The coronavirus outbreak throws up numerous employment law issues, including questions about travel, health and safety concerns and discrimination claim risks. From staff who refuse to attend work despite being well, to those who refuse to stay home when sick, what do employers need to know?

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About the coronavirus

Coronaviruses are a family of viruses that can be found in animals and humans. A new strain of coronavirus that had not been previously identified in humans – now officially called 2019-nCoV – was reported in Wuhan, in the Hubei province of China, in December 2019. The World Health Organisation has declared the latest coronavirus outbreak a “public health emergency of international concern”.

In China, more than 20,000 cases had been confirmed by 4 February and 425 people had died. According to the BBC news, there are additional cases confirmed in at least 20 other countries. The situation is changing rapidly, as the number of reported cases increases and further countries confirm cases.

The UK risk level is designated “moderate”, according to the UK’s Chief Medical Officers, but depending on circumstances and the spread of the disease this may get higher. The level is set for the purposes of enabling the government to plan and prepare in case of a more widespread outbreak. The risk to individuals of infection currently remains low: there have been only two cases diagnosed in the UK so far.

The coronavirus causes respiratory illness in humans, usually resulting in mild symptoms including runny nose, sore throat, cough and fever. Some individuals experience more severe symptoms and it can lead to pneumonia and breathing difficulties and, in rare cases, death. More susceptible individuals at greater risk of becoming seriously ill include older people, pregnant women and those with pre-existing medical conditions.

The coronavirus outbreak could cause various issues for employers. This article sets out some of the things employers should be thinking about now.

Travel bans and employees stuck abroad

China has travel restrictions in place to try to prevent the spread of the virus within the country, including suspension of travel within certain districts including Wuhan. Several countries have imposed restrictions on travelling to and from China, with some having closed their borders to Chinese nationals.

The UK government airlifted a group of UK citizens from Wuhan on 30 January, but does not have plans to evacuate all remaining UK nationals from China. Those who were on the flight have been placed in quarantine for two weeks (the incubation period of the disease). Some UK citizens are still stuck in Wuhan or elsewhere in China and not able to return.

Employees in China should make reasonable attempts to return to work at the end of their holiday or business trip. If that is not possible because of travel restrictions, they may be able to do some work remotely depending upon their responsibilities and the circumstances in which they find themselves. Managers should contact any employees stuck in China to discuss their situation and whether they can safely travel home. If appropriate, they can also discuss the possibility of remote working.

Normally, employees are entitled to be paid only when they are working or on authorised leave. If they are on holiday or fall sick while abroad, they should continue to be paid holiday pay or sick pay as normal. If they are doing work for you while abroad, you should continue paying them their salary.

If they employees are expected back at work but cannot return or work remotely, the situation becomes more complicated. They may have a contractual entitlement to pay if you have a travel policy which sets out such an entitlement, or if you have a practice of continuing to pay people in those circumstances such that they would have a reasonable expectation of being paid. In any event, if they have been abroad for work and have got stuck through no fault of their own, it would be reasonable to continue to pay their salary as normal until they return (or could reasonably do so).

If employees have been unable to return from holiday, you could choose to pay them (on a one-off discretionary basis), or ask them to take the time as annual leave or unpaid leave. You should treat employees consistently or you may risk discrimination claims.

Employees who have recently returned from China

Government advice for travellers from China is that individuals who have travelled from Wuhan or Hubai province to the UK in the last 14 days should self-quarantine even if they do not have any symptoms. Those who have travelled from elsewhere in China (but not Macao or Hong Kong) in the last 14 days and develop symptoms of a cough, fever or shortness of breath should also stay indoors and avoid contact with others as much as possible. All these individuals should call the NHS to inform them of their travel.

If you have employees to whom this applies, you should ask them not to come to work until after the incubation period is over and any symptoms have completely gone.

Health and safety

Employers have a duty to take steps that are reasonably necessary to ensure the health, safety and welfare of all their employees, including those who are particularly at risk for any reason. Employees also have a duty to take reasonable care of their own health and safety and that of people they work with. They must cooperate with their employer to enable it to comply with its duties under health and safety legislation. Employees who refuse to cooperate, or who recklessly risk their own health or that of colleagues or customers, could be disciplined.

Employers should take simple precautions to protect their staff’s health and safety:

• Limit work trips to China. The UK government advises against all travel to Hubei Province during the coronavirus outbreak. It advises against all but essential travel to the rest of mainland China (not including Hong Kong and Macao). Use telephone or videoconferencing where possible instead.
• Educate staff without causing panic. For example, send emails or display posters outlining the current situation and any government advice.
• Provide tissues and hand-sanitiser and encourage their regular use. In particular, encourage staff to wash their hands or use hand-sanitiser on arriving in the building after using public transport and after coughing or sneezing.
• Consider displaying posters on “cough etiquette”, hand and respiratory hygiene and safe food practices.
• Regularly clean frequently-touched communal areas, including door handles, kitchens, toilets, showers, and hotdesk keyboards, phones and desks.
• Ensure that anyone with coronavirus symptoms (cough, sore throat, fever, breathing difficulties, chest pain) does not come into work. If they have recently travelled back from China or have had contact with someone who has (or with someone infected with the virus), they should see a doctor and get a diagnosis. They should not return to work until all symptoms have gone.
• Keep the situation and government guidance review. If the situation worsens, employers may have to take additional measures such as minimising all work-related travel.
• Consider allowing high-risk individuals to work from home, particularly if there coronavirus cases are confirmed near the workplace.

