In comparison to pre-pandemic, remote and hybrid working has seen a dramatic increase within the UK. A survey by ACAS showed that 60% of employers have seen an increase in hybrid working. If you are an employer utilising hybrid and remote working arrangements, be aware there are issues when opening up these arrangements to overseas workers.
Remote working is where a worker is employed by a company but works outside the traditional company office. More often or not, this would be working from their home but could also encompass working from a local coworking space. A hybrid arrangement is where time is split between remote work and working from a company’s office.
Remote working arrangements can provide your business significant benefits including access to a larger pool of talent alongside substantial reductions in overheads (in particular the running costs of an office). However, a fully remote workforce may not suit your business so adopting a hybrid arrangement, where workers work both remotely and in the office, could provide the perfect solution. This arrangement is a huge selling point to any potential employees providing more talent to choose from. It also provides a better work-life balance for your employees which in turn improves employee retention rates.
If you sponsor migrant workers, you are responsible for monitoring their immigration status, tracking their attendance, keeping their personal details up-to-date, and reporting any issues to the Home Office. These become more difficult when your employee undertakes hybrid or remote working.
However, it is your responsibility to take appropriate monitoring measures and that you fully comply with reporting and record-keeping duties as outlined in Sponsor Guidance Appendix D. Not doing so can have grave consequences including having your sponsor licence suspended, downgraded, or even revoked.
A written remote and hybrid working policy, which details how these arrangements will work, is key. You should include the following in this policy:
You will need to make the policy so that it can be accessed by all employees.
In addition, sponsor guidance has not yet incorporated remote and hybrid working. However, the Home Office has specified that if you have sponsor workers working remotely or under a hybrid arrangement, you will need to report their arrangement on the Sponsorship Management System (SMS) account. Where hybrid working is being reported the number of hours remote working and working in the office should be specified.
If you have a sponsored worker that is working fully from home, whether UK-based or in another country, the Home Office could question whether they need to actually reside in the UK.
Although sponsored workers can travel abroad for short business trips, if they choose to work from their home country on a long-term basis, their sponsorship could be invalidated. Not only could this stop them from being able to return to the UK, it could also affect any future immigration plans.
If you are looking to employ a remote worker based overseas and, they will not undertake paid work in the UK, a visa is not required; this is because your employee does not need permission to work in the UK.
If you are considering a hybrid working arrangement instead, where your overseas-based employee will need to take part in some paid work within the UK, depending on the work, they may need a work visa. In some circumstances, such as attending conferences, a business visitor visa may suffice while some nationalities will be able to visit visa-free.
If you require your overseas-based worker to then work longer-term in the UK, a valid sponsor licence is required. Your worker will also need to fulfil the sponsored work visa requirements such as a Skilled Worker visa.
The wording on your employee’s contract of employment is also key. For example, if your worker is required to visit the UK and undertake work that is allowed under visitor rules, their contract needs to state that the worker is wholly based overseas. Without this, any visit to the UK could be deemed as attempting to undertake paid work. Along with your employee being refused entry, if you are a UK sponsor, you could have this sponsorship licence suspended or revoked.
Employment rights must be considered for any overseas-based remote workers or when allowing existing sponsored workers to work remotely from overseas.
Sponsored workers would generally have the same statutory employment rights as their British equivalents. However, if working remotely from outside the UK, they may have additional protection from the employment laws in the country in which they are residing.
If your employee works entirely remotely from a country other than the UK, they may fall under the employment laws in the country of residence as well as those in the UK (as specified in their contract of employment).
If your sponsored worker formally requests hybrid or remote working, and you approve this request, you will need to formally amend their terms and conditions unless the change is temporary. However, it is important to be aware that if you agree to flexible working on a non-contractual basis, over time this could become an implied term in their employment contract.
You also must ensure where practically possible, the health, safety, and welfare of your hybrid and remote workers. With this, you will need to assess the health and safety risks of their place of work even if this is their home.
Your migrant workers will also need to understand their responsibilities under the UK’s immigration rules fully.
Hybrid and remote working arrangements have seen a significant increase over the last few years, and this is only set to grow further. These working arrangements can offer your business a real opportunity, but it is important to fully understand your duties as an employee.
A Y & J Solicitors is a specialist immigration law firm, with extensive experience in sponsorship of hybrid and remote workers. We have an in-depth understanding of immigration law and are professional and results-focused. For assistance with your sponsorship or any other UK immigration law concerns, please contact us on +44 20 7404 7933 or at [email protected] today. We’re here to help!