Preparing for April 2021 – what do you need to do?

As long as you can demonstrate that you have exercised reasonable care in determining status you have discharged your obligations in that respect. However, if you are unable to demonstrate this, you may as the end user client be responsible for the contractor’s tax and NIC’s.

Ordinarily, no but during the pandemic, yes.

You can start employing a Tier 2 or 5 worker who is in the UK before their visa application has been decided if the following conditions have been met.

• You have assigned the worker a Certificate of Sponsorship
• They have made an in time visa application (i.e. they made their new visa application before their current leave expired) and they have provided you with evidence of this
• The job you employ them in is the same as the one stated on their Certificate of Sponsorship.

Sponsors should be aware that they should carry out right to work checks before the individual starts undertaking work for them and if their visa application is eventually rejected, they must stop employing them.

Although sponsors will not be able to record migrant activity on the SMS about these workers, the Home Office has confirmed that any necessary reports should still be made on the sponsor’s internal systems.

If the worker is outside the UK, they may be able to start work for you remotely subject to the relevant employment, tax and immigration requirements in that country.

Yes but the sponsor must report this on the Sponsor Management System within 10 working days and must follow normal employment law principles.

If this results in the sponsored worker’s falling below the minimum required salary the usual position is that they cannot continued to be sponsored. However the government has implemented a concession for sponsors who have ceased trading or temporarily reduced trading which allows the salary to be reduced to 80% of the figure stated on the Certificate of Sponsorship or £2,500 per month, whichever is lower.

Has there ever been a more important time for all staff to feel that they are able to raise concerns about their working environment?

It is a pertinent time to remind all staff that they should be able to raise concerns without the fear of repercussions. It is a good time to be reviewing and re-issuing your Freedom to Speak up/Whistleblowing policy to all. Likewise it is a good time to remind all staff that they should not treat others unfairly or detrimentally for raising health and safety concerns.

Both subjecting someone to a detriment because they have blown the whistle or raised health and safety concerns (and dismissing someone for the same) is unlawful.

• Certain workers will become “furloughed workers”.
• Furloughed workers cannot carry out any work for their employer while designated as furloughed, or a linked or associated organisation but they can do voluntary work as long as they are not providing services for or generating revenue for the employer or a linked or associated organisation.
• A furloughed worker can be furloughed part time and work the rest of the time.
• The furlough period begins when the employee stops work, not when agreement is reached.
• If furloughed employees are expected to do online training while furloughed they must receive the National Living Wage/National Minimum Wage for the time spent training.
• Workers must be told of and agree to this change in writing. This written agreement must be kept for five years as part of the scheme. The guidance has confirmed that collective agreement reached between an employer and a trade union on furloughing staff is acceptable for the purposes of making a claim under the scheme.
• However it should also be noted that this is a change in status and pay (if pay is not being topped up) and therefore subject to the usual employment law rules on changing terms and conditions.
• Changes to the contract must be made by agreement with the worker and the government guidance is clear that to be eligible for the subsidy employers must document their communication with the employee on being furloughed.
• You must confirm in writing that an employee has been furloughed, but that the employee does not need to provide a written response. Please note that this is for the purposes of making a claim under the scheme. Any reduction in pay must be agreed in writing under normal employment law principles and failure to do so may result in Employment Tribunal claims. You should not rely on a term in the employment contract to effect this change. We can advise you on how to document this properly.
• Employers must also keep a record of the agreement for at least 5 years.
• If employers have collective bargaining arrangements in place, they must agree this change with the union in the usual way.
• Collective consultation obligations may be triggered if there are 20 or more employees that are proposed to be dismissed and re-engaged in order to effect the change to terms to be furloughed. You should take advice if you think this may apply.