High-risk individuals

Although there remains some uncertainty, those at most risk of becoming seriously ill if they catch the coronavirus appear to include older people, pregnant women and those with pre-existing medical conditions such as diabetes, heart disease and respiratory or immune problems.

There is currently a low risk of infection for individuals in the UK, but employers should keep the situation under review. If the outbreak worsens and more cases occur in the UK, you should carry out a risk assessment to gauge whether the working environment of high-risk individuals presents a risk of infection (e.g. because they will be exposed to individuals who are infected with the virus).

There is currently no vaccine for the coronavirus (unlike flu), so those at high risk cannot protect themselves. Where necessary, precautions should be taken such as moving particular employees to a different location or asking them to work from home. Consult with the individual before taking any action.

Employers have specific statutory obligations to take steps to avoid risks to which pregnant employees are exposed as a result of their work. Where it is not possible to avoid such risks by other means, pregnant employees must be offered suitable alternative employment on a temporary basis or suspended from work on medical grounds (on full pay) for as long as necessary.  If the period of suspension continues into the fourth week before the expected week of childbirth, or the employee is ill after the start of the fourth week, this will trigger the commencement of maternity leave.

What about sick pay?

Any entitlement to company sick pay will be governed by the contract of employment. Contractual sick pay normally includes any entitlement to statutory sick pay. Employees without any contractual sick pay may be entitled to statutory sick pay if they meet the conditions. If employees are not entitled to full sick pay, you may want to consider paying it on a discretionary basis if staff would otherwise try to return to work while still sick.

Employees who are not sick but are being requested to remain away from work because they have just returned from China may be able to work from home and, if so, should be paid as normal. Even if they cannot work from home, they should be paid their normal salary if they are well enough to work but are being requested not to attend.

Non-work-related travel

Employers can forbid work-related travel to China, but can they insist employees do not travel to China for personal reasons? You should consider carefully before imposing restrictions of this kind, as they might amount to indirect race discrimination (e.g. if staff are discouraged from visiting relatives or their country of origin). The risks of discrimination claims are dealt with more fully below.

Employees refusing to attend work

What is the position if the employer thinks it is safe to attend work but an employee is reluctant to do so because of fears of infection?

Employers should assess the risk regularly, consulting government websites for updates. They should also consider their staffing requirements and how many people they need in the workplace. It may be possible to allow employees who wish to do so to work from home or to take holiday.

Employers should, however, be mindful that they might need to require individuals to attend if other people fall sick and there is insufficient cover. If you do permit remote working or holiday, you should reserve the right to require workplace attendance on short notice, making it clear that disciplinary action could be taken if a refusal to attend work is unreasonable.

Before any disciplinary action is commenced, the situation should be discussed with the individual, because it may be possible to allay their concerns in some way. For example, if their real fear is the risk of infection on public transport, it might be possible to adjust their hours to enable them to travel outside rush hour.

If the individual refusing to come into work is pregnant or otherwise at high risk, you should tread carefully and may have to be more flexible. If someone has genuine fears about attending work, the stress of being required to do so or alternatively face disciplinary action may itself adversely affect their health.

Refusing to allow employees to stay at home, or disciplining them for not attending work, could potentially lead to legal claims. For example, an employee might try to claim constructive unfair dismissal if there is a genuine health and safety risk from being required to attend work. However, provided employers do not act unreasonably and employees are not placed at undue risk, such claims would be unlikely to succeed.

Race discrimination risks

Employers should be aware of the risks of direct and indirect race discrimination claims. There have been news reports of British Chinese people (or those who are mistaken as such) being racially abused in connection with the outbreak. Employers could be vicariously liable if their employees racially harass colleagues, even if the employer does not know and would disapprove of such behaviour.

Employers will avoid liability if they can show that they took “all reasonable steps” to prevent employees behaving in such a manner. Taking reasonable steps might mean having well-publicised diversity and harassment policies, and training all staff on the issue. Managers in particular must be trained about their responsibility to identify and prevent discriminatory behaviour.

As mentioned above, if employers forbid personal travel to China, this may indirectly discriminate against staff of Chinese ethnic origin. Whether or not such a claim would succeed would depend on the level of risk and, in particular, whether the employer’s reasons for forbidding the travel are legitimate and its actions are proportionate. The individual’s reason for wishing to travel might be relevant here. Given that such staff could be required to take extra holiday to self-quarantine at home after returning, an absolute travel ban might not be reasonable. 

If employers target staff of Chinese ethnic origin and request them not to come to work during the coronavirus outbreak, this could lead to direct race discrimination claims. Any request not to attend work should be related to potential exposure to the virus (see above) and should apply to all staff regardless of nationality or ethnicity.

Requesting staff who have recently travelled to Wuhan not to attend work during the incubation period might be indirectly discriminatory, if it affects more staff of Chinese ethnicity than others. This would, however, most likely be justified as a proportionate means of achieving a legitimate aim provided a well employee is not required to stay away from work for longer than 14 days after their return.

Immigration

UK Visas and Immigration is preparing short-term interim guidance on the implications for immigration of the coronavirus outbreak, which it aims to publish by 7 February 2020. This will deal with scenarios such as people in the UK whose leave to remain is expiring but who cannot return to China because of the coronavirus.

