If you need to bring the employment of a member of staff to an end, it is always important to do this in accordance with employment law and best practice. Doing so will ensure that there is no potential for a future claim for unfair, constructive, or wrongful dismissal. When it comes to dismissing staff who are in the UK on a Tier 2 work visa, there are additional steps which must be taken into account. In this article, we will outline what needs to be done by sponsoring businesses if terminating a member of staff on a Tier 2 visa.
Understanding Your Duties As A Tier 2 Sponsor License Holder
The duties and responsibilities of Tier 2 sponsor license holders are considerable and need to be adhered to at all times to remove the possibility of the license being revoked, downgraded, or suspended. Of these duties is to keep the Home Office informed at all times during the employment of a sponsored migrant worker, including any change in employment status.
The Tier 2 guidance for employers states the following:
“You must report the following within ten working days:
- if a sponsored migrant does not turn up for their first day of work – you must include any reason given for their non-attendance, for example, a missed flight
- if a sponsored migrant’s contract of, or for, employment or services, or registration with a relevant body, is terminated earlier than shown on their certificate of sponsorship (CoS) - for example, if the migrant resigns or is dismissed; you must include the name and address of any new employer that the migrant has moved to, if known
- if you stop sponsoring a migrant for any other reason, such as:
- you become aware that they have moved into an immigration route that does not need a sponsor
- they are absent from work without pay for four weeks or more, and this absence is not covered by the exceptions in ‘Unpaid leave and reductions in salary”.
Some employers misinterpret the ten-day rule, thinking that this applies from the decision to dismiss a Tier 2 worker; this is actually ten days from the final work date.
When informing the Home Office of the early departure of a sponsored employee, in addition to providing their last known address, you will also need to advise why they have stopped work (or will be stopping work) earlier than planned.
When dismissing a Tier 2 worker, employers will also need to take into account the terms of the employment contract, and, in particular, the notice period that the employee is entitled to.
Employers may be eligible for a refund of the immigration skills charge. The rules states, “A partial refund will be made in respect of all whole unused 6-month periods of leave after the first year of employment where the worker: leaves their post early – for example, if they return home due to ill health, are made redundant or dismissed, fail their probation, or fail to secure a necessary professional qualification”.
Understanding The Rights And Obligations Of The Tier 2 Employee
Once an employer informs the Home Office that a sponsored employee is being terminated earlier than the date shown on their CoS, that person’s leave will be curtailed. Curtailment essentially means that the Home Office will write to the employee to advise them that their Tier 2 expiry date has been brought forward. The Tier 2 guidance for employee’s states, “We will curtail your leave in the following circumstances: if you fail to start working for your sponsor; or if you cease to be employed by your sponsor”.
The employee’s leave will typically be reduced to 60 days from the date that the decision to curtail is made. This does not mean that the employee is required to leave the country once they leave your employment. They will have sixty days to apply for a new job and a new work visa, or a different type of visa which they are eligible to switch to (remember, not all visas can be switched to within the UK). This curtailment doesn’t just impact on the employee, but also any dependant family members (i.e. spouse and children).
The challenge for employees is that it can take several weeks to secure new employment with a licensed sponsor. This is especially so if the employer needs to complete a Resident Labour Market Test which requires them to advertise the role in the UK for 30 days to see if a settled or domestic worker can do the job before offering it to an overseas national.
Another consideration which employee’s need to bear in mind is if they cannot secure a role with a Tier 2 sponsor within the curtailment period, and they return to their home country as a result, they will then be subject to the Tier 2 ‘cooling-off period’. The cooling-off period means they will be unable to apply for a new Tier 2 visa for one year.
Despite all of this, it is also important to note that until the employee receives a notice of curtailment, that person’s immigration status effectively remains the same. It is not unusual for Tier 2 employees not to hear about their curtailment for weeks or months after the Home Office was informed of their termination. And in these circumstances, they will still have 60 days from when the decision is made to find alternative employment.
Final Words
Terminating an employee, whether because they have decided to leave, or you have decided to dismiss them for performance or other reasons, can be difficult for any business. If you are unsure of what you need to do in terms of your obligations to the Home Office as a sponsor license holder, an immigration Solicitor will be able to assist you. Adhering to your compliance requirements, including dealing correctly with terminations, is essential in ensuring that you can continue to recruit international staff on whom your business relies.
