February’s Employment Law Digest – Key considerations when making visa holders redundant
14th February, 2023
Once a business has reached the difficult decision that redundancies are unfortunately required, a question we are often asked is if an employee with a visa can be made redundant?
The simple answer is that yes they can. The fact that an employee needs a visa to carry out their role does not mean that they should be treated more (or less) favourably than another employee in the same position, but employers should be mindful that when some visa holders are made redundant, as well as losing their job, they are often losing their right to live and work in the UK.
This will not be the case for all visa holders and the impact that redundancy will have, will depend on the type of visa that the employee holds.
Employees who have indefinite leave to remain or settled status are known as ‘settled workers’ and they are not subject to immigration control. This means that their right to work in the UK isn’t reliant upon having a visa or being employed and so their right to work will not be affected by being made redundant.
This is also the case for employees who have non-sponsored work visas, such as:
- dependant visa holders;
- EEA citizens with pre-settled status;
- students working part-time alongside their studies.
These visas are not directly connected to the employment and so termination of employment, will not impact on the visa.
For those employees with sponsored work visas, there will be additional consequences arising from the redundancies that it is important to bear in mind. The Skilled Worker visa (formerly the Tier 2 General visa) entitles the employee to work in the UK for their employer only, in the role that they have been sponsored to do only (For more information on all types of visa, visit our Visa Guidelines Hub).
Therefore it is highly likely that a sponsored worker will not be able to accept an alternative vacancy in order to avoid redundancy without action on the employer’s part to amend the scope of their visa accordingly. Failure to deal with such a change could jeopardise the employee’s right to work and therefore expose the business to a penalty of up to £20,000 in addition to endangering the business’ sponsor licence.
If there are no alternatives to redundancy and a Skilled Worker visa holder is made redundant, the employee’s right to work ceases. The employer has a duty to report the early termination of the employment to UK Visas & Immigration (UKVI) within 10 working days of the effective date of termination. UKVI will then write to the employee, usually giving them (and any dependants on their visa) 60 days within which they must either leave the UK or submit a new, valid visa application.
More often than not, a new valid visa application is only an option for the employee if they have lined up a job with a new employer who is willing to sponsor them for a new visa. Accordingly the employee will need time to find a new role and secure sponsorship and so the more time they have before the redundancy takes effect, the better. To support this and to do all they can to dispel any allegations of unfairness or discrimination, employers will want to commence consultation in plenty of time and may want to offer support to the employee so that they can assess their visa options. This will usually be external support considering that providing immigration advice is a regulated service and it is a criminal offence for a member of an unregulated organisation to give such advice. In addition, sponsored employees are likely to want to delay the termination date of their employment and therefore their visa and so will usually request to work out their notice or be placed on garden leave rather than being paid in lieu wherever possible.
Sponsor licence holders will be well aware of the cost of sponsoring an employee, the bulk of which is made up of the Immigration Skills Charge which will have been paid when initially sponsoring the Skilled Worker visa holder. In a redundancy situation, the sponsor is able to claim a partial refund of this Charge where employment ends earlier than anticipated due to redundancy which will help them recoup some of these costs.
The redundancy process is made more complex when there are visa holding employees involved and the number of pitfalls and seriousness of the ramifications increases. All members of our experienced business immigration team have the benefit of being able to advise you on both the employment and immigration law aspects to ensure that any processes are run seamlessly.
If you have any questions about the topics raised in this article, or if you would like support on another matter please contact one of our expert Immigration Lawyers.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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