Final thoughts

Uncertainty remains about the exact characteristics of 2019-nCoV and its transmission. Official recommendations may change as experts learn more about the virus and the nature of the outbreak. Other employment issues may arise if the outbreak spreads widely in the UK, such as staff needing to take time off to care for dependents. Employers should keep the situation under review and stay alert for further government guidance.

 

Related Item(s): Employment

Author(s)/Speaker(s): Bethan Carney, Taya Sayekaya,

The Global Talent visa will launch on 20 February 2020 after being announced by the Government in August last year.

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Novel features of the Global Talent category include that it will have no cap on applications and will offer fast-tracked entry and settlement for eligible applicants within the science and research sectors.

Like the Tier 1 Exceptional Talent category, the Global Talent category will also be available to those with proven talent or promise in the areas of digital technology, arts and culture (including film and television, fashion design and architecture). 

The Government hopes to attract more top talent globally across the fields the visa covers. The expanded offering also aims to limit the impact the UK’s departure from the EU will have on the ability of scientists and researchers to live and work in the UK after the implementation period, particularly when combined with proposed changes to the immigration route for skilled workers (currently Tier 2).

Details of the Global Talent visa 

Specifics of the category, as set out in Immigration Rules published on 30 January include: 

• Adding UK Research and Innovation (UKRI) as an endorsing body for scientists and researchers who will be hosted at, or employed by UK research organisations approved by UKRI
• Requiring eligible applicants to have an endorsement from UKRI, or one of the bodies approved previously under Tier 1 Exceptional Talent, namely the Royal Society, the British Academy, The Royal Academy of Engineering, Tech Nation and the Arts Council England
• Enabling UKRI to provide fast-tracked endorsement to scientists and researchers considered to be making a ‘critical contribution’ to projects that have either received a substantial research grant or funding from an organisation set out in the Immigration Rules
• Enabling the other endorsing bodies to fast-track endorsements where the applicant has been awarded a fellowship under an expanded list of recognised fellowships
• Easing the restrictions on what specific documents must be provided to show the applicant is eligible for endorsement
• Providing accelerated settlement after three years for any Global Talent visa holder who has been endorsed by an endorsing body covering science, engineering, humanities or medicine, regardless of whether the person was endorsed under the ‘promise’ (ie potential leader in the field) or ‘talent’ (ie leader in the field) criteria. Accelerated settlement for those endorsed in the areas of digital technology and arts/culture will still only be available where the person meets the ‘talent’ criteria, though why those with promise in those areas have been left out of this possibility is not made clear
• Allowing Global Talent visa holders endorsed in the areas of science, engineering, humanities and medicine, and their partner dependants, to have absences disregarded for settlement purposes where these were to undertake research outside the UK directly related to the main visa holder’s grant of leave

Amendments to the Tier 1 Exceptional Talent visa

No new initial or extension applications can be made under the Tier 1 Exceptional Talent category after 19 February. Those who have endorsement letters that are still within their three month validity period can use these to apply under the Global Talent category. 

Applications for indefinite leave to remain under the Tier 1 Exceptional Talent route will continue to be accepted and no closure date has been set for when these must be submitted by. Provisions have been introduced to ignore absences for settlement purposes in the same way as for Global Talent visa holders and their partner dependants.

If you have any queries about these changes, please contact a member of the immigration team.

Related Item(s): Immigration & Global Mobility

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

Joanna Hunt comments for Relocate Magazine in an article discussing the latest UK immigration report from the Migration Advisory Committee on its recommendations for a post-Brexit immigration system.

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Click here to read the full article.

Type: Press

Related Item(s): Immigration & Global Mobility, BREXIT, Employment

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

The UK Government will be disappointed by the MAC’s firm rejection of an Australian points-based system for skilled workers with a job offer.

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On 28 January 2021, the Migration Advisory Committee (MAC) released its much-anticipated report, A Points-Based System and Salary Thresholds for Immigration.

The report is limited in scope, only covering the skilled worker route (currently Tier 2 General) and the work route for entry without a job offer (currently Tier 1 Exceptional Talent).

As a general comment, the MAC expects that, in comparison with the situation under free movement, the proposed new system will produce small changes on a macroeconomic level. There are likely reductions in immigration, the total UK population and GDP, with possible very slight increases in GDP per capita, productivity and public finances.

In what may prove controversial for the hospitality industry, the MAC has recommended that waiters and waitresses should not be eligible for sponsorship under the skilled worker route. It has however recommended widening the range of occupations eligible for sponsorship in the construction, childcare and teaching sectors.

The MAC also considers it imperative that the new system is be closely monitored, so that any required changes can be identified and made quickly.

The next step will be for the Government to respond to the MAC’s recommendations, which it is expected to do in March when its white paper on immigration is due to be released.

Recommendations for skilled workers with a job offer

In a bold rejection of the Johnson Government’s pledge to introduce an Australian points-based system, the MAC concludes that the current framework is the most user-friendly option for employers, relying on a combination of skill eligibility and a salary threshold rather than a range of ‘tradeable’ attributes.

