Missions have a number of legal obligations when employing local staff. This session focused on two main areas, firstly a mission’s duties when sponsoring non-EEA workers and its obligations to adhere to UK employment laws.
As a general rule, missions must be certain of a worker’s entitlement to work in the UK before employing them. Tanup Gadhia, compliance manager at the Home Office, warned of risks that HR managers should be alert to – notably workers presenting counterfeit UK or EU documents. Impersonations are also increasingly common so take steps to ensure the person presenting the document is, in fact, the owner of the document.
The mission as sponsor
If workers are from third countries, embassies and high commissions will have to apply to become a sponsor, either under Tier 2 (for skilled workers) or a Tier 5 International Agreement (IA) which will apply to non EEA domestic workers employed by the mission or a private servant working in a diplomatic household. A fee is payable (between £536 and £1476) and following a successful online application, the mission will be licensed to sponsor non EEA workers and issue Certificates of Sponsorship (CoS) to employees. The licence is valid for four years, provided they adhere to their responsibilities as sponsor.
To be a sponsor heads of mission must agree in writing to a limited waiver of diplomatic immunity in order that the Home Office compliance officers may enter the diplomatic premises for the purposes of carrying out a compliance audit.
A mission needs to conform to standard recruitment procedures. HR managers also need to be kept up to date on the immigration status of their employees at all times. The employee needs to be monitored and the mission must keep up to date records of the migrant’s contact details.
Failure to do so could result in the suspension or revocation of a sponsor licence or a reduction in the number of CoS a mission can issue.
The Home Office outlined a number of non-compliance issues that they have uncovered in their audits:
- The sharing of passwords for the Home Office’s online Sponsorship Management System (SMS), which is not permitted.
- Failure to advise the Home Office of changes to key personnel.
- Sponsoring family or friends under Tier 5 (IA) as employees of the mission.
- Vacancy advertised is not a genuine job.
- Switching status from study to employment (or vice versa) or other immigration routes such as asylum.
- Lack of engagement with UKVI.
- Lack of understanding of responsibilities of senior staff managing the licence.
- Failure to adhere to UK health and safety regulations and employment legislation, notably hours of work, social security provisions and paying domestic workers the National National Living Wage – which became law in April.
Risks of legal action
Employment lawyer Christopher Braganza of Sheridans, who has represented missions in legal cases, warned HR managers that embassies may not be able to claim state immunity when sued by their employees for unfair treatment, following a recent High Court ruling.
The High Court judge ruled that the State Immunity Act was incompatible with the European Convention of Human Rights and that this aspect of the UK law should be ‘disapplied’. Thus employees may be able to take their mission to court in cases where they claim their workers’ rights under EU law may have been infringed.
However, in cases where the private servants of diplomats took legal action, the diplomatic immunity of the individual was upheld.
Braganza strongly advised HR managers to update their knowledge on employment law and seek legal advice on any employment risks or exposure. He also advised that all missions should ensure they have proper employment contracts in place with their workers.
Ibrahim Ozkaratan of diplomatic insurer Clements Worldwide also advised that HR managers consider taking out employers’ liability insurance which could cover legal fees or compensation or other costs involved with legal action taken by an employee.
Sources of information
Home Office Sponsorship, employer and education helpline
T: 0300 123 4699
Sponsorship guidance and links
Tanup Gadhia of the Home Office briefs HR managers