Episode 2, Mobile Workforces: Managing Skilled Workers

Ruth Buchanan:
Hello and welcome to the second episode in our Mobile Workforces mini-series. My name is Ruth Buchanan and I'm an employment law partner. And today, I'm joined by Liz Parkin, a senior associate in our London office, specializing in employment and business immigration. Our mini-series will explore the ever-changing immigration rules that underpin mobility issues, and provide insights into the latest issues impacting our clients. We'll be covering the life cycle of the employment relationship, from recruitment and onboarding issues, through to managing a mobile workforce, and what happens when the relationship comes to an end. In the second episode, our focus is on managing skilled workers, addressing issues such as change of role or location for a sponsored worker. You're listening to Ashurst People Outlook.

Ruth Buchanan:
In episode one, we discussed how to recruit a skilled worker and what the eligibility requirements are. However, that's not the end of the sponsorship journey, with the ongoing requirements and considerations to be sponsored employees. Liz, we talked about the job coding being important in episode one. Can you explain in a bit more detail about why that's the case?

Liz Parkin:
When the business assigns a certificate of sponsorship, a CoS, in order to actually sponsor the worker, they identify what we call an occupation code, which is from that approved occupation list in the immigration rules, and actually set out on the .gov website as well. It's the responsibility of the employer to identify the most appropriate code. And there's the ONS Coding Tool, which we discussed in episode one, which can help a business in this respect in terms of identifying what job code might be most appropriate.

Liz Parkin:
There are two core considerations when we're identifying this occupation code. Firstly, if the Home Office believes that there's a more appropriate code, then they won't actually grant that CoS to the business in the first instance. So, they look at the job description, the duties, the salary for the role, as well as the skills and experience the actual applicant has, and they assess whether that is therefore the correct code in their view. If they think it isn't, then you won't get that certificate of sponsorship in the first place.

Liz Parkin:
The second end of this is that sponsorship and the occupation code ties that applicant to that role with that employing entity with the related going rate for salary and the duties and skills and experience required for the role, which is why the ONS Coding Tool is really helpful because it provides sort of more detail to the job coding. That .gov website just has job titles. Whereas that ONS Coding Tool is really helpful because it breaks it down into some example duties and skillsets and things.

Ruth Buchanan:
So, how would this work in practice? Could a promotion, for example, be an issue?

Liz Parkin:
So, helpfully, if the changing role is within the same occupation coding and the individual still meets the salary thresholds and the role still meets the skills requirements, which you'd expect in a promotion scenario, then that shouldn't trigger any new application and it should be fine. What it will trigger is an obligation to notify Home Office. And the sponsor does that via an online system. There's a number of notification requirements, and most of these have a 10 working day time limit within which the business needs to actually report that change up to the Home Office.

Liz Parkin:
If the promotion however is going to take the individual outside of that original occupation code and there's a more appropriate code that would now apply, then that is likely to trigger a requirement for the business to apply for a new certificate of sponsorship for the worker and for the worker to have to go back and made a renewed application on the basis of this new role and the CoS. With that, as you'd expect, comes time and cost considerations, and that individual has to stay in their current role until that new process and the application's actually been granted.

Ruth Buchanan:
Okay. What if you wanted to make other changes? So, if you wanted somebody to go part-time, for example, would that be okay?

Liz Parkin:
You'll remember in episode one that we've had a great big, long chat about these salary thresholds and the Home Office will only consider actual gross earnings when they're assessing whether a salary meets that threshold. So, they don't pro-rata that salary to the full-time equivalent. In addition, in most instances, you have this underlying hourly requirement of 10 pound, 10 or above, attached to the salary. If there's going to be a part-time arrangement, then that part-time salary still has to meet essentially what is a full-time going rate. If the reduction still meets the requirements, so say you've got somebody where the job requires 30,000 pounds a year minimum salary, and they're still going to be on 30,000 pounds a year for three days, then it's fine. And that just triggers a notification requirement to the Home Office.

Liz Parkin:
But if actually this part-time arrangement is going to take them down below those thresholds, then the ultimate question is going to be for the business, is there an occupation coding that now more suits this role with a lower salary threshold, which seems unlikely if it's purely a part-time arrangement in the same role. If the answer is actually, no, this is just a part-time role in the same occupation code, but actually it brings them below those salary thresholds, then the business is actually no longer able to sponsor that individual and they're going to have to stop doing that. There are some very limited exceptions, I will say, for health and education roles where part-time arrangements are accepted. And there's a bit more detail on the .gov website for any listeners who want to look into that further.

Ruth Buchanan:
What about secondments, do the rules allow you to do that?

Liz Parkin:
This is one that we often start talking to clients about and the Home Office and the sponsorship process are based on this concept of the sponsoring entity being responsible for that worker. In particular, they want to know that the employer, the sponsor has this day-to-day control and visibility over what that individual's doing, where they're doing it. And for example, whether they're actually even turning up to work or not.

Liz Parkin:
Although there are some instances where working for a third party under a secondment might work, it's generally prohibited. If the person is going to be working on a contract basis, so being supplied out to another party under a secondment arrangement, then the Home Office is very clear that there are guidelines that apply and the sponsor has to be the person who has full responsibility for the duties and functions and outcomes of that job. If the business wants to send a worker to work for a third party, then they need to ensure that this is a short-term arrangement.

Liz Parkin:
The Home Office gives some really good examples of this. And the one they say is, for example, an IT employee who goes out to a third party to do an IT project for, say, six months. It's for a specific duration, there's a clear end date. And actually the sponsor, the employer, is retaining responsibility for all of their actions, functions, outputs, and outcomes.

