HIRING,EMPLOYING & DISMISSING MIGRANT WORKERS - THE ESSENTIALS FOR UK HR

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1 HIRING,EMPLOYING & DISMISSING MIGRANT WORKERS - THE ESSENTIALS FOR UK HR 28 February 2013 Rose Carey Head of Immigration Anne-Marie Balfour Senior Solicitor, Employment

2 Rose Carey Rose Carey Partner & Head of Immigration Rose specialises in business immigration and has extensive knowledge in all aspects of immigration. Rose acts for a wide range of multi-national companies as well as high net worth individuals dealing with corporate and personal immigration matters. Rose often deals with complex immigration matters for clients and has assisted clients with audits of migrant worker files and HR systems in relation to the Points Based System sponsorship licence. Rose also regularly advises clients in relation to their right to work checks for migrant employees. Rose has excellent contacts at the UK Border Agency at Director level, which often leads to a speedy resolution of complex issues. Rose has participated in the UK Border Agency s Working Groups on key immigration issues 2

3 Anne-Marie Balfour Anne-Marie Balfour Senior Solicitor Anne-Marie advises employers on all aspects of employment law, including dismissals, discrimination, whistleblowing, protection of confidentiality, restrictive covenants, TUPE and remuneration and bonus issues. Anne-Marie negotiates settlements and conducts litigation as well as drafting employment contracts and documents. Many of Anne-Marie s articles on employment law have been published in The Times and in Human Resources publications. 3

4 Juliet Carp Juliet Carp Partner Juliet, who is not presenting today, is an employment law specialist with a particular interest in international employment law and global mobility. Juliet is elected Chair of the UK Employment Lawyers Association s International Committee and author of the textbook Drafting Employment Documents for Expatriates. Her work includes drafting/advising on: Employment documents for expatriates working in the UK and abroad; Global mobility policies; Complex working arrangements such as international commuting; Day-to-day problems such as maternity, reducing discrimination risks, contract change; Dispute resolution, negotiation and multinational severance agreements. 4

5 TOPICS Who needs the right to work in the UK Advertising and the right to work avoiding race discrimination Complying with the employer s duty to prevent illegal working; Drafting offer letters and contracts of employment to reduce hassle and limit risks; Pay rises, promotions, taking time off, changing the terms and conditions sponsored migrants; TUPE considerations; Redundancy and other dismissals where the employee could lose the right to remain in the UK; Dismissals where there are questions over an employee s right to work; Penalties under employment and immigration law minimising the risks for your organisation; 5

6 POLLING QUESTIONS Do you currently employ migrant workers - Yes - No - Prefer not to say Do you have a sponsor licence - Yes - No - Prefer not to say Do you include clauses in your employment contracts that address right to work issues? - Yes - No - Prefer not to say 6

7 WHO HAS THE RIGHT TO WORK IN THE UK Without restrictions British nationals EEA & Swiss nationals (although some exceptions) Migrants with Indefinite Leave to Remain (ILR) Commonwealth nationals with Right of Abode With restrictions Romanian and Bulgarian nationals until 31 December 2013 unless exempt Migrants with a time limit on their right to reside and work in the UK Sponsored migrants specific employer and role NB Croatia due to join EU on 1 July 2013 most Croatian nationals with need to be sponsored unless exempt 7

8 SPONSORED MIGRANTS Employer must be licensed sponsor Role must be skilled (professional/managerial) and meet UKBA minimum salaries May need to check there are no suitable settled workers (British/EEA nationals, ILR, UK Ancestry, BOT citizens) Different types of sponsorship transfers from overseas offices and new hires Issue Certificate of Sponsorship & migrant applies for visa/residence permit 2 stage process Sponsorship for particular role and salary Sponsor licence applications on average take 4-5 months Issuing certificates can take weeks if subject to UKBA quota and need to factor visa/residence permit processing times (2-12 weeks) 8

