UK visa processing is slowly starting to resume this month, but it is not yet business as usual. There are still many things that employers and applicants need to monitor, and potential pitfalls to avoid.

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Whilst we continue to provide updated insight throughout the COVID-19 pandemic on the immigration issues affecting businesses and the temporary guidance and concessions implemented by the Home Office during this period, this article focuses on considerations for employers and visa holders as the UK and other countries around the world begin a gradual transition out of lockdown.

The issues relating to processing remain complex and, as each country will be moving out of lockdown at a different pace depending on their own local restrictions, each application should be considered on a case-by-case basis. Please contact us for advice to discuss the details of specific cases.

1. Visa processing – applying to remain in the UK
2. Visa processing – applying from abroad
3. Sponsor compliance
4. Indefinite Leave to Remain (ILR)

1. Visa processing – applying to remain in the UK

Discretionary extension concession

For many countries, the status of the pandemic and risk to public health means that it is deemed too soon by individual governments to be able to safely resume normal service. This has continued to impact individuals in the UK on a temporary basis who have been unable to return home on account of travel restrictions and safety concerns. In light of this, the latest published guidance as updated by the Home Office on 22 May 2020 provides that discretionary extensions may now be granted until 31 July 2020 (an amendment to the previous 31 May 2020 date).

The concession is applicable to visitors and visa holders present in the UK, with a visa expiring on or before 31 July 2020, who are unable to leave the UK due to COVID-19 travel restrictions or self-isolation and were not intending to remain in the UK beyond their visa expiry. The Home Office has however confirmed to us that the extension process may be used before making an application for further leave to remain in some cases.

Anyone who already applied for and was granted a discretionary extension until 31 May 2020 will automatically have their leave extended until 31 July 2020 without the need to submit a new request. Those who were not previously eligible to apply, i.e. individuals with visas expiring in June/July 2020, may now complete an online request. As before, the request must include the reason for not being able to depart the UK and decisions should be received within approximately five working days. Despite the extension being valid until 31 July 2020, individuals are expected by the Home Office to depart the UK as soon as it is safe and possible to do so. The status of safety in the destination country and options to depart the UK should therefore continue to be monitored. There is no indication of a further extension to this concession at this stage.

Leave to remain applications

As outlined above, the discretionary extension concession is not intended for visa holders approaching visa expiry with an intention to continue residing in the UK, e.g. Tier 2 visa holders continuing in sponsored roles. In this circumstance, the appropriate action is to submit a visa extension application in the usual way before the current visa expires.

In the run up to lockdown measures being introduced in the UK, applicants with confirmed biometric appointments began to be notified of cancellations due to the closure of the UKVCAS service points across the country. Once the lockdown was in full force from 30 March 2020, applicants could no longer book an appointment. More recently, applications submitted online could only be finalised by opting for standard processing, with no fast-track services available and no option to book an appointment.

All of these applicants have been left in limbo, with both standard and fast-track applications pending but no sign of when a decision will be forthcoming. Those who have paid for fast-track processing should receive a refund if their application is processed under the standard option.

However, since 1 June 2020 UKVCAS has commenced a phased and controlled reopening of their service points. Appointments are available from 1 June 2020 onwards.

In the first instance, appointments will be offered to applicants who had their original appointments postponed due to the suspension of UKVCAS services. Affected applicants will be contacted directly with an invitation to schedule a new appointment, honouring the appointment fee already paid.

Updates on which centres have reopened can be found on the UKVCAS website. If the appointment options are unsuitable, applicants will be able to wait for their preferred service point to reopen without any adverse impact on their immigration application.

As an exception, healthcare workers requiring an appointment are asked to contact the Coronavirus Immigration Helpline directly to schedule an appointment.

All remaining applicants should complete the UKVCAS account registration after submitting their online visa application so that they can be notified directly at a later date to book their appointment.

Applicants should also ensure contact details entered on the application form are accurate as they may be contacted by a Home Office caseworker to:

• confirm the application has been received as a valid, in-time application before the current visa expiry date, that the conditions of the current visa will continue until such time as a decision can be made and that processing of the application is likely to take longer than eight weeks; and
• submit digital copies of supporting documents that have not already been self-uploaded so that these can be considered, leaving biometric enrolment as the final stage of the process as a way of minimising further delay.

In all cases, there will be no expedited application processing until the Home Office has cleared the current backlog and they are confident that they can meet the priority (five business days) and super priority (one business day) service standards.

Leave to remain – switching to a new category or new sponsor

Monitoring by sponsors will be particularly important in the case of Tier 2 and 5 visa applicants who have commenced employment with a sponsor company ahead of receiving a decision on their application, in line with the Home Office’s concession dated 14 April 2020. This concession remains in place and is especially helpful for Tier 2 General change of employment applications where an existing Tier 2 General migrant switches their sponsorship to a new employer.

Applicants are eligible under this concession only where they have been assigned a valid Certificate of Sponsorship (CoS), the online application is submitted before the current visa expiry, and the role they perform is in line with the details stated on the CoS.

As Home Office services gradually resume, decisions will be issued. In the event that an application is rejected as invalid or refused, employment may need to be terminated to comply with prevention of illegal working guidelines. If there are any changes to report, these should be recorded on file while it is not possible to submit reports on the live CoS. Sponsors are advised to contact us for advice on specific cases of this nature prior to taking action.

Switching concession

The Home Office COVID-19 guidance for applicants was also updated on 22 May 2020 in relation to individuals currently in the UK with a visa expiring on or before 31 July 2020 and who would ordinarily be required to submit their long-term UK visa application (e.g. Tier 2 General) from overseas. These individuals are exceptionally permitted to submit the application from within the UK using UK extension application forms and paying the relevant UK fee.

Whilst the Home Office has demonstrated flexibility in this situation, the process of applying within the UK has not been so straightforward. For example, it is still not clear whether the Home Office will apply entry clearance or further leave to remain Rules to those who apply under the concession. The Home Office has been asked to take a pragmatic view where there is increased scope for error.

