the SOL. Again, this has been caveated to ensure that the MAC considers alternatives to migration first to avoid the SOL being the first port of call for employers seeking to fill labour shortages instead of investing in addressing the issues that cause the shortages in their sectors, such as lack of career progression or training opportunities for domestic workers. The MAC has been asked to specify which roles it recommends adding at Regulated Qualifications Framework (RQF) level 6 (i.e. degree level equivalent) and/or RQF levels 3-5 (i.e. A-level and above). The commissioning letter cautions against recommending roles below RQF level 3. Currently, the only role below RQF 3 on the SOL is Care workers and home carers in the Health and Care Sector; this was added due to the exceptional circumstances caused by the pandemic. The letter makes it clear that the Government will only entertain including any other role below RQF 3 if it accepts there are truly exceptional circumstances for doing so.

What are the timelines for the review?

The MAC has been asked to report back by the end of March 2023 with a view to implementing any changes in Autumn 2023. It has also been asked to base its recommendations on the more recent 2020 Standard Occupational Classification (SOC) Code system if possible, moving away from the 2010 system, which is now out of date.

The MAC has accepted the commission; however, there are currently issues with how some of the new SOC 2020 occupational codes have been applied to the datasets the MAC would use to inform its recommendations on the SOL. The MAC has suggested two alternatives:

• To commence the review now using SOC 2010; this would mean that the occupational classification data would be out of date. The MAC views this as being problematic as the labour market has changed significantly as pandemic-related restrictions have fallen away; or
• To delay the start of the review until the Office for National Statistics (ONS) has investigated the data issue that has been identified with SOC 2020 and has provided an update on its resolution. The MAC could then decide on whether to commence the commission once the issues are fully resolved, or to proceed using the SOC 2010 system. The MAC considers this alternative is preferable as it would provide the potential for more recent labour market data to be used in the review.

It seems, therefore, unlikely that the SOL review will be ready by the end of March 2023 and that any changes will be ready to be implemented in the October 2023 updates. Depending on which option is agreed on, the MAC has asked for more time but intends to report back as close to Spring 2023 as possible.

The MAC also intends to respond to the rest of the issues raised in the commissioning letter closer to the launch of their Call for Evidence.

What should employers consider in light of the review?

Employers should start considering how to engage with MAC’s Call for Evidence.

• If there are jobs that that they think should be added to the SOL, employers should start preparing the relevant evidence to show the shortage in resident labour and the need for migrant workers. The evidence should also provide details of the employer’s medium to long-term strategy to address the shortage outside of relying on the immigration system.

   

• If there are jobs already on the SOL that employers think should not be removed, they should start preparing evidence to put to the MAC to show why the need for migrant workers continues and how keeping these jobs in the SOL fits in their strategy to address the shortage outside of relying on the immigration system.

If the MAC recommends scrapping the 20% reduction of the going rate for SOL jobs and this recommendation is adopted, employers will potentially have to increase salaries to comply with 100% of the going rate for each SOL job (or the SOL salary threshold, whichever is higher). Therefore, employers should plan for the possibility of this happening in the next couple of years, depending on when the MAC recommendations are released.

We are holding our next Immigration Law Academy on 9 and 10 November 2022, which will include detailed training on the Skilled Worker route. For further information and to book, click here. If you have any specific queries about the SOL review or the Skilled Worker visa, please get in touch with a member of our Immigration Team.

Related Item(s): Immigration, Global Mobility

Author(s)/Speaker(s): Andrew Osborne, Naomi Hanrahan-Soar, Despina Stoimenidi,