Last updated 10:30am, 21 September 2022
COVID guidance for the employers of sponsored workers
In a change to guidance, a sponsored worker may only start work before their visa application has been decided if:
- they are applying under the Health and Care visa and their CoS was assigned before 4 October 2022; or
- their Certificate of Sponsorship (“CoS”) was assigned before 19 January 2021; and
- the application was made in time; and
- the role they are employed in is the same as the one on their CoS.
It is important to remember that the employer reporting duties start from the date of assignment of the CoS. You must ensure you record and maintain the required records, as set out in sponsor guidance.
Right to work
The right to work requirements have been relaxed on a temporary basis due to the pandemic. The new guidance confirms that right to work checks can now be carried out over video calls and that job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals. Further information is available here. Salaries can be reduced in accordance with relevant government support schemes and in accordance with temporary business need. The government support schemes apply to settled workers as they do to resident workers. Any reduction in pay must be part of a company-wide policy which is applied equally to resident and sponsored workers and which is intended to avoid redundancies or business closure. Any reduction in salary/pay must be temporary. Where a sponsored worker is paid hourly, you cannot reduce their rate of pay for the hours they work below the going rate for the occupation, as defined by the Home Office. You should consider retaining a copy of Home Office guidance in place at the time to demonstrate which guidance was relied upon. Home Office guidance confirms: “We will not take enforcement action against sponsors who continue to sponsor students or employees despite absences due to Coronavirus. You do not need to report student or employee absences related to Coronavirus.” Where the absence is due to the Coronavirus outbreak, which can include absence due to illness, self-isolation or an inability to travel due to restrictions, this should be treated as an authorised absence and does not need to be reported to the Home Office. In contrast to the usual position for sponsors, you do not need to withdraw sponsorship if the employee is absent from work without pay for more than 4 weeks. We recommend you retain evidence, on the individual's file, such as a copy of the isolation note, or email correspondence from the sponsored worker. Sponsored workers are permitted to work from home if this is due to Coronavirus and lockdown conditions. Usually, a change to the migrant's place of work would need to be reported to the Home Office using the Sponsor Management System (SMS), but where is as a result of Coronavirus, it does not need to be reported. Other changes to working arrangements should be reported as usual. If the hybrid working model becomes a permanent fixture in the employer's business, or workers are required to work from home indefinitely however, the employer should report the change in circumstances to the Home Office via the Sponsor Management System. You should aim to ensure that any changes to the sponsored worker's role remains within the occupation code for the role in which they are sponsored. If this is not possible, and the new duties fall outside their current occupation code, a change of employment application will need to be made to the Home Office. It is advisable to consider whether a non-sponsored worker could undertake the revised duties. Where a sponsored worker is made redundant, as part of a company-wide redundancy process, you will need to report the cessation of sponsorship on the SMS. The Home Office will curtail the sponsored worker's leave to a period of 60 days. If they are able to secure a new role or switch to a different visa category, the worker may make an application for further leave within that time frame.
If you would like to talk through the consequences for your business, please email us and one of our team will get in touch.
The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.