Applicants should seek advice before submitting an application and ensure that any contact details provided as part of the application are correct and up-to-date so that any Home Office requests for further information can be received and responded to.

2. Visa processing – applying from abroad

The Visa Application Centres (VACs), operated by the Home Office’s two commercial providers VFS Global and TLS Contact, have re-opened on a phased basis from 1 June 2020 where local restrictions allow. This includes centres reopening in Australia, parts of Asia and Europe. However, where local restrictions apply, VACs will reopen on a later date to be confirmed.

The latest status updates can be found online when selecting the specific location information:

VFS Global

TLS Contact

Entry clearance applicants must ensure they can satisfy the requirements of the visa category unless a specific concession applies. Even if a VAC has resumed appointments, it may be necessary to pass an English language test, obtain a TB certificate or complete a UK NARIC assessment before submitting the application:

• English language testing – centres and locations will vary globally depending on the current public health restrictions. The relevant websites can be checked for regular updates – Pearson, IELTS and LanguageCert
• TB testing – the test centre in the relevant location should be contacted to confirm up-to-date status.
• UK NARIC – assessments continue to be completed digitally for the time being, with hard copy statements to follow once services resume.

Urgent travel to UK in compelling and compassionate circumstances

It may be possible to request a visa waiver to allow urgent entry to the UK without applying for a visa or collecting a visa that has already been granted. This is more likely an option where VAC services remain suspended and there is no other option to request a visa or obtain documents. Where VACs have reopened, there is likely to be more pushback on visa waiver requests. If there are exceptional compelling and compassionate circumstances, individuals should contact the local consulate, High Commission or British Embassy local to them to seek further assistance.

Before leaving the UK to apply from overseas

Before departing the UK to submit an application from abroad, applicants should consider their eligibility to apply from the UK in line with the Home Office’s COVID-19 switching concession. This may be an option for individuals holding a temporary UK visa for the UK which expires on or before 31 July 2020. Applications must be submitted before 31 July 2020 and the requirements of the application should still be satisfied.

If the concession does not apply and the applicant must leave the UK to submit the new visa application from abroad, they should keep up-to-date with any requirements on re-entry, such as a 14-day mandatory self-isolation. This may impact availability to attend an appointment at the visa centre.

Expiry of temporary 30-day vignettes

For applicants who were granted visas before the restrictions commenced but were unable to travel within the period of their 30-day vignette, requests can now be submitted for a replacement vignette to facilitate entry to the UK. There is no government fee for the new vignette and requests can be submitted until the end of 2020.

Requests must be submitted by email to CIH@homeoffice.gov.uk, with REPLACEMENT 30 DAY VISA in the subject line, and including the vignette holder’s name, nationality, date of birth and GWF reference number in the body of the email.

Individuals who use this process will be contacted once VACs re-open to arrange for a replacement visa with revised validity dates to be placed in their passport. The Home Office confirmed on 15 June 2020 that the new vignette will be valid for 90 days.

The requirement for a temporary 30-day vignette to be valid at the time of entry to the UK may be waived for non-visas nationals (countries who do not appear on the visa national list), especially where their BRP has already been issued and evidence of this can be provided on entry to the UK. Please contact us for further advice on this option.

Before travelling to the UK

Aside from having the relevant UK visa in hand in order to travel to the UK, travellers must also check for any requirements to complete with local authorities. For example, Australian citizens and permanent residents must be granted an exemption before they can travel overseas. There is also a similar email process for South African nationals.

Since 8 June 2020, most international travellers to the UK must complete a Public Health Passenger Locator form within 48 hours of arriving in the UK. They must also complete a 14-day self-isolation period upon entry. For further details of these arrangements, see our main guide.

3. Sponsor compliance

As services begin to resume in the UK and it may be possible for some employees to return to work, sponsors will need to consider any notifications to be made to the Home Office via the SMS to ensure they are compliant with sponsor duties.

Right to work checks (RTW)

While social distancing measures have been in place, many employers will have made use of the RTW check options in line with the Home Office’s existing guidance, e.g. an online RTW check via video link for BRP holders. In cases where a fully compliant check has not been possible, the Home Office’s adjusted RTW guidance published on 30 March 2020 has assisted employers in maintaining compliance with their sponsor duties by allowing temporary checks using scanned copy documents.

As employers focus on a safe return to work for their employees, those who completed adjusted RTW checks will need to remember to carry out a further retrospective check in order to be fully compliant. The deadline for completion of the retrospective check is within eight weeks of the end of the adjusted procedure. This end date is to be announced by the Home Office and we will provide an update as and when this is confirmed. In the interim, employers should continue to retain a log of all RTW checks using the adjusted procedure so they can be completed in full later on. They may consider carrying out a compliant right to work check at the earliest point at which this becomes feasible, in order to reduce the number of checks to do immediately before the deadline.

Follow-up checks will also be required where Tier 2 and 5 applicants have commenced work before receiving a decision on their application in line with the Home Office concession of 14 April 2020. As an interim measure, employers should contact the Employer Checking Service to request a Positive Verification Notice to confirm a valid pending application. Once a decision on the application has ben received, employers should perform a valid RTW. If the application is refused, employers will be required to terminate employment to comply with prevention of illegal working guidance.

Sponsor employers are recommended to closely monitor progress for any sponsored workers awaiting a decision on their applications and retain any relevant evidence on file. Where follow-up right to work checks are due, a request for a Positive Verification Notice to the Home Office Employer Checking Service may be required in these circumstances. The need for this service will likely increase where processing times are prolonged and could take the applicant beyond the expiry date of their existing visa. 

Sponsor reporting requirements

For sponsored employees placed on furlough or affected by a temporary reduction in hours/salary, each change in their conditions will require further reporting on the SMS. Once any temporary measures have ended, a report should be made to confirm that hours and pay have returned to at least the same level as stated on the assigned CoS at the point of sponsorship.