9 BUSINESS VISITORS Overseas nationals coming to the UK for up to 6 months If conducting business activities they will require a business visit visa if they are visa nationals (e.g. South Africa) or apply for permission to enter the UK for business at the point of entry e.g. airport if they are non visa nationals (e.g. USA) Cannot work in the UK as a visitor and business activities are limited e.g. - meetings - site visit - training Must not be doing a job in the UK Must not be paid in the UK during business visit (unless expenses) Attempts to deceive Immigration Officers as to purpose of visit could result in detention, removal and a travel ban Employers could be fined if found to be employing business visitors 9

10 RECRUITMENT AVOIDING RACE DISCRIMINATION Advertising, Interviewing, Offering. Osborne Clarke Services v Purohit [2009] UKEAT 0305_08_0902 Blanket policy of not recruiting migrants amounted to indirect race discrimination - Firm had a blanket refusal to consider any applicant from outside the EEA (EU plus Switzerland, Norway, Iceland and Liechtenstein) for trainee positions - Tribunal held that this constituted indirect race discrimination - Be careful when drafting adverts e.g. migrants need not apply - When rejecting migrant workers on basis of right to work avoid blanket refusals - If relying on right to work issues to reject candidate carry out assessment as to whether the role and candidate meet sponsorship criteria - Treat candidates the same e.g. ask for right to work proof for all candidates 10

11 RIGHT TO WORK CHECKS You have a legal responsibility to ensure that all of your employees have the right to work in the UK Civil penalty up to 10,000 per illegal worker right to work checks provide Statutory Excuse Unlimited fine for criminal offence of knowingly employing illegal workers and/or prison sentence of up to 2 years First day checks all employees of any nationality must produce proof of entitlement to work in the UK in accordance with Lists A or B e.g. passport/biometric residence permit. galworking/ Annual checks employees employed on or after 29 February 2008 who have provided a document from List B i.e. there is a time limit on their right to work, must produce their documents at least every 12 months You must take and retain copies of right to work documents TIP - Ask all employees for proof of their right to work and sign and date copies 11

12 CONTINUING RIGHT TO WORK Migrant workers must extend their visas before expiry If the application is made before expiry then they are protected by law and the conditions of the old visa continue so if they have the right to work this will continue if they have made an in time application to UKBA. Monitor progress of application and retain copies as proof application has been made If migrant is subject to 12 monthly check and they are waiting decision on outstanding application you can run a check with the UKBA s Employer Checking Service 12

13 DRAFTING EMPLOYMENT CONTRACTS Warranties Obligation to inform of changes to right to work PILONS Shorter notice/immediate termination provisions Think about the grey areas Include these terms for all employees. 13

14 PROMOTIONS, PAY RISES AND CHANGE IN ROLE SPONSORED MIGRANTS Any migrant sponsored under your licence has been sponsored in a particular role Changes to that role could require new sponsorship and a new residence permit before they take place, or require notification to UKBA Significant changes which will result in new sponsorship and residence permit: - Change in role so that their role is in different UKBA code (Standard Occupational Classification - SOC) - Change in role in same UKBA SOC code but drop in salary (unless due to maternity, paternity, adoption, sickness or company wide reduction to avoid redundancies ) - Change in role in same UKBA code but going from a role that was classed as a shortage to one that is not - TUPE results in sponsored migrant being employed in different UKBA SOC code Above changes may also require a search of the resident labour market (UK/EEA) to make there are no suitable settled workers requires role to be advertised Other changes to migrant s role e.g. pay rise (unless annual increment), promotion in same UKBA code with no drop in salary, change in work location must be notified to UKBA within 10 working days of change taking place 14

15 LEAVE SPONSORED MIGRANTS Maternity, paternity and adoption related leave simply requires notification to UKBA There is no allowance for parental/dependent leave. Reduced working after maternity will require new sponsorship if results in drop in pay Changes in salary due to maternity, paternity or adoption leave must be notified to UKBA Long term sickness requires notification to UKBA Any unpaid leave in excess of one month will invalidate sponsorship e.g. sabbaticals 15

16 OTHER ISSUES DURING EMPLOYMENT Business travel outside the UK - The right to work in the UK does not grant the right to work in other European countries. - Remember visa requirements may be very different from those for your UK nationals. - Apply for correct permissions - Allow plenty of time 16

