Compliance implications for employers when sponsored workers change role

There are a wide range of potential implications of corporate restructures for sponsorship. See our previous article, Implications of corporate restructures for a business’s sponsor licence for an overview of these. In this article, we highlight some changes to sponsored workers’ employment that can lead to illegal working and/or non-compliance with sponsor duties.

Sponsor compliance relating to right to work

All employers are responsible for ensuring that each employee has the right to work in the UK and this means completing a compliant right to work check before the employee starts work. Compliant follow-up checks must also be carried out where the employee does not have a permanent right to work in the UK.

Right to work compliance is also a key component of the set of duties placed on employers who hold a sponsor licence. Instances of suspected or proven illegal working can lead to a sponsor’s licence being downgraded, suspended and/or revoked.

Employers should also be aware that the issue of illegal working is currently high priority for the Government, with the Home Office recently launching a cross-government ministerial taskforce on immigration enforcement to crack down on illegal working and to coordinate other immigration enforcement activities.

Proposed changes to employment that can lead to illegal working

Sponsored workers have various restrictions on what work they are allowed to do in the UK. Below are some examples of changes to employment that can lead to illegal working for a Skilled Worker:

• A sponsored IT Analyst is asked to assist reception on an ad-hoc basis by logging visitors to the office onto an online system. This would lead to the worker carrying out activities outside of the job description stated on their Certificate of Sponsorship and would be non-compliance, even if they are trying to help out. As the additional task is at a lower skill level than the sponsored role, it could also potentially call into question whether the role continues to be eligible for sponsorship.

• After the pandemic, a sponsored chef in a busy London restaurant is in desperate need of additional chefs to share the workload. The chef is regularly working 60 hours a week, which is over and above the 40 hours a week stated on their Certificate of Sponsorship. The annual salary for a Skilled Worker must be pro-rated in line with their working pattern. If an employee works additional hours without receiving additional salary, it can result in them being paid a lower hourly rate. The sponsor must report a reduction in the hourly rate against the Certificate of Sponsorship within 10 working days of the change happening. If the salary level falls below the minimum hourly rate or the going rate for the role, the worker would be at risk of having their immigration permission cancelled, and the sponsor would be at risk of sponsor compliance action.

• An advertising agency has lost their main client, which unfortunately has gone out of business. The agency has good prospects to replace the work in the medium term due to pitches that are near award. They have a handful of sponsored employees and their Certificates of Sponsorship confirm their job code (known as a Standard Occupation Code) as ‘2473 Advertising accounts managers and creative directors’. They are paid £35,000 a year based on a 39-hour working week. Their salary level is over and above the general salary threshold of £25,600 and the going rate for the job code of £31,900. The agency wish to avoid making redundancies and are considering temporarily reducing their employee’s hours to 28 hours a week. Unfortunately reducing the number of hours will result in a reduction in salary that takes the sponsored employees below the salary threshold requirements. The agency must rethink their strategy if they wish to continue to sponsor the workers, for example by reducing employees’ hours to an extent that still meets the salary threshold requirements. They would then need to report the reduced hours and salary for sponsored workers on the Sponsor Management System within 10 working days.

• An employer is restructuring and has decided to downsize the marketing team. A marketing consultant is offered a new role as a sales consultant. The sales team sits next to the marketing team, so the change seems minor and seamless. The job code under which the employee is sponsored currently is 3543 Marketing associate professionals. The proposed move into sales would result in illegal working as the new role is more suitably aligned to code 3542 Business sales executives. If a sponsored worker’s job will change in such a way that it will fall under a different code (or in some cases a different job title within the same code), a fresh visa application (known as a ‘change of employment application’) must be made and approved before they start working in the new role.

A further point to note on the last scenario outlined above is that sponsors must carry out a repeat right to work check following an approved change of employment application and before the employee starts working in the new role. Failure to comply can result in revocation of the sponsor licence. This requirement has been made more explicit in the latest version of the Sponsor Guidance, which was last updated on 9 November 2022. This is a sponsor duty that currently goes over and above what is required for any other employer as set out in ‘An employer’s guide to right to work checks’ (under which a repeat check is only required before the expiry of the current statutory excuse).

We will be discussing practical compliance issues for sponsors of workers in more detail at our upcoming Mock sponsor audit webinar on 28 February 2023. Click here for more information and to book. If you require assistance with a specific sponsor compliance query, please get in touch with a member of our Immigration Team.