With many businesses adapting to remote working, a future return to work may be more flexible, including remote working becoming the norm, both within the UK and from overseas. Although the Home Office has indicated in their guidance that remote working at a home address during the COVID-19 pandemic would not require reporting as it would be considered a temporary change to the work location, this will not continue to apply once offices have reopened. If remote working continues at this point, any alternative work location must be reported.

For new hires who have been delayed in entering the UK and impacted by expired temporary visa vignettes, sponsors will need to consider the timing of new vignette requests and subsequent reporting on the COS of any delayed work start date.

Where employees have commenced work on the basis of an assigned CoS, before receiving a decision on their application (see above – Leave to remain – switching to a new category or new sponsor), sponsors should maintain up-to-date files including records of any changes to the employee’s role and all other reportable changes. Until the application has been processed, it will not be possible to report these in the usual way.

International travel for employees

Although international travel from the UK should currently be avoided unless essential, some businesses will need to continue to rely on employees being able to travel as part of their role.

Before planning international business travel, sponsors should consider checking the health and safety status of the relevant country including transit countries, and any requirements on entry to self-isolate which could lead to longer absences from the UK. Employers should also ensure employees are not in a higher risk category with existing health conditions and that employees are aware of any requirements and restrictions in the country they are visiting such as social distancing and mandatory wearing of masks. As the status in each country has been seen to change quickly and without notice, sponsors should be mindful of any trips planned close to visa expiry dates where a delay in return could impact the possibility of visa extension and potentially trigger a cooling-off period for Tier 2 sponsored workers.

Sponsored employees should record all absences from the UK (date, country and purpose of visit) and, where the trip has been longer than anticipated due to COVID-19 travel restrictions, ensure this is recorded on file together with supporting evidence where possible. This may become relevant down the line in relation to an application for Indefinite Leave to Remain.

4. Indefinite Leave to Remain (ILR)

Applicants eligible to apply for ILR can continue to complete online submission but are required to satisfy all of the requirements in the usual way, including in some cases having to demonstrate passing an English language test or passing the Life in the UK test before their application can be approved. This has proven difficult with test centres closing at short notice in March 2020. However, there are signs of movement, with English language and Life in the UK tests resuming again this month.

Trinity College London has recommenced testing from 8 June onwards. Tests run by the British Council and LanguageCert are due to become available over the course of June.

Life in the UK tests are being reintroduced in a phased way, with bookings being taken for tests at a selection of centres from 1 June 2020 onwards. With limited availability and a queue of applicants waiting to book their tests, test dates are now booked up weeks ahead. Full details can be viewed when completing test bookings.

Applicants who are ready to submit their ILR application should note there is at present no fast track service available, so applications can be submitted using standard processing only. This means the processing time will be up to six months and applicants are not permitted to travel outside the UK until a decision on the application has been made. In time, UKVI will announce when they are able to resume priority and super priority processing.

The Home Office is taking steps to minimise processing times by contacting applicants and requesting supporting documents by return. Applicants should ensure the details provided to the Home Office are accurate and that emails are monitored to be able to respond to any Home Office requests for information.

As the course of the COVID-19 pandemic remains fluid, so does its impact on UK immigration. We will continue to provide updates as further details emerge. If you need help with any of the immigration issues arising from the pandemic, please contact a member of the immigration team.

Related Item(s): Immigration & Global Mobility, Covid 19 – Coronavirus, Immigration, Employer & employee relations

Author(s)/Speaker(s): Andrew Osborne, Priya Gandhi,

New rules require most international travellers arriving in the UK from 8 June 2020 to self-isolate for 14 days. There is an exemption for cross-border workers, however how this works in practice is not straight-forward.

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The cross-border worker exemption is one of many. It applies to people who are either employed or self-employed in the UK and live in another country to which they usually return at least once a week, or are employed or self-employed in another country and live in the UK, usually returning here at least once a week. They are still required to complete a Public Health Passenger Locator Form within 48 hours of their arrival in the UK, but do not need to self-isolate.

However, the first complication is that the exemption does not apply to those whose entry point to the UK in Scotland. This is because there are four different sets of regulations governing the quarantine scheme, and whilst the regulations for England, Wales and Northern Ireland exempt cross-border workers, the regulations for Scotland do not.

In practice, what this means is that for the time-being, cross-border workers who either live or work in Scotland and spend less than 14 days in Scotland on each trip will be required to self-isolate for the entire time they are in Scotland.

Secondly, the information published on GOV.UK for exempt persons is more restrictive than the regulations when it comes to cross-border workers, stating that cross-border workers must provide evidence they travel between the UK and the other country on a minimum of a weekly basis, for example by holding a season ticket.

Because of the COVID-19 pandemic, many cross-border workers have needed to change their travel patterns, so may not be able to show that they currently travel between countries at least weekly. Contrary to what the information on GOV.UK suggests, they will still fall within the exemption if they can show that they usually travel weekly, which for some people may mean providing evidence that they routinely did this before around the beginning of March this year.

In order to figure out whether the exemption applies, it will be necessary to assess the person’s circumstances and put together evidence that shows they are a cross-border worker. That evidence will vary from person to person, but is likely to include documents relating to their accommodation in the UK and abroad, as well as their employment or self-employment and their travel between the UK and the other country where they live or work.

Eligibility will also have to be re-confirmed periodically. This is because the quarantine arrangements are being reviewed on a three-weekly basis (with the next review due by 29 June 2020) and what constitutes the person’s usual pattern of travel may shift over time.

The situation for cross-border workers is only one example of the complexities of the regulations, particularly as regards presence in Scotland. If you need assistance with interpreting the quarantine measures and how they may affect you or your staff, please do get in touch with a member of the Immigration Team.