17 TUPE If transferor has sponsored migrants transferring to you as part of TUPE, if you do not have sponsor licence then you must apply for your sponsor licence within 28 days of transfer If you have a sponsor licence already then you will need to notify UKBA of the details of the sponsored migrants transferring to you under TUPE Be careful if you want to change the role of any sponsored migrants transferring under TUPE as this could result in new sponsorship and residence permit or at least a report to UKBA of the change You must carry out right to work checks within 28 days of the TUPE transfer to maintain a defence against the civil penalty if staff are found to be working illegally. Due diligence. Information and Consultation. Consider indemnities from transferor in relation to right to work issues with migrant staff transferring as part of TUPE 17

18 ENDING EMPLOYMENT SPONSORED MIGRANTS If a migrant sponsored under your licence ceases employment you must cancel their sponsorship and report to UKBA Their leave will be curtailed to 60 days, within which they need to make a new application or leave the UK. Sponsored migrants on garden leave a report must be made to UKBA to confirm they are at home on garden leave Report must be made to UKBA within 10 working days of the end of their employment Right to work documentation must be retained for 2 years after their employment has ceased 18

19 REDUNDANCIES - SPONSORED MIGRANTS If alternative role in different UKBA SOC code or salary reduced, new sponsorship and permit required Other changes e.g. change in location require notification to UKBA Company wide reduction in hours to avoid redundancies only acceptable if: - the migrant is continuing to work in the same job, with reduced working hours; and - the migrant s reduced working hours are part of a company-wide policy to avoid redundancies; and - you are not treating migrant workers more, or less favourably than settled workers; and - the migrant s pay or working hours do not reduce by more than 30%; and - any reduction in wages is proportionate to the reduction in hours; and - the arrangements will be in place for no more than one year Statutory compromise agreements. 19

20 DISMISSALS RELATING TO RIGHT TO WORK If it comes to your attention a migrant does not have the right to work e.g. during a repeat check you must take action Provide migrant with opportunity to provide you with proof of their right to work If they have an outstanding application with UKBA you can run a check with the Employer Checking Service Failure to provide proof of right to work within a reasonable period should result in dismissal action Unfair dismissal Wrongful dismissal 20

21 PENALTIES MINIMISING THE RISKS FOR YOUR ORGANISATION Immigration penalties - If migrant employed before 29 February ,000 fine - If migrant employed on or after 29 February 2008 up to 10,000 fine per worker and - Criminal penalty of knowingly employing illegal worker could result in prison sentence of up to 2 years and unlimited fine - UKBA name and shame - Possible loss of sponsor licence Employment penalties - Unfair dismissal - normally capped in the region of 75,000, or - Re-instatement/reengagement - Wrongful dismissal value of salary and benefits for the notice period - Discrimination - potentially unlimited compensation - Reputational damage and loss of management time 21

22 PENALTIES MINIMISING THE RISKS FOR YOUR ORGANISATION Minimise immigration penalties - Carry out right to work checks for all employees - Sign and date copies of right to work checks - Carry out audit of personnel files to make sure right to work documentation on file - Ensure 12 monthly checks are diarised and carried out where appropriate - Use Employer Checking Service - Have process in place suspend, investigate, dismissal process Minimise the risk of employment claims - Draft your contracts carefully - If dismissing, think about your potentially fair reasons very carefully - Remember to follow what procedure you can - Seek prompt, joined up advice covering both employment and immigration issues 22

23 HOW WE CAN HELP Sponsor Licence fast tracking Surviving a UKBA sponsor licence audit Fast track appointment for the PEO Drafting of offer letters and contracts of employment Guidance on immigration related dismissals Advice on all aspects of commercial transactions Global mobility and ex-patriate employment advice Call us with day to day immigration or employment queries Training workshops Seminars and newsletters 23

24 FURTHER INFORMATION For more information on our services, please contact: Rose Carey Anne-Marie Balfour Juliet Carp

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