Liz Parkin:
What the rules don't allow is for the business to sponsor someone if they won't have that level of control. It also specifically now says in the guidance that if it amounts to hiring somebody out to fill a position with that third party, whether it's temporary or permanent, that's not permitted. And if they're going to feel like an ongoing or routine role for that third party, regardless of whether it's for a day or six months or a year, again, that is not permitted under this process. They're really focused on the employing sponsoring entity being able to have visibility and control over what that individual's doing for reporting reasons, and to make sure that that employee's still doing what they've been sponsored to do.

Ruth Buchanan:
Would that also then mean that you couldn't send someone to go and work at a different branch of the business in the UK or a different group company?

Liz Parkin:
The answer to that one's going to depend on the sponsor license setup. Sponsor licenses can be issued to an individual company or sometimes they can cover multiple group entities or branches and locations. If the individual, say, works in London part-time and in the Glasgow office part-time, then on the sponsor management system, you can actually have a secondary place of work listed. However, if that individual is listed against the London entity and they are now going to work for another group entity in Glasgow on a permanent basis, you would want that group entity to be covered, ideally by the same sponsor license. If they aren't, then it may be that they need to be added to the sponsor license if they meet the requirements of being a group-owned entity, or in some instances, it might actually require that Glasgow entity applying for their own sponsor license in order to essentially move that person up. Whether that then triggers a whole new application process is going to depend on the specific circumstances, but more often than not, it's not as easy as just moving people around. There's at least notification requirements, if not sometimes actually entirely new applications that need to be made.

Ruth Buchanan:
Are there any other changes that might cause an issue?

Liz Parkin:
In the sponsor license guidance, there's a list of changes that have to be reported to the Home Office within 10 working days of what they call a relevant event. Now, those include things like the employee not turning up for work, or for example, going AWOL for more than 10 consecutive days, which are all going to be things of particular consideration. There are other scenarios, such as if you stop sponsoring the employee.

Liz Parkin:
But the ones that we more commonly see that catch people out are actually where people want to take unpaid period of leave. If they want to go off and maybe take a bit of a sabbatical, or for example, questions about what happens with family leave. The rules permit a worker to take short periods of unpaid leave, but if they're off for more than four weeks, then unless there's an exception that applies, the business actually has to stop sponsoring them. Sabbaticals just simply don't work in this scenario. If they are on statutory family leave, such as maternity or paternity leave, sickness absence, for example, then those are permitted exceptions and that just requires a notification to the Home Office.

Liz Parkin:
There are some other ones that apply as well. If they're off on unpaid leave because of strike action, or for example, they're helping with an international humanitarian crisis or something, again, those are permitted in terms of unpaid periods of leave, but fundamentally, you can't allow people to go off for long periods of time without pay. And again, this all links back to this idea of control and making sure that you've still got somebody in the UK doing what you told the Home Office they were going to do.

Ruth Buchanan:
And how do the Home Office actually know about these changes?

Liz Parkin:
This is always the best question that clients ask, which is, "Well, if we don't tell them about the change, surely they'll never find out." As I said, the rules are very clear about the obligations that the business has as a sponsoring entity in terms of reporting changes.

Liz Parkin:
What would happen is if there's a later audit, for example, by the Home Office, or you go back to make a subsequent application and you haven't reported a change, then that is going to cause an issue and cause concern. In really serious instances, this could result in a compliance audit. So, the Home Office comes in and completely audits the entire business, every piece of paperwork to make sure it's compliant. They can put people on improvement plans. They can essentially downgrade your license, which stops you being able to employ any new people on the license, and in the very, very serious scenarios, they can actually revoke your license for non-compliance with your reporting obligations. Revoking the license means not only that you lose your sponsor license as an employer and you're not allowed to reapply for a set period of time, but also that that individual will lose their sponsorship and ultimately could be deported.

Ruth Buchanan:
Wow. That's some pretty serious ramifications. So, getting the job code duties and location right are important in the first place, but am I right in saying that the business needs to future-proof by considering what the role might be in the next few years?

Liz Parkin:
Yes. Because of those changes, getting that job coding right and thinking about what does this look like now? Are we happy this is what this role's going to look like in the next six months, 12 months, is really, really helpful because in most instances hopefully, the job won't change too significantly and you can find a job code that gives you that flexibility to cover what's now and what's coming down the road. The difficulty that you've got is the Home Office will look at what is now and they don't look at this future-proofing, and it's not impossible to get somebody moved and to do a new process. But again, it's just making sure that you're happy with the job coding, that the salary all aligns. And if you're going to have to make a new application, for example, that you're actually prepared for that, and you haven't already promoted somebody or moved them.

Liz Parkin:
Worst-case scenario, Home Office turns up, they ask you on an audit process, "Where's so and so?" And they're not actually sat in the job that you told the Home Office they were doing, which is not ideal. So, yeah, it's really thinking about sort of making sure that you're happy with your recruitment process in the initial stage, but also that you've got an eye to what's coming down the road.

Ruth Buchanan:
Liz, thanks so much for taking the time to talk to me. That was a really practical overview.

Liz Parkin:
No problem. Great speaking with you today, Ruth. Thanks.

Ruth Buchanan:
Thank you for listening. If any listeners want to get in contact with Liz or myself, then our details are on the Ashurst website, ashurst.com. We have some more exciting podcasts on the way, including looking at the new global mobility routes, right to work, onboarding, and tricky issues for sponsors. To ensure you don't miss any future episodes, do subscribe now on Apple Podcasts, Spotify, or your favorite podcast platform. While you're there, please feel free to keep the conversation going and leave us a rating or a review. Until then, thanks again for listening and goodbye for now.