Related Item(s): Covid 19 – Coronavirus, Employer & employee relations, Immigration

Author(s)/Speaker(s): Andrew Osborne, Kathryn Denyer,

We recently conducted an employer survey which revealed that only 10% of respondents had made reports on sponsored workers’ conditions changing as a result of the COVID-19 pandemic.

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Although working from home has been excused from reporting duties, the survey response could indicate that some businesses may not yet have considered their sponsor reporting obligations when reducing salaries or changing roles for sponsored workers to address business needs during this time. This is understandable given the overwhelming nature of the situation, but reporting is a very important action to take if required. Alternatively, it may indicate that workers who are sponsored under Tier 2 tend to be highly valued by companies and integral to the business and therefore less likely to be furloughed or otherwise affected by salary reductions, even temporarily.  

Most employers who responded to the survey (65%) have used remote right to work checks since the lockdown began. It is likely this figure will increase as home working continues for many, with 1 in 5 respondents predicting they won’t open office until September or later. _{[C110][C111][C112][C113]} Please see our guidance for these checks in this article.

41% of employers have deferred or cancelled international assignments. Although flight restrictions remain a concern, certain visa application centres are now starting to re-open. This hopefully marks the beginning of visa processing interruptions easing. It is likely that interruptions will continue in some places, for example if future waves Covid-19 cases result in lockdown periods that force visa application centres to close again. However, the Home Office is doing what it can to avoid backlogs until normal service can resume.

Only 2% of respondents have used the exceptional in-country switch scheme, potentially missing an opportunity to do so.  

Finally, only 2% have notified the Home Office of corporate changes eg a change of Authorising Officer or corporate ownership. This figure is potentially indicating that some such notifications are being missed. It is likely that the figure will increase as more senior HR Directors move and need to pass on the role of Authorising Officer, and more companies go through ownership changes as a reflection of the volatile economic times.   

As we move forward to a time where many employers are being forced to consider making redundancies as well as permanent changes to workers’ salaries, working hours and other terms of employment, it is very important to remember that this too needs to be reported for any sponsored workers. Sponsors should also be aware that the Immigration Skills Charge must be full borne by them, despite it being acceptable for many of the fees associated with Tier 2 applications to be made subject to a clawback clause. 

If you have any questions about your sponsored workers, please contact us.  

 

Related Item(s): Immigration & Global Mobility, Covid 19 – Coronavirus, Employer & employee relations, Immigration, Immigration Solutions for HR, Tier 2 Sponsorship

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

Our fourth employer benchmarking survey looks at how employers are approaching the potential reopening of their offices as they begin to assess some of the longer-term implications of the Covid-19 pandemic.

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This is the fourth in our series of employer benchmarking surveys looking at how employers are responding to the Coronavirus pandemic. It was carried out between 27 May to 2 June and involved 70 HR leaders and in-house counsel in a cross-section of businesses collectively employing over 200,000 employees.

What did we learn overall?

It seems that employers are generally taking their time to assess the risks and consult with their employees before reopening offices. Two thirds of our survey respondents had not yet completed their Covid-19 risk assessments when the survey closed on 2 June, and only 16% said they predicted reopening offices by the end of June.

Despite mixed views about how employee productivity has been affected by the pandemic, more than half of our survey respondents say this has either remained the same or improved for employees who are now working from home. This is particularly interesting considering how many employees have been trying to juggle caring responsibilities or cope with an unsuitable homeworking set-up. It tends to confirm that employees have flexed in various ways to adapt.

Unsurprisingly, increased working-from-home arrangements and more flexibility come out top of the list of Covid-19 adaptations that employers might want to keep in the longer term. However, those employers that have already surveyed their staff to ask for their views about returning to work have not necessarily received similar responses. In some organisations, most employees want to continue working from home, but in others the majority are keen to get back to the office.

Potentially related to this, around a quarter (27%) of employers said they had seen a significant increase in mental health problems for employees working from home (more than double the percentage who reported a significant increase in physical health problems). This may indicate that mental health issues manifest themselves more quickly than physical problems, but it begs the question of whether the effort to maintain productivity may be coming at a cost to employee wellbeing.

Use of public transport is clearly a major concern for employees, with our survey respondents planning an impressive range of measures to support those who would ordinarily travel to work in this way. Alongside adjusting working hours, over one in four of survey respondents (27%) are providing or funding bicycles for employees (although only 3% are increasing showering facilities, suggesting that the new normal could be sweatier than the past). For the time being almost as many employers are banning the use of public transport to work out of health concerns (8%) as are mandating it (9%).

Looking ahead, more than a third of our survey respondents expected there to be a gap between the end of the furlough scheme in October and their ability to return to normal. Half of them predicted redundancies as one of the measures they expect to be needed to deal with this gap, which suggests that the government might be ending the furlough scheme too early. That said, many of our survey respondents have not used the furlough scheme and the majority reported no expected gap.

