Hiring and firing - International workers
Most businesses will already have a set procedure for hiring new members of staff. This may include the following broad steps:
- Preparing a Job Description and Person Specification
- Reviewing CV’s
- Invitations to interviews
- Offer letters
However, when hiring non-EEA workers, it is absolutely essential that employers ensure they have complied with their duties to monitor and record the recruitment process.
Businesses which seek to hire non-EEA workers will need to apply for a Sponsor Licence in order to do so. Once they have this, they will be informed of the various sponsor duties that they must comply with when going through the recruitment process:
In most cases there will be an obligation to include a certain minimum level of information in the job advert to ensure it is compliant with the sponsor rules. On top of this, the advertisement will need to be advertised for a prescribed period or longer.
Job Description and Person Specification
Again, these documents will need to be as precise and specific as possible to show that the job being offered is one which allows the hiring of non-EEA workers. The required qualifications and skill will need to be carefully set out along with a list of the expected duties. If the employee would be carrying out duties that do not reflect the skill level of the proposed vacancy then the Home Office may challenge the genuineness of the vacancy and role.
The whole process should be clearly recorded and kept on file, particularly the reasons why the non-EEA worker should have been recruited over any UK or EEA workers. If the Home Office were to inspect the HR process they would want to see all of the relevant evidence. If there are any gaps then the Home Office may challenge the process. This would be damaging for the Sponsor Licence.
Once the business has overcome the initial recruitment hurdles, the employer can consider making an offer of employment to the non-EEA worker. It is common for employers to stipulate some conditions on the offer of employment, and certainly for immigration purposes the condition that the employee has a right to work before commencing employment is going to be essential.
Following on from this, what happens when the employee loses the right to work mid-way through their employment?
Section 98(2)(d) of the Employment Rights Act 1996 sets out that an employer may be able to fairly dismiss an employee if their continued employment would be in breach of any other legal duty or restriction. In this case, working in the UK without a valid right to work would be a breach of the Immigration Act 1971 for the employer and Immigration Act 2006 for the employee.
Although this is protected by statute, any employment contracts should be drafted to reinforce this principal so that the employee is made aware at the outset of their employment that the contract could be terminated if the employee loses the right to work in the UK.
Employers should take care to ensure that these matters are dealt with carefully and should seek legal advice on checking procedures and documents. Even where a decision to dismiss is taken on potentially fair grounds, the matter must be handled fairly and reasonably to avoid any allegations of unfair dismissal or potentially discrimination being made. The employer must also be alive to the fact that they will have reporting obligations to the Home Office in these circumstances too.
To discuss any of these matters further, please contact a member of our Employment or Immigration teams to arrange a joint consultation or to discuss any specific matter in more detail.