By: Sukhvinder Nara, Founder/Principal Solicitor, Nara Solicitors
Introduction
In the dynamic landscape of employment regulations, staying informed about updates is crucial for businesses to maintain compliance and avoid potential penalties. Recently, on February 9th, 2024, significant changes were made to the guidance regarding supplementary employment for sponsored workers.
This update is substantial and warrants attention from all employers, particularly those who sponsor workers under various immigration routes and also employ workers sponsored by other employers.
Eligible Routes
Sponsored workers on specific immigration routes are permitted to engage in supplementary employment.
These routes include the Skilled Worker route, Intra-Company routes (pre-11th April 2022), Senior or Specialist Worker (under transitional arrangements), T2 Minister of Religion, International Sportsperson, Creative Worker, Government Authorised Exchange, International Agreement (as employees of overseas governments or international organizations), and Religious Worker.
Conditions for Supplementary Employment
In addition to the job specified on the certificate of sponsorship (CoS), workers sponsored on these routes are able to carry out supplementary employment, provided it meets the following conditions:
- in either a job on the Shortage Occupation List or a job in the same profession and at the same professional level as the job for which the CoS was assigned; and
- is for no more than 20 hours a week; and
- the individual continues to work for their sponsor and any supplementary work takes place outside of their contracted hours for their sponsored employment.
It's important to note that if the sponsorship has been withdrawn, the worker has resigned or been terminated, or the sponsor license of the main sponsor has been revoked, even if the visa/leave curtailment letter has not been received by a worker, they cannot take supplementary employment.
Engaging in supplementary employment under such circumstances would constitute a breach of their visa conditions, and the employers employing such workers would also be in breach of the immigration rules and guidance.
Furthermore, undertaking supplementary employment in violation of leave/visa conditions could have serious repercussions for the individual's immigration status. Any future visa application may be refused on the grounds of this breach.
Clarification on Overtime
It's essential to distinguish between overtime within sponsored employment and supplementary employment.
Overtime within sponsored employment is not considered supplementary employment but is rather part of the sponsored employment. However, it must comply with Working Time Regulations and meet relevant salary criteria.
Right to Work Check
Employers providing supplementary employment to sponsored workers are obligated to conduct a thorough right to work check. This ensures that the worker is eligible to engage in supplementary employment as per the updated guidance. The check must confirm they can do supplementary employment.
Employers should also take steps to ensure the supplementary employment meets the above requirements by, for example, asking the worker to provide a letter or other evidence from their sponsor confirming:
- They’re still working for their sponsor;
- The job description and occupation code of their sponsored employment (if their supplementary employment is not in a shortage occupation);
- Their normal working hours
The employer should also ask the worker if they are doing any other supplementary employment with another employer to ensure they will not be doing more than 20 hours a week in total of supplementary employment.
Non-compliance with this updated guidance, especially for employers holding a sponsor license, could lead to severe consequences such as license revocation and civil penalties.
We urge all employers to familiarise themselves with these updates and take the necessary steps to ensure compliance. If you have any questions or require clarification on any aspect of this update, don't hesitate to reach out to us.
Stay informed, stay compliant, and safeguard your business against potential risks.
Feel free to contact us for a 15-minute free consultation or if you want us to conduct your immigration compliance audit.