Some of the key results in more detail

• 32% of our survey respondents had already completed their Covid-19 risk assessments, while 64% were actively working on them. Only one employer had published the results on its external website by the time they answered our survey.
• 17% of employers who responded to our question about Personal Protective Equipment (PPE) in office environments will be asking employees to use face coverings while 17% are supplying additional PPE, for example where social distancing cannot be maintained.
• Two thirds (66%) of our survey participants are consulting employees directly over their plans to control workplace risks. Only 11% are consulting existing employee or union representatives, with the same number (11%) consulting health and safety representatives elected especially for this purpose.
• Opinion is divided about temperature checks on staff. 28% are planning to carry them out or are already doing so (for example, using non-touch thermometers). 34% are not doing or planning to do this, while the largest proportion of survey participants (38%) were undecided.
• 40% of those responding predicted reopening their office(s) in July or August. One in five (20%) do not predict reopening until September or later, with a couple of employers commenting that they did not plan to reopen until January 2021.
• Most employers (52%) have carried out surveys of employee views on returning to work, which have revealed stark differences in employee sentiment between different workforces. Some employers have a majority of staff eager to come back, whereas others have a majority wanting to carry on working from home.
• On the difficult issue of data suggesting that BAME people are at greater risk, most employers (69%) were unsure or undecided about whether to make any extra adjustments for BAME employees. Just 3% said they were proactively planning to make extra allowances for this group (an approach with significant legal minefields). 26% said they were not planning on doing so, but with many commenting that attending the office would be voluntary in any case.
• 61% are not planning to require employees who use public transport to return to work or are prohibiting them from doing so, for example because of the risks to other employees.
• Employers are taking various measures to support public-transport users, the most popular being adjusting start and finish times (81%) and changing/reducing hours of work (58%). Supporting cycling seems more popular than supporting driving, with 29% of employers increasing bike storage and 27% providing or funding bikes, but only 15% providing or funding additional car parking. Only 3% are increasing showering facilities, however.
• Over a quarter (27%) of employers said that they had seen a significant increase in mental health problems for employees who have been able to work from home. In contrast, 11% said they had seen a significant increase in physical health problems for this group.
• There were mixed views about the effect of homeworking on employee productivity, with more than half of respondents (53%) saying it had either remained the same or improved following the shift to remote working. However, 24% said productivity was a little down or significantly down.
• More than a third (36%) of those responding to our survey expected there to be a gap between the end of the furlough scheme in October and their ability to return to normal, with half predicting redundancies as one of the measures they expect to be needed to deal with this gap.
• Covid-19 has impacted the immigration landscape, with more than 60% of respondents having to implement remote right to work checks and 40% cancelling or deferring international assignments. Interestingly, only 10% of survey respondents had made reports for sponsored workers about salary or hours changes. This could indicate that sponsored workers have been largely unaffected, or that employers may not yet have got to grips with the issues that should be reported for sponsor licence compliance purposes.

The full results of the survey, including answers to some additional questions, are shared only with those who participated.

For an infographic summarising the key conclusions, click on the image below.

Related Item(s): Employment, Covid 19 – Coronavirus, Employer & employee relations, Health & Safety and reintegration, Re-opening workplaces

Author(s)/Speaker(s): James Davies, Gemma Taylor,

When businesses run into financial difficulties and need to reduce costs, the knee-jerk reaction is often to consider the scope for job cuts.

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Introduction

But redundancies are not a cheap option and , if mistakes are made in the way redundancies are handled, further costs may be incurred on account of tribunal claims. Other drawbacks include the loss of valuable skills and experience and the negative impact on the morale of the staff that are retained.

Employers should therefore think creatively and look at other alternatives that may better suit the needs of their business. This Inbrief summarises some of the options and examines how to avoid falling foul of the legal procedures and obligations that might come into play.

The content includes:

• Changing terms and conditions

• Pension scheme changes

• Lay-off and short-time working

• Redeployment, secondment and sabbaticals

• Recruitment freezes

• Flexible working

Changing terms and conditions

Perhaps the most obvious way to reduce business costs without resorting to dismissals is to adjust employees’ contractual entitlements — for example, an across-the-board pay cut.

The legal starting point is that employees’ pay, benefits and working hours will most likely be express terms of the contract of employment. Even where terms of this nature are not expressly set out in writing, they may be implied into the contract by ‘custom and practice’. In addition, terms may sometimes be incorporated into individual contracts from sources such as company policies or work rules.

Any significant change to working arrangements is therefore likely to require the variation of employees’ contracts of employment. Depending on the circumstances, even a pay freeze, for example, or a restriction of overtime working might entail changes to contractual terms and conditions.

Changing terms and conditions is fraught with legal dangers and employers should proceed carefully and generally take legal advice before embarking on such a course. In outline, these are the main options:

• changes allowed by the contract

• variation by mutual agreement

• unilateral imposition of new terms

• terminating employees’ contracts and re-engaging them on new terms

Changes permitted by contract

The best scenario for the employer is that the change it is proposing is authorised by the contract of employment. This can arise in different ways. The contractual term in question may, for example, be drafted sufficiently broadly to accommodate the change.

Alternatively, the contract may include a ‘flexibility clause’ – an express right for the employer to implement changes. This could either be a specific clause covering the proposed change or a general power for the employer to vary the terms of the contract.

The presence of a flexibility clause does not necessarily mean the employer can proceed with impunity. Clauses of this type are interpreted restrictively by courts and tribunals and any ambiguity will be resolved against the employer.

In addition, the way in which a flexibility clause can be operated may be restricted by general implied terms of the employment contract – in particular, the implied duty of mutual trust and confidence. This may, for example, require the employer to give staff reasonable notice of any changes.

In organisations that are unionised, changes to terms and conditions are usually negotiated with the relevant trade union. This is another situation in which the changes are likely to be permitted by individual employment contracts, because there is normally a clause catering for collectively agreed changes to be automatically incorporated into the contract. Nonetheless, the union will generally obtain employees’ agreement before accepting the employer’s proposed changes.

Variation by agreement

Where the employer has no right to impose unilateral changes, clearly the best route is to obtain employees’ consent. Faced with the option of agreeing detrimental changes or potentially being made redundant, many employees are likely to be amenable albeit reluctantly.

Full and effective communication and consultation, so that employees fully understand the business needs behind difficult decisions, is a crucial factor in securing agreement. This can be done via staff briefings and meetings but it is best also to offer individual consultation on a one-to-one basis.

It is essential to obtain employees’ individual written agreement to changes, in order to avoid future disputes.

Unilaterally imposing changes

What should an employer do in respect of employees who, following consultation, still refuse to agree to the change required? One option is simply to announce that the change will be implemented from a set date.

This is a risky strategy from a legal perspective. Imposing the change as a fait accompli will amount to a breach of contract by the employer. This runs the risk that employees may:

• continue to work in accordance with the changed terms, but under protest — reserving the right to sue for breach of contract and/or bring a claim for unlawful deduction from wages

• resign and claim constructive dismissal

• refuse point-blank to accept the new terms

In the third scenario the employer would have little option but to dismiss, potentially giving rise to tribunal claims for unfair dismissal from employees who have at least the two years’ service.