The main recommendations in the report for skilled workers with a job offer include:

• Maintaining the existing structure of salary thresholds, where the higher of either a general or occupation-related threshold will apply – these should be based on the Annual Survey of Hours and Earnings (ASHE) and updated annually
• Reducing the general threshold from £30,000 to £25,600, to reflect the MAC’s previous recommendation that medium-skilled roles should be included in the new system
• Keeping the occupation-specific threshold at the 25^th percentile for each eligible occupation
• Expanding the definition of new entrants to include those who are working towards professional qualifications, and those who are moving directly into a postdoctoral role
• Allowing the new entrant definition to be available for five years (currently it is available for three years), with the five years including any time spent on the post-study work route
• Reducing threshold for new entrants to 70% of the general threshold, ie from £20,800 to £17,920
• Using national pay scales for 24 identified occupations in the NHS and schools (instead of using the general and occupation-related thresholds based on ASHE)
• Adding the following occupations to the list of RQF3+ occupations eligible for the route: Air-conditioning and refrigeration engineers; rail and rolling stock builders and repairers; skilled metal, electrical and electronic trades supervisors; carpenters and joiners; glaziers; window fabricators and fitters; plasterers; floorers and wall tilers; painters and decorators; construction and building trades supervisors; childminders and related occupations; teaching assistants and educational support assistants
• Removing the following occupations from the list of RQF3+ occupations eligible for the route: Fishing and other elementary agriculture occupations n.e.c; waiters and waitresses
• Not pro-rating salary thresholds for part-time work, but considering what options could be offered for existing migrants who wish to work part-time after becoming a parent and publishing regular visa statistics disaggregated by gender
• Only allowing salary from the migrant’s main job to count towards meeting the salary thresholds, on the basis that counting other forms of compensation (such as pensions, shareholding etc) would create excess complexity from an enforcement perspective
• Reviewing the current restriction on skilled workers owning shares in their sponsor
• Not introducing regionalised salary thresholds in the main skilled worker route, instead giving consideration to introducing separate visas for regional workers, initially on a pilot basis with a full evaluation
• Reviewing the general and occupation-specific salary thresholds annually based on data rather than a percentage increase from the previous year’s levels
• Reviewing what role, if any, the Shortage Occupation List (SOL) should have. This should be done once the new system has been operating for a period of time, and noting that if the cap on skilled workers and resident labour market test are removed as previously recommended, the main benefits of the SOL will no longer exist
• Not seeking to assess which medium-skilled occupations should be included on a SOL, on the basis that occupations that are historically or currently in shortage may not be an accurate guide to the position once the post-Brexit immigration system is introduced
• Not using the SOL as a means of allowing lower salary thresholds than otherwise recommended, as this would remove the pressure for employers to increase wages or improve conditions, both of which could act to relieve the shortage of workers willing to work in the included occupations
• Considering addressing shortages in low-skilled occupations either through a temporary worker route (NB the Government has signalled in the press this week that it does not plan to pursue this option), or through specific sector-based schemes

For settlement in the skilled worker route, the MAC recommends:

• Pausing the increases in the salary thresholds required for settlement – the MAC suggests this would reduce the likelihood of ‘churn’ (where migrants are replaced by employers after five years, especially in sectors where pay progression is limited), and to guard against limiting integration for migrants who have less likelihood of expecting to be able to settle for salary reasons
• Reviewing the criteria for settlement, after first putting in place a means of obtaining data that would enable the performance of the current system to be evaluated
• Until the above review has been completed, continuing to exempt workers from the salary threshold for settlement where their occupation has been on the SOL at any time during the six years leading to settlement

Recommendations for workers without a job offer

The MAC sees the current Tier 1 Exceptional Talent route as requiring reform because it is undersubscribed and the skill level required for participation is too high.

It believes this route could sensibly have points-based criteria applied to it, and notes this would be in line with the practice of comparator countries, in which points-based schemes are normally geared towards the highly skilled. The MAC does however warn against repeating the mistakes of the previous PBS, which led to there being a large pool of individuals carrying out unskilled rather than highly skilled work in the UK.

The Government has already announced a re-branding and expansion of this route to become the Global Talent visa, which will come into effect on 20 February. It will now be a matter of waiting to see whether the Government will choose to apply some or all of the MAC’s recommendations to the Global Talent visa.

The main recommendations for workers without a job offer include:

• Having an expression of interest and monthly invitation to apply as the initial stage in the process – there should be a cap on invitations
• Using tradeable points criteria, incorporating additional points for migrants the Government wishes to attract, eg. Age; Qualifications, perhaps with extra points for STEM or other targeted qualifications; Previous UK studies; Priority attributes such as creative skills; Other criteria such as those to encourage applicants with desirable skills in areas where a job offer might be difficult to secure
• Focusing on high potential rather than established exceptional talent, while being aware that this may lead to visas being granted to migrants who fail to reach that potential
• Having a cap on the overall number of visas issued
• Running large-scale cohort studies to review and refine the selection criteria

The future role of the MAC under the post-Brexit immigration system

The MAC has also responded to the Government’s request for comment on the enhanced role it has proposed for the MAC, including what the scope and timing of its first annual report should be, and whether there should be changes to the composition of the MAC in the future. The MAC stated:

• It would like to establish a strategic analytical programme to address evidence gaps in existing migration-related data and research, and to enable it to evaluate the effects of migration policy
• It needs better access to existing data held by Government departments, which could be addressed through the Home Office retaining historical data in a format suitable for statistical analysis, as well as the Government linking relevant datasets and making them available to the MAC
• Its annual reports will review the effectiveness of immigration policies and assess their impacts on an ongoing basis, including making further recommendations based on these assessments
• It is an independent, expert advisory body that uses widespread stakeholder engagement to gather evidence, alongside statistical evidence and academic research, to inform its recommendations to government, and that this composition is fit for purpose
• It intends to engage with stakeholders and employers on a more routine basis and outside the scope of specific commissions, as part of its enhanced role
• The MACs current resources and funding constrains it from undertaking its enhanced role, which will comprise further commissions as well as proactive analysis, evaluation, routine stakeholder engagement and a more detailed annual report

This report is also the last MAC report to be submitted with Professor Alan Manning as its Chair. The Government is currently recruiting for a new Chair. This, aside from anything else, will no doubt have a significant influence on the direction the MAC takes as it embarks on its enhanced role.

