Please note, this is being written on 26 March 2020. The situation is subject to change. Always check the Home Office website and sponsor guidance for the current version of the up to date position. We will endeavour to update this as new developments take place.
Can Tier 2 employees work from home? Do I have to report this?
The Home Office have confirmed that Tier 2 employees can work from home during the Coronavirus outbreak. You do not have to report this, as long as it is related to the pandemic. However, it would be advisable to keep a record that the employee is working from home, and the reason for this.
What about employees who are absent from work?
The Home Office released a statement in February which said that;
“The Home Office recognises the current situation is exceptional and will not take any compliance action against students or employees who are unable to attend their studies/work due to the coronavirus outbreak, or against sponsors which authorise absences and continue to sponsor students or employees despite absences for this reason.
The Home Office will keep this under review, especially if the length of absences mean a potential repeat of period of studies become necessary.”
If an employee is absent for any reason connected to the Covid-19 virus, employers can continue to sponsor them, provided that they authorise the absence. This could mean;
• Being ill themselves
• Looking after a relative who is ill with the virus
• Self isolating due to direct contact with a person with suspected Covid-19
• Absence due to the workplace being closed or partially closed
• Employees who are stranded abroad.
However, this will not help you if the sponsored employee is absent for a different reason.
Sponsors should therefore keep a record of authorising the absence and how it is connected to the pandemic.
Can I grant unpaid leave?
Sponsors have always been able to grant unpaid leave of up to 4 weeks per year. Based on the statement above, sponsors should not be penalised if they grant longer periods of unpaid leave if it is connected to the Covid-19 outbreak.
Can I reduce an employee’s hours and pay?
Sponsors have always been able to reduce their employee’s hour and pay. However, it is important that their rate of pay does not drop below the appropriate rate for the role.
It’s important to remember that the required rate of pay set out in the standard occupation codes can be pro-rated down. The minimum rate of £30,000 for experienced workers and £20,800 for new entrants cannot. Particular care needs to be taken with sponsored employees whose salary is already at the lower end of what is permitted.
This should be reported.
Can I put employees of ‘Furlough’ leave?
You can see information about Furlough leave here
This has not yet been confirmed by the Home Office and details remain vague.
However, provided the reason for the leave is connected to the Covid-19 outbreak, then I can see no reason why Tier 2 employees should be excluded from this. Again, consider whether their rate of pay remains above the appropriate rate.
In addition, it would appear perverse if employers can put Tier 2 employees on extended authorised unpaid leave, but not on authorised part- paid leave. If in doubt, employers could consider ‘topping up’ salaries to the appropriate rate.
I have assigned a certificate of sponsorship but now the applicant cannot submit their visa application.
Provided that the application for a Tier 2 visa has not been submitted, you can changed the work start date to a date further into the future.
However, keep in mind that the certificate of sponsorship will expire 3 months after it is granted. It must be used to submit an application by that date.
The applicant cannot apply more than 3 months before their start date. This means that the new start date cannot be more than 3 months after the date that the certificate of sponsorship expires.
In a lot of cases, it may be easier to simply withdraw the certificate of sponsorship and assign a new one at a later date. You should receive a refund of the Immigration Skills Charge if you do this.
I have an employee with entry clearance but they cannot travel. What do I do?
You can delay their start date by up to 28 days. After that, the current guidance remains that you should report their absence to the Home Office.
If you are in this position, you may wish to seek advice.
What about my other sponsor duties?
All other sponsor duties remain in place. Sponsors should remind themselves of these, and consider how they will meet them in these new circumstances.
Particular through should be given to;
• Monitoring attendance when employees are working from home
• Maintaining records of absences and their reason
• Recoding changes in pay and hours
Cartwright King has lawyers in most areas of law, and the current information we are sharing is written by immigration lawyer Rita Kotecha of Cartwright King.
If you have any further queries around the above topic or otherwise, contact the firm here.