The best outcome for employers adopting this type of approach is that employees would simply acquiesce in the new working arrangements and go along with them. After a period of time, the legal position would be that such employees had impliedly agreed to the variation by their conduct.

Dismissal and re-engagement

Generally speaking, a better way to proceed where employees’ agreement to contractual changes is not forthcoming is to terminate their existing employment contracts – giving the required statutory or contractual notice – and offer to re-engage them on new contracts containing the revised terms.

This may seem like a ‘nuclear option’, but it at least avoids the risk of employees suing for breach of contract. Because the employment contract is lawfully terminated with notice, the employer is not in breach.

Employees with at least two years’ service will, of course, be entitled to claim unfair dismissal. However, the employer can defend such claims by showing it had a ‘substantial reason’ for dismissal – namely, its pressing business need to introduce the changes in question. The employer would argue that it adopted a fair procedure by consulting fully over its proposals and acted reasonably in the circumstances.

Importantly, the employer’s legal duty to consult collectively may be triggered in these circumstances. A proposal to dismiss and rehire in the context of changes to terms and conditions counts as ‘redundancy’ for collective consultation purposes. Accordingly, if 20 or more employees will be dismissed within a 90-day period, the employer must consult with the recognised trade union if there is one, or elected employee representatives otherwise. (See our Inbrief Collective redundancies.)

Pension scheme changes

Another option for employers that may appear attractive is to change its pension arrangements.

Employers should bear in mind that most changes will require them to consult with employee representatives, under special consultation requirements applying to pension schemes (although some smaller schemes are exempted).process is broadly similar to the collective redundancy consultation process, but the obligation to consult is not restricted to changes affecting a particular number of employees. The consultation period must last at least 60 days.

Lay-off and short-time working

Employers looking for alternatives to declaring redundancies may consider laying staff off temporarily or reducing their working week. A lay-off is generally understood to mean an employer providing employees with no work – nor pay – for a week or more. Short-time working occurs when an employee works only part of a week and receives proportionately reduced pay.

If the employer has no contractual authority to impose a lay-off or short-time working, the considerations in relation to changing terms and conditions described above will apply. In particular, unless employees’ express and informed consent is obtained, the employer will potentially face claims for unlawful deduction from wages, breach of contract and constructive dismissal.

There is specific legislation governing temporary lay-offs and short-time working, but it is complex and little-used in practice. It provides a right for employees who have been laid off or kept on short time for four or more consecutive weeks or six weeks in any 13-week period to claim a redundancy payment in certain circumstances. The scheme only applies where the contract of employment allows for lay-off/short-time working without pay.

Finally, there is a very modest statutory wage protection scheme for employees who are laid off without pay. They can claim a ‘guarantee payment’ for days on which they would normally be required to work, but the maximum is only £29.00 per day and entitlement is limited to five days in any three-month period.

Reducing use of contract workers

Dispensing with the services of casual workers, agency staff and self-employed consultants may be a relatively low-risk way to reduce employment costs without making ‘permanent’ staff redundant. The employment status of such individuals should, however, be carefully assessed in case they legally qualify as ‘employees’ with statutory rights such as statutory redundancy pay and unfair dismissal.

Employers should also be careful when terminating part-time or fixed-term staff. They are protected from less favourable treatment in comparison to (respectively) full-time and permanent colleagues, unless it can be objectively justified by the employer.

Discretionary benefits

Employment contracts often describe bonuses and other benefits as being non-contractual or ‘discretionary’, implying that the employer is entitled to withhold or reduce them. Such contractual provisions do not, however, give the employer carte blanche or mean they are immune from legal challenge.

For example, an employer should be in a position to demonstrate that it has not exercised a contractual discretion arbitrarily or irrationally. Alternatively, employees may be able to argue that they have a legitimate expectation of a bonus or other benefit as a result of custom and practice, giving rise to an implied contractual right.

Redeployment, secondment and sabbaticals

A good way of retaining key skills and avoiding redundancies is to redeploy affected staff elsewhere within the organisation wherever possible, or alternatively arrange for them to be seconded to other companies.  Once again, this will need to be done with the employee’s consent in the absence of an express right to redeploy or second in the contract of employment.

A sabbatical, or career-break, is not a legal concept, but simply time away from work. Many employers operate discretionary schemes, which can be paid, part-paid or unpaid. Staff who can afford time off work and who are perhaps seeking an opportunity to change their lifestyle are offered an extended period of leave, with the promise of a job on their return. Continuity of employment is generally preserved during a sabbatical, for both statutory and contractual purposes.

It would be unusual for a sabbatical or career-break policy to provide for the employer unilaterally to enforce their use, as this would effectively amount to a right to lay off without pay (see above).

Recruitment freezes

A freeze on recruitment is an obvious and straightforward way of reducing overheads without fear of legal consequences, especially in industries with high rates of staff turnover.

Recruitment deferrals may be another option, although employers need to proceed with caution if they already have committed themselves to a particular start date.

Flexible working

Introducing part-time working or job-sharing can sometimes be a feasible way of reducing costs. The incentive of improved work-life balance may mean some employees would welcome the opportunity to enter into such arrangements. If so, the employer should seek their consent and the details of the new working regime should be clearly set out in writing.

Another cost-saving option may be to encourage employees to work flexibly or remotely, for example at home. Similar issues arise here as in relation to other changes to terms and conditions (see above). Where employees’ consent is not forthcoming, the employer can seek to rely on any flexibility clauses in the contract or consider terminating and re-engaging on new terms as a final resort.

Practical issues to consider include: monitoring and recording core hours; access to IT systems and equipment; and health and safety.