It is clear that this year will be one in which employers and other stakeholders will need to keep up to date on the features and roll-out of the post-Brexit immigration system. We will continue to provide updates as and when they happen. If you need more detailed information or advice, please get in touch with a member of the immigration team or your usual contact, or visit our Immigration Solutions for HR page, where we offer a range of toolkits, training and onsite support for businesses.

Related Item(s): Immigration & Global Mobility, BREXIT, Immigration Law Academy – 24 March 2020, Immigration Solutions for HR

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

If you are a sponsor under Tier 2 of the Points-Based System, you should recently have received your annual email from the Home Office to remind you to submit your annual CoS allocation request. We can help you to submit your request, or if you have not received the email, we can follow this up for you.

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It is also advisable to use this as a prompt for reviewing your sponsor licence details to ensure that they are all up to date, reporting any changes that may have been accidentally missed and reminding yourself of the other sponsorship duties that you are responsible for. Below is a helpful summary of some of the reporting requirements that apply to Tier 2 and 5 sponsors, but please do get in touch with a member of the immigration team or your usual Lewis Silkin contact if you need assistance with making reports, or you’d like for us to carry out a mock audit so that we can help you be in the best position ahead of a Home Office audit.

 

Why is this important?

The Home Office regularly reviews your sponsor licence from the back end and aims to audit all sponsors at least once every four years. Non-compliance with any of these duties can lead to your licence being revoked. Post-Brexit, it is likely that you will rely on your licence for even more employees than before as EEA nationals will likely need to use sponsored immigration routes from January 2021.

Timing is key as you must report changes on the Sponsor Management System (SMS) by set deadlines. If an event is not reported within the necessary time-frame, it should still be reported as soon as possible.

Sponsor details

You must report the following within 20 working days:

• A change of the organisation’s name
• A change of office address, or an additional office address
• A change of Authorising Officer or Key Contact identity or contact details, including change of office address
• If the organisation or an owner, director, Authorising Officer, Key Contact, Level 1 User or person running the business day-to-day is convicted of a relevant offence as set out in the Tier 2 and 5 sponsor licence guidance
• Changes to the organisation’s registration with a governing body that is required to be registered with
• Organisational structure changes including mergers, demergers or takeovers
• Some or all of the business is sold (if a new owner has an interest of 51% or more, then a new sponsor licence application will be required and should be prepared prior to the change to ensure the timing doesn’t cause issues for sponsored workers)
• A substantial change to the nature of the business
• The business stops trading or goes into administration
• If your organisation stops being a charity or small business (or vice versa) you must report this within 10 working days. How you are categorised has a significant impact on the Skills Charge levied on all your sponsored workers.

Reporting migrant details

You must report the following events within 10 working day

• If a sponsored migrant does not turn up on their first day of work
• If you need to cease sponsoring a migrant, e.g. because their contract ends or does not start, or they change visa category
• If there are changes to a migrant’s job title or core duties – a significant change in duties could lead to a change in SOC code which would require a whole new visa application to be approved before they start the new role
• Change in salary including if the migrant goes on unpaid leave (annual incremental increases in line with company policy are exempt from this)
• If the location of employment changes, including where there is an additional office location of employment or regular working from home, or if the migrant goes on secondment or is a sportsperson going on loan
• If a migrant is affected by TUPE or similar protection, e.g. if the sponsoring organisation is involved in a merger or demerger
• If a migrant is absent from work for more than 10 consecutive working days without permission (this must be reported within 10 working days of the 10^th day of absence)
• If a migrant goes has unpaid leave accruing to four weeks in any calendar year – this will also normally lead to the migrant’s visa being curtailed

You should also be aware that if a Tier 2 General migrant’s visa has already been granted and their start date needs to be delayed, the new start date cannot be more than 28 days from the start date listed on their CoS or 28 days from the date their leave was granted, whichever is later. If the new start date is within the allowed 28 days, you should report the new date on the SMS as soon as this is known. A start date later than the allowed 28 days will require sponsorship to be withdrawn and a fresh application to be made.

Related Item(s): Employment, Immigration & Global Mobility

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

The Home Office’s most recent experimental statistics show that nearly 2.6 million applications were made under the EU Settlement Scheme (EUSS) to the end of November 2019, and more than 2.2 million have been concluded. These figures include repeat applications by the same person however.

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It is not possible to accurately estimate the number of people eligible to apply under the scheme but it is likely that at least half of eligible people are yet to apply – the Office for National Statistics estimates there were 3.725 million EU nationals living in the UK at the end of June 2019 but this figure excludes the family members of EEA nationals who are not themselves EEA nationals, and eligible people who are living abroad. Although some people who are currently living abroad are eligible to apply, this fact has not been well-publicised by the Government and there is a high risk these people will miss out altogether.

