Employer responsibilities and avoiding discrimination Q&A

What are our responsibilities as a sponsor, and are there risks if we don’t comply with UKVI requirements?

In one of the first cases to reach court, an employer within the health and social care sector had their skilled worker sponsor licence revoked. This serves as a reminder that sponsors must adhere to the rules as specified by UK Visas and Immigration (UKVI) or they risk losing their status as an approved sponsor. In this particular case, failings included:

• not retaining resident labour market test (RLMT) evidence (RLMT no longer applies)
• not retaining copies of qualifications and interview records 
• not providing evidence of right to work for one employee
• a failure to record visa expiry date for one employee
• some migrant workers having the incorrect place of work recorded on their certificate of sponsorship (CoS).  

Employers are encouraged to ensure compliance with UKVI sponsor policy and guidance.

My organisation asks candidates about the right to work and about their immigration status prior to shortlisting. If it is apparent that we have enough UK candidates, we do not shortlist the non-UK candidates. Does this practice pose any risks to our organisation?

Yes. If the question is asked as a means of filtering out non-UK applicants or as a blanket policy to exclude non-UK applicants from the recruitment and short listing process, then this recruitment practice increases the risk of an indirect discrimination claim. It is also possible for a direct discrimination claim to be successful in these circumstances. We would recommend, in adverts, referring to candidates needing skilled worker sponsorship rather than non-UK candidates to minimise the risk of unlawful discrimination.

What are the risks to my organisation if we exclude candidates requiring skilled worker sponsorship from shortlists because the post does not satisfy the qualifications or salary requirement to qualify for skilled worker sponsorship?

You will face the risk of a challenge by individual job applicants or complaints that your recruitment practices are unlawful. The imposition of requirements which have a more disadvantageous impact on a particular group, will amount to indirect discrimination, unless your organisation can objectively justify the reasons behind the requirement. Asking this question at an early stage and having a blanket policy which excludes individuals who require sponsorship will disadvantage non-UK candidates on the grounds of their nationality or citizenship, which could also amount to direct race discrimination.

What if a resident worker applies for the job and does not have the necessary skills, qualifications or experience for the job, can I refuse to employ them and employ a non-UK applicant instead?

Only if you have specifically requested these qualifications, experience or skills in the job advertisement and person specification and if the non-UK candidate fulfils the other skilled worker specific conditions under the points based immigration system. You may need to obtain specific immigration advice on whether non-UK candidates are likely to get immigration clearance and we suggest the UKVI employer helpline is used in these circumstances.

The post which I am about to advertise will never attract skilled worker sponsorship as the post does not satisfy the qualifications or salary requirement to qualify for skilled worker sponsorship. Can I include a statement in my advert which makes it clear that as the post will not qualify for sponsorship so non-UK candidates will not be considered?

Potentially yes, but this is still indirect discrimination and excluding applicants based on sponsorship criteria is not the safest practice and still carries an element of risk that will require objective justification. Employers making such statements in adverts will need to be able to justify this assertion with evidence that the skill level and salary for the post would not meet the basic requirements of the points-based system. You might also consider making clear in advertisements that overseas candidates wishing to apply who would require sponsorship can determine the likelihood of obtaining a CoS for the post by assessing their circumstances against criteria specified on the gov.uk website.

Our trust is currently undergoing a re-organisation and some staff will be moved to alternative jobs and locations. How will this affect their current CoS? What processes and restrictions would apply?

This is a complex issue and is explained in UKVI guidance for sponsors which includes the specific sponsorship duties and timescales that should be followed. The criteria that applies is dependent on various factors such as:

• changes affecting the employer
• any change to salary levels
• shortage occupation 
• transfer of undertakings regulations (TUPE) requirements due to mergers, takeovers and de-mergers.