Immigration issues

Where employers are considering redundancies, or alternatives such as lay-offs or salary reductions), they should assess whether this has any effect on the immigration status of any of the employees affected. Any of them who holds a Tier 2 or 5 visa will have reporting requirements that are likely to be triggered, which may then have knock-on implications for whether they can keep their visa or not. Lewis Silkin’s dedicated immigration team can assist you in navigating this part of the process.

Type: Inbrief

Related Item(s): Employment

Author(s)/Speaker(s): Russell Brimelow,

Attachment: Reducing business costs – alternatives to redundancy_

In this article for HR Magazine, Naomi Hanrahan-Soar comments on how the government’s immigration bill can be seen as hypocritical for its proposal to end ‘unskilled’ immigration in December, ignoring the fact that many low-earning key workers are EU nationals.

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Click here to read the article.

Type: Press

Related Item(s): Immigration & Global Mobility, Tier 2 Sponsorship, Covid 19 – Coronavirus

Contributor(s): Naomi Hanrahan-Soar

A general tightening of the requirements and restrictions of the sole representative category will be brought into effect from 6 June 2020.

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It’s a shame to bring in any changes to the sole representative visa. It is one of the ‘old-school’ categories that functions well and has been around since before 2008 when the Points-Based System was introduced.

This route works so well because the principal requirements are fairly simple and not too prescriptive. In essence, it is designed for bringing in a senior employee of an overseas business so that they can set up a branch or wholly owned subsidiary in the UK. The sole representative can’t be a majority shareholder in the overseas business, the business cannot already have an active branch, subsidiary or representative in the UK and the headquarters must remain outside the UK.

The new restrictions are aimed at addressing potential abuse of this route. On the face of it, they are still in the spirit of the existing requirements. But they do add more complexity, more restrictions and requirements.

One of the more significant changes is the introduction of a restriction that a person who has a majority stake in, or who otherwise owns or controls the overseas business cannot enter as the partner of a sole representative who is representing the business they own. By introducing this restriction, the Home Office intends to stop entrepreneurs from in effect relocating their business to the UK. It is also likely that more generally, the Home Office also wishes to ensure the sole representative route is not used as a loophole category to avoid the much more stringent requirements of the Start-up and Innovator categories.

Other additions require that the sole representative must genuinely intend to set up the UK entity of the business and not be using the visa to facilitate entry to the UK; that the overseas business is already active and trading and that the sole representative has the skills, experience and knowledge to represent the overseas business in the UK. These were all in the previous Rules in spirit or in the associated guidance.

In sum total, these changes will likely just make applications a little harder, with more requirements to evidence and more ways the caseworker can refuse applicants based on their own assessment of capability and genuineness. For instance, the old entrepreneur route had particular difficulties due to the Home Office assessing whether a business plan was realistic or not. It may not work well to have civil servants assessing whether the individual has the skills, experience and knowledge to take on the set-up of the UK business. It remains to be seen how heavily genuineness will come to be relied upon as a refusal reason, but applicants should be aware that this element of their application will be scrutinised both in terms of the supporting documents submitted with the application, and at interview if one is requested.

This is still a really useful route to the UK for the right applicant and the right business. If you think that this category could be relevant to you, do get in touch.

Related Item(s): Immigration & Global Mobility

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

On 1 May the Home Office published an expanded list of COVID-19 frontline workers’ occupations entitling them and their family members to a free and automatic one-year extension of leave. However, the measures announced to-date just serve to highlight that considerably more needs to be done.

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The extension is available to people working both in the NHS and in the independent sector and only applies where the existing leave of the worker and any relevant family members is due to expire on or before 30 September 2020. It is intended to allow them to focus on saving lives during the crisis.

Employers should be aware that employees with leave expiring on or before 30 September 2020 may be eligible under these arrangements, either directly, or as a family member.

The list is reproduced below:

• biochemist
• biological scientist
• dental practitioner
• health professional
• medical practitioner
• medical radiographer
• midwife
• nurse
• occupational therapist
• ophthalmologist
• paramedic
• pharmacist
• physiotherapist
• podiatrist
• psychologist
• social worker
• speech and language therapist
• therapy professional

Employers should also be alert to the possibility that where a worker in one of these occupations dies due to COVID-19, their family members may be eligible for a free and immediate grant of indefinite leave to remain. This provision was confirmed in a letter the Home Secretary to the Home Affairs Committee and has not been published on GOV.UK, so it is not currently clear whether it is still limited to NHS doctors, nurses and paramedics, or if it now includes the family members of people covered by the expanded list.

The Home Office has been contacting NHS trusts and employers in the independent sector to compile a list of workers who are eligible for the extension, however there is still a risk that some workers may not be identified before they proceed to submit a paid-for application. Where this occurs, the applicant can email UK Visa and Immigration’s NHS team at UKVINHSTeam@homeoffice.gov.uk to ask to withdraw their application and to be provided with a refund, but only if they have not already submitted their biometrics as part of the application process. The onus is therefore squarely on employers and individuals to access the provisions.

Controversially, other frontline health and social care workers, and in particular care workers and home carers have been excluded from the arrangements, despite being shown to have a significantly higher risk of dying from COVID-19. The Home Affairs Committee has raised concerns with the Home Office about this situation, as well as the exclusion of NHS cleaners, porters and other non-medical support staff. It remains to be seen whether the Home Office will agree to extend the provisions further in response.

The COVID-19 pandemic has also placed a spotlight on the fact that the Immigration Health Surcharge (IHS) acts as a form of double-taxation on most migrants who hold temporary leave for longer than six months, including those who work for the NHS. As we previously outlined in this article, the Home Office plans to increase the IHS from 1 October. Although the workers who are eligible for the automatic extension will not pay the IHS at all, their colleagues whose leave expires on or after 1 October 2020 will have to pay it in full, and at the increased rate.

So far, the Home Office has failed to respond to calls to review its stance on the IHS and other immigration-related fees. Possibly this is because research shows that where the cost of visas increase, there is relatively little decrease in the demand for them.