 

The drop in the rate of applications from October to November (from 590,300 to 142,300) is not surprising as fears over a no-deal Brexit reduced once the Johnson Government negotiated a revised deal with the EU. It is less likely that we will see a further surge ahead of exit on 31 January 2020 because of the new Government’s commitment to leave on the basis of that deal.

 

The Home Office is making significant progress on processing applications, bringing the number of applications outstanding at the end of November 2019 down to 361,900, compared with 525,200 at the end of October.

 

There have been calls for the EUSS to be converted from an application scheme to a registration scheme, however the new Government is not willing to entertain this. Assuming we leave the EU with a deal, what this means is that EEA/Swiss nationals and their family members who are in the UK and fail to apply by the 30 June 2021 in-country deadline will have no lawful basis of stay in the UK.

 

These people will be expected either to make a late application citing substantial reasons for missing the deadline, to apply to regularise their stay under the post-Brexit immigration system or to leave the UK (either voluntarily or through a removal process). Those who do not regularise their status or depart the UK will become subject to the ‘hostile environment’ including being ineligible to work, study, rent property, hold a driving licence or bank account, or access free healthcare in the UK. 

 

At most, eligible EEA/Swiss nationals and their family members now have just under 18 months to apply under the EUSS. If application rates continue to tail off, the larger the surge of last-minute applications is likely to be.

 

We are expecting the Home Office to release guidance to employers this year on what they will be expected to do to ensure they do not employ an EEA national or their family member who does not have the right to work after free movement ends.

 

Right now, there are things that employers can do to minimise the potential headache of having to deal with a situation where an employee misses the EUSS deadline. These include:

• Continuing to issue periodic communications to employees to encourage them to apply under the EUSS and to offer them support now so that they do not leave their application to the last minute or miss the deadline
• Continuing to develop policies around what level of assistance is offered to employees to access advice and to complete the EUSS application process. We find that most employers will at least have immigration specialists provide talks to their employees to guide them and many also offer one-to-one surgeries and ad-hoc support.

Further down the line, employers can:

• Plan moves of EEA/Swiss nationals to the UK so that they enter the UK before the end of the anticipated implementation period on 31 December 2020. Those who come before that date will likely be in a significantly better position than those who come after.
• Issue communications to encourage employees holding pre-settled status to check if they have been absent from the UK for more than 6 months in a 12 month period since their leave was granted, and if so to consider applying for further pre-settled status before the scheme deadline. If they do not apply for pre-settled status again in this circumstance, they may not be able to qualify for settled status before their pre-settled status expires.
• Be alert between 1 January 2021 and 30 June 2021 to the possibility that a potential new employee due to move to the UK may still be eligible to apply under the EUSS if they previously lived in the UK before the end of the implementation period.

For further information, please get in touch with a member of the immigration team or take a look at our Immigration Solutions for Brexit.

Related Item(s): Immigration & Global Mobility, Employment

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

The Home Office’s most recent experimental statistics show that nearly 2.6 million applications were made under the EU Settlement Scheme (EUSS) to the end of November 2019, and more than 2.2 million have been concluded. These figures include repeat applications by the same person however.

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It is not possible to accurately estimate the number of people eligible to apply under the scheme but it is likely that at least half of eligible people are yet to apply – the Office for National Statistics estimates there were 3.725 million EU nationals living in the UK at the end of June 2019 but this figure excludes the family members of EEA nationals who are not themselves EEA nationals, and eligible people who are living abroad. Although some people who are currently living abroad are eligible to apply, this fact has not been well-publicised by the Government and there is a high risk these people will miss out altogether.

 

The drop in the rate of applications from October to November (from 590,300 to 142,300) is not surprising as fears over a no-deal Brexit reduced once the Johnson Government negotiated a revised deal with the EU. It is less likely that we will see a further surge ahead of exit on 31 January 2020 because of the new Government’s commitment to leave on the basis of that deal.

 

The Home Office is making significant progress on processing applications, bringing the number of applications outstanding at the end of November 2019 down to 361,900, compared with 525,200 at the end of October.

 

There have been calls for the EUSS to be converted from an application scheme to a registration scheme, however the new Government is not willing to entertain this. Assuming we leave the EU with a deal, what this means is that EEA/Swiss nationals and their family members who are in the UK and fail to apply by the 30 June 2021 in-country deadline will have no lawful basis of stay in the UK.

 

These people will be expected either to make a late application citing substantial reasons for missing the deadline, to apply to regularise their stay under the post-Brexit immigration system or to leave the UK (either voluntarily or through a removal process). Those who do not regularise their status or depart the UK will become subject to the ‘hostile environment’ including being ineligible to work, study, rent property, hold a driving licence or bank account, or access free healthcare in the UK. 

 

At most, eligible EEA/Swiss nationals and their family members now have just under 18 months to apply under the EUSS. If application rates continue to tail off, the larger the surge of last-minute applications is likely to be.

 

We are expecting the Home Office to release guidance to employers this year on what they will be expected to do to ensure they do not employ an EEA national or their family member who does not have the right to work after free movement ends.

 

Right now, there are things that employers can do to minimise the potential headache of having to deal with a situation where an employee misses the EUSS deadline. These include:

• Continuing to issue periodic communications to employees to encourage them to apply under the EUSS and to offer them support now so that they do not leave their application to the last minute or miss the deadline
• Continuing to develop policies around what level of assistance is offered to employees to access advice and to complete the EUSS application process. We find that most employers will at least have immigration specialists provide talks to their employees to guide them and many also offer one-to-one surgeries and ad-hoc support.

