Wednesday, Jul 27, 2022

Hiring Overseas Workers & Long Covid

Hiring Overseas workers – what employers need to know

Over the last few months there has been a steady stream of headlines announcing staff shortages in various parts of the UK economy. A combination of factors, including Brexit and Covid, have severely affected employers’ ability to find enough people with sufficient skills to carry out their work. What started in specific sectors such as haulage, farming and hospitality is increasingly becoming a significant problem in other sectors. As a result, many employers will be looking to bring in overseas workers to tackle these skills shortages. But what is involved in this process and how does it differ from the normal recruitment process?

As a result of the UK leaving the European Union, there is no longer any automatic right for EU nationals to live and work in the UK. Instead, they are treated like any other overseas worker. The exceptions are Irish citizens, those with settled or pre-settled status and those with indefinite leave to remain in the UK. Also, while in some sectors there might be fast-track visa systems that make it easier for employers, essentially the process is the same for everyone.

To employ most overseas workers, an employer must apply for a sponsorship licence – either a ‘workers’ licence for skilled or long-term employment or ‘temporary workers’ licence for specific types of temporary employment. The employer is registering themself as a sponsor to say they want to bring in individual workers from overseas. They can start the process before they have identified a suitable candidate to recruit. As part of the application, the employer is expected to explain why the sponsorship licence is required.

The employer must select individuals within the company to assign various roles on the Home Office SMS portal. The roles can be assigned to the same person. An organisation must have an individual in mind to be its authorising officer, this is usually a senior person such as a HR director or CEO. In addition to this, an organisation will need to appoint a Key Contact and a Level 1 User who will be responsible for updating and maintaining the information on the Home Office SMS portal.

The employer will need to provide information about the trading history of the company when applying for a sponsorship licence. The documents that need to be provided will depend on the type of visa being applied for and the type of organisation applying for the licence. The documents normally required include, but are not limited to, the company’s articles and three years of accounts. The aim is to satisfy the authorities that the company is an established entity with a trading history. The more evidence they can provide, the better their chances of successfully registering as a sponsor. In addition to the company’s trading history being scrutinised, the background of the key personnel appointed by the company to manage the Home Office SMS portal could potentially be scrutinised to ensure their suitability. This could include criminal record checks and checks for any previous issues with similar applications.

Most sponsorship applications are reviewed within eight weeks; however employers can potentially pay a premium for the Home Office fast track applications process, which has an approximate review time of 10 working days. Once an employer has successfully registered as a sponsor, they will be granted a certificate of sponsorship which they need to allocate to the overseas worker. This will allow the overseas person to make an application for a visa allowing them to come to travel to the UK. The employer has no control over the individual’s visa application process.

The company will also need to ensure that once the overseas worker has commenced employment, it obtains the appropriate, valid ID from the individual and ensures that this is kept up to date. The Home Office will regularly review the licence to ensure it remains valid. If an employer is not allocating jobs they might have their licence revoked.

It is also important for employers to keep their online portal records up to date. If an overseas employee leaves but the record is not updated, the employer could face civil and potentially criminal sanctions.

Long Covid recognised as a disability: advice for employers

The decision in the employment tribunal case of Burke v Turning Point Scotland is one of the first in the UK to address specific facts and has found that the long Covid symptoms suffered by Mr Burke amounted to a disability. 

Burke had been employed by Turning Point Scotland since 2001 as a caretaker. He tested positive for Covid-19 in November 2020. His symptoms fluctuated and included severe headaches, joint pain, lack of mobility, sleeplessness and extreme fatigue. Due to his symptoms, he did not want to socialise or attend family gatherings. It was also difficult for him to conduct normal daily tasks such as cooking, ironing and shopping.

Burke remained signed off work until August 2021 when he was dismissed by his employer for “ill-health” reasons. Burke brought claims including one for disability discrimination. The tribunal had to determine, as a preliminary issue, whether Burke’s long Covid symptoms satisfied the definition of a disability under the Equality Act 2010.

Although Burke’s symptoms fluctuated, the tribunal held that he suffered from the physical impairment of post-viral fatigue syndrome caused by Covid-19 and that he continued to suffer with this physical impairment at the date of his dismissal in August 2021.

The tribunal held that this was a physical impairment which had an adverse effect on his ability to carry out normal day-to-day activities; that it was substantial (in that it was more than minor) and long-term. Accordingly, the tribunal was convinced that Burke’s long Covid amounted to a disability under the Equality Act. As his sick pay entitlement ended in June 2021, the tribunal found that there was no incentive for him to still be off work beyond this point. 

Although each case will turn on its own facts it is likely that other employees in similar situations will be able to persuade a tribunal that their long Covid amounts to a disability, especially as the symptoms suffered by Burke are common among long Covid sufferers.

Given the potential for significant compensation to be ordered in disability discrimination cases and the risk of reputational damage to an employer, it would be prudent not to assume that employees with long Covid are exaggerating and to consider whether the particular case might qualify as a disability. In such cases, employers have a positive duty to consider what, if any, reasonable adjustments can be made. Key points will include:

Considering reasonable adjustments such as phased returns to work, adjusting working hours, the type of work done, continued home working and providing access to occupational health and employee assistance programmes. 

Ensuring line managers appreciate the importance of applying policies and procedures in a non-discriminatory way and avoid the risk of allowing frustration at an employee’s repeat absences from impacting the decision-making process.

Proactively managing absence and referring employees to occupational health to gain a better understanding of the situation. Having up to date medical evidence is key if absence levels reach the point where an employer may reasonably dismiss on the grounds of lack of capability. 

Adjusting internal processes to account for the effect of long Covid symptoms (such as brain fog) on employee performance.

Considering the application of any employer permanent health insurance policy and how intermittent absence affects entitlement to benefits.

Taking proper advice if they are unsure.

Alison Melville Greig Melville HR
Alison Melville Greig Melville HR
Human Resources

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