Furthermore, the Home Office’s focus at the second reading of the Immigration Bill this week on a ‘high wage, high skill productive economy’ under the post-Brexit migration from 1 January 2020, and the very modest benefits of its proposed NHS visa indicates that it has not yet gotten to grips with the implications of the pandemic and the ending of free movement for the UK’s current and future immigration needs. At the very least, the Home Office should look again at what measures are likely to attract and retain vital healthcare workers such as expanding the scope of the occupations and employers covered and offering accelerated or immediate settlement, recognising that the global need for their skills has significantly changed since the NHS visa was initially devised.

More generally, the public’s perception of which workers are essential in the UK has now shifted away from the highly skilled and highly paid and towards areas where there are labour shortages or where the UK cannot afford to lose migrant workers. This will put pressure on the Home Office to design and continuously review immigration routes that address labour gaps across all skill levels, including across the health and social care system, in agriculture and the supply of other food and consumer goods, as well in information technology and telecommunications.

The pandemic should also prompt the Home Office to pay greater attention to the cost of its policies to migrants in terms of their financial stability, productivity, sense of security and mental well-being, rather than justifying them based on the benefits of being allowed to live in the UK.

Employers and other stakeholders will have a crucial role to play in providing their insights and recommendations on the design of the UK’s immigration system. This will be the case in the lead-up to the end of this year, as well as once the new system has been introduced. In engaging with the Home Office, other Government Departments and the Migration Advisory Committee, they should not be afraid to seek to move the conversation beyond historic labour shortages and highly skilled occupations, and towards building an immigration system that is truly fit for purpose.

If you have any queries or comments about any of the topics discussed in this article, please get in touch with a member of the immigration team.

Related Item(s): Immigration & Global Mobility, Covid 19 – Coronavirus, Immigration

Author(s)/Speaker(s): Kathryn Denyer,

Employers have until 24 June 2020 to provide their views on what occupations should be on the shortage occupation lists for UK sponsored skilled migration from 1 January 2021.

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On 13 May the Migration Advisory Committee (MAC) published a call for evidence inviting employers to complete an online form outlining details of what occupations they have difficulty recruiting for and why. In light of the pressures on businesses brought about by the COVID-19 outbreak, the MAC would also like to hear from employers who are unable to respond before the deadline, but can provide details for future research, as well as those who have limited ability to respond but can provide their contact details and some evidence before the deadline.

The MAC’s review is intended to focus mainly on medium-skilled roles at levels 3 to 5 of the Recognised Qualifications Framework (RQF), as these will be eligible for sponsorship under the new system. Roles at RQF 6 or above that appear on the current shortage occupation lists will remain recognised as still being in shortage for the time-being.

Employers should however note that the focus on RQF levels 3 to 5 does not prevent them from submitting evidence relating to lower-skilled roles at RQF levels 1 to 2, or on roles at level 6 or above where they feel there is strong new evidence that these should be included.

A significant limitation of the research is that most of the questions ask for responses to be provided with reference to a recent 12-month period where the employer was operating under normal trading conditions. It therefore does not seek to capture the shortages employers anticipate will appear due to the ending of free movement arrangements from 1 January 2021, or their predictions of what shortages they feel have been created and are likely to remain due to the COVID-19 pandemic.

There is however a general question asking for comments about the occupations in respondents’ organisations and the shortage occupation list. This question can be used by employers to provide details of what occupations they feel are currently in shortage or are highly likely to be in shortage in the future, and the reasons why.

The MAC will incorporate an analysis of the responses received to its call to evidence in the report it is due to deliver to the Government by the end of September 2020.

We will be covering the new system in more detail at our next half-day Immigration Law Academy on 8 & 9 June 2020, if you would like to find out more about what this means for your business. We also offer a range of services to support your business with its immigration needs through our Immigration Solutions for HR. 

If you have any queries about contributing to the call for evidence, please get in touch with a member of the immigration team.

Related Item(s): Immigration & Global Mobility, Immigration Law Academy, Immigration Solutions for HR

Author(s)/Speaker(s): Andrew Osborne, Joanna Hunt,

The Brexit transition period will end on 31 December 2020. EEA nationals and their family members who are resident in the UK before that date have until 30 June 2021 to apply to the EU Settlement Scheme (“EUSS”). In doing so, they will obtain either “settled” or “pre-settled” status.

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Employers may feel they are in difficult territory seeking to ensure they implement their prevention of illegal working duties correctly without breaching discrimination laws, while also offering help and support to their EEA national employees.

We have recently had confirmation from the Home Office on two points about EEA nationals and their family members:

• The government guidance – which states that employers “should not check that an employee has applied” to the EUSS – does not mean that employers cannot ask whether an employee has applied. The Home Office has clarified that the reason behind this wording is to minimise the risk of discrimination against a person who is eligible, but has not yet applied under EUSS. This is why the Home Office uses the word “check”, rather than “enquire” or “ask”. The Home Office has said that there is nothing to stop employers asking individuals whether they have applied to the Scheme. However, it is important that this does not lead to any form of discrimination against that individual.
• EEA nationals and their family members who are currently working in the UK, regardless of whether they have pre-settled or settled status (or no status under EUSS), are “settled workers” for the purposes of the Immigration Rules until the end of the transition period. And after the transition period ends, individuals with “pre-settled” status under EUSS will be “settled workers” for the purposes of the Immigration Rules – meaning Europeans with pre-settled status will have very similar rights after the end of the transition period as they had before it.

The offer of support to employees affected by the scheme has been gratefully received in our experience. This clarification highlights the consideration required to ensure that it hits the right note between the competing legal demands and desire to help.

We are happy to help with all aspects of Brexit-related strategic immigration advice, including applications under EUSS and how to prepare for the new immigration landscape. We can also assist with how to navigate tricky areas, including dealing with potential discrimination issues arising during the recruitment process and in the course of employment.

Related Item(s): Immigration & Global Mobility, Employment, Immigration, Employer & employee relations, Covid 19 – Coronavirus

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