Further down the line, employers can:

• Plan moves of EEA/Swiss nationals to the UK so that they enter the UK before the end of the anticipated implementation period on 31 December 2020. Those who come before that date will likely be in a significantly better position than those who come after.
• Issue communications to encourage employees holding pre-settled status to check if they have been absent from the UK for more than 6 months in a 12 month period since their leave was granted, and if so to consider applying for further pre-settled status before the scheme deadline. If they do not apply for pre-settled status again in this circumstance, they may not be able to qualify for settled status before their pre-settled status expires.
• Be alert between 1 January 2021 and 30 June 2021 to the possibility that a potential new employee due to move to the UK may still be eligible to apply under the EUSS if they previously lived in the UK before the end of the implementation period.

For further information, please get in touch with a member of the immigration team or take a look at our Immigration Solutions for Brexit.

Related Item(s): Immigration & Global Mobility, Employment

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

Brexit finally does mean Brexit. The 2019 general election returned a Conservative government with a mandate to – as we repeatedly heard throughout the campaign – Get Brexit Done. What this means in the short term is that the UK will formally leave the EU on 31 January 2020.

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So what does Brexit mean for the January 2020 transfer window? And for football immigration in the longer term?

January 2020 window implications

Brexit will not affect the ability of UK clubs to buy European footballers in the January 2020 transfer window. The UK will remain a member of the EU for the duration of the window, which closes on 31 January 2020 (the same day the UK is set to leave the EU). So freedom of movement – which flows from the UK’s membership of the EU – will continue throughout January 2020.

However, clubs may have one eye on youth transfers. FIFA transfer rules prohibit the international transfer of footballers under the age of 18. One exception to the rule is where the transfer is within the EU (the exemption saw the transfer of players such as Cesc Fabregas and Hector Bellerin from Barcelona to Arsenal). However, the UK will – as a strict matter of fact – not be a member of the EU after 31 January 2020. As a result, we can presume that the benefit of this exemption will simply fall away for British clubs on that date. Might this influence how clubs do business for young players on their radar in the January 2020 window?

Beyond Brexit

From 31 January 2020 to 31 December 2020, the UK will have a period of transition. During this time, the UK and the EU will negotiate their future trading relationship. Free movement will continue during this period. This means that UK clubs will benefit from free movement in the summer 2020 transfer window. The January 2021 transfer window will be the first window after free movement will have come to an end. All UK businesses – including football clubs – will be keenly waiting for details of the new immigration system that the government will implement from 1 January 2021.

The implementation of a new immigration system may mean that European players will have to obtain a “governing body endorsement” (GBE) to transfer to an English club, as is currently the position for non-European players. A GBE is currently only issued in respect of “elite players”. This usually involves showing that they have international caps or a high market value. In effect, GBE restrictions could stop European players coming to the UK as relatively unknown talents.

The FA has also proposed to use Brexit to amend the “homegrown” rule and cut the number of foreign players allowed in Premier League squads post-Brexit. The FA wants to reduce the number of non-homegrown players allowed in a squad from 17 to 13. On the other hand, the Premier League wants its clubs to have the ability to sign players from anywhere in the world, without restrictions on quality or qualification.

2020 will certainly be a fascinating year for watching how the various challenges posed by Brexit unfold. The new world of post-Brexit immigration will undoubtedly have an impact on football transfers for British clubs.

Related Item(s): Sports Business

Author(s)/Speaker(s): Tom McEvoy,

With the new Conservative Government now bedding in and the Withdrawal Agreement Bill proceeding through Parliament, Brexit is all but certain to be going ahead at end of this month.

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The post-exit implementation period during 2020 provides an opportunity for you as an employer to take stock of your workforce planning and immigration compliance ahead of the major legal and process changes expected to be in place in the near future, and in particular from 2021. We have outlined some of the key changes to watch out for below, as well as the ways we can help.

New immigration categories

We expect to have a much clearer insight into what the post-Brexit ‘Australian-style points-based’ immigration system might look like, and how to prepare for it, once the Migration Advisory Committee has published its report to Government at the end of January and the Government has responded to it.

We now also know that the transformation of the Tier 1 (Exceptional Talent) visa, as well as the implementation of the post-study work visa for students and the ‘NHS visa’ trailed last year will be going ahead, all of which will provide additional options for UK employers to recruit and retain international talent. 

Further details of these plans are outlined in our article here.

Sponsor licences

During 2020, it will be important to be on top of issues like sponsor licence eligibility and compliance because once free movement ends, you may become more reliant on your existing sponsor licence to fill skills gaps, or might need to consider applying for one for the first time.

EU Settlement Scheme and Right to Work

The most recent statistics from the Home Office indicate that many eligible people have not yet applied under the scheme. There are proactive steps you can take to ensure that your EEA/Swiss employees and their family members continue to have the right to work for you after the implementation period. This includes establishing or reviewing communications and other policies aimed at assisting existing and new eligible employees to apply under the EU Settlement Scheme in good time before the deadline on 30 June 2021.

You will also need to be ready to update your right to work practices in line with anticipated further guidance from the Home Office on checking the right to work of EEA/Swiss nationals and their family members, and to deal with a greater number of people whose right to work can be checked online.

Administrative changes 

Immigration processing and control functions may be separated out from the Home Office and incorporated into a new Borders and Immigration Department. This could have significant implications for how the immigration system works in practice, depending on the emphasis and culture of the new organisation.

A wholescale re-draft of the Immigration Rules and guidance is likely to be undertaken following recommendations from the Law Commission on simplifying these areas, although it is not known yet whether the recommendations will be adopted or the timing for implementation. It would seem timely for these changes to be brought in at the same time as the new immigration system is launched.

There are also a range of recent and forthcoming changes to the Home Office’s technology and relationships with commercial partners and the services they offer, including ongoing updates to the administration of entry clearance and further leave application submission and case working processes, streamlining entry processes at the border and new commercial contracts being awarded for administering English-language testing and the Life in the UK test.

We will be covering all of these developments more in our Immigration Law Academy session on 24 March, which you can find further information on here.

If you need even more in-depth support, we are able to put together a tailored set of training, toolkits and onsite support for your business through our Immigration Solutions for HR.

Related Item(s): Immigration & Global Mobility, BREXIT

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

The general election has produced a decisive Conservative win with Boris Johnson as Prime minister – what will this mean for employment law?

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A Conservative government is unlikely to be intent on significantly strengthening employment rights, but can be expected to follow through on various employment law reforms already in progress whilst prioritising “getting Brexit done”. We look back over the main pledges from the Conservative party manifesto and outline the changes we might expect to see in relation to employment law.

Post-Brexit employment rights

Boris Johnson intends to bring the Withdrawal Agreement Bill back to Parliament before Christmas Day in the expectation of MPs ratifying it prior to the UK leaving the EU on 31 January 2020. The Conservatives have ruled out extending the transition period beyond 31 December 2020. The manifesto contained no detail about the long term plan for employment law, although did include a pledge to ensure high standards of worker’s rights. For more information about the implications of Boris Johnson’s deal, and the scope for long term divergence from the EU on employment rights, see our Brexit hub.

Employment status and protections

There was little in the Conservative manifesto about the Good Work Plan and nothing about the unresolved issue of employment status. However, the Conservatives did say they will ensure that workers have the right to request a more predictable working contract – something which was already promised in the Good Work Plan and which forms part of the requirements of the EU Transparent and Predictable Working Conditions Directive. The manifesto also mentions other “reasonable protections” which may refer to rights to reasonable notice of work schedules and compensation for shift cancellation, which are already under consultation.

The Conservatives also pledge to create a new state enforcement body to tackle non-compliance in the labour market following a consultation published last July. The plan outlined in the consultation was to bring together the existing patchwork of state enforcement under the remit of a single body, and then expand its remit to cover holiday pay for vulnerable workers and umbrella companies operating in the agency workers sector. All three major political parties wanted to establish some kind of new state enforcement agency and saw a role for stronger state enforcement action, but a Conservative government is likely to focus on targeting the most exploitative employers.

IR35 changes

The Conservative party have stated that they will review the proposed changes to the IR35 rules ahead of their planned introduction to the private sector next year in April 2020. The Chancellor of the Exchequer Sajid Javid spoke about wanting to ensure that the proposed changes were “right to take forward”. Businesses will be hoping that the changes will now be reconsidered. However, the changes are set to generate significant revenue and tackle a long-standing HMRC concern over non-compliance so, whilst their introduction may now hang in the balance, it remains sensible to continue preparations. 

Discrimination

The Conservatives have promised to address the complex reasons why some groups earn less at work, which suggests that pay disparity and transparency have not fallen off the agenda. However, the Conservative manifesto made no mention of compulsory ethnicity pay gap reporting (which was subject to a consultation last year) and so we do not expect that proposal to be enacted any time soon, as had been promised by the other major political parties.

In contrast, the Conservative manifesto suggested that they had already “reformed redundancy law so companies cannot discriminate against women immediately after returning from maternity or adoption leave”. It seems that this actually refers to a planned reform which would provide priority access to redeployment opportunities for pregnant women or new parents in a redundancy situation, which will presumably now be implemented.

Family rights

The Conservatives will take forward plans to allow parents to take extended leave for neonatal care (following a consultation published in July). The manifesto said they would look at ways to make it easier for fathers to take paternity leave, extend carers leave, encourage flexible working arrangements and consult about making flexible working arrangements the default unless employers have a good reason otherwise. It’s not clear what this will entail, but we can expect a consultation on extending flexible working rights at some point during this government’s term in office.

Pay

The Conservatives plan to increase the National Living Wage to two-thirds of the average earnings (which is currently forecast to be £10.50 an hour) and extend it to those over the age of 21. They believe that this would offer an average pay rise of £4,000 annually for four million people by 2024. (The manifesto made no mention of equivalent increases for the other rates of the NMW).

Trade unions

Finally, the Conservative manifesto did not set out any radical reforms in relation to trade unions and industrial action, except to state that a minimum service will be required during transport strikes.

Conclusion

With a Conservative government, the main issue is getting Brexit done and this is going to be the priority following the election. With the manifesto focussed on themes other than employment rights, it is hard to see what the longer term future for employment law entails. However, we can expect many of the employment law reforms already in the pipeline to be progressed.

For information on what a Conservative Government means for immigration law, you can read our full article here.

Related Item(s): Employment, Employment, BREXIT

Author(s)/Speaker(s): James Davies, Colin Leckey,