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19 June 2017

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How to navigate visa law

The healthcare sector relies on a significant number of migrant workers to deliver services and meet demand. But increasingly and sometimes urgently, practice managers face a number of ethical and practical challenges when a candidate or member of staff finds it difficult to obtain or extend their visa.

The prospect of someone working unlawfully in the UK is worrying and could prove costly for employers, but so could a claim for unfair dismissal if the situation is not handled properly and fairly.

The Home Office has placed responsibility for ensuring that employees have a right to work firmly in the hands of employers. By employing a person without a right to work here, the employer could face a civil penalty of up to £20,000 per illegal worker.

Protection for employers comes primarily in carrying out adequate right to work checks before offering a candidate a job, and by retaining a record of those checks – complete with copies of relevant identity documents.

In a situation where an employee’s permission to work is time limited, practice managers must keep a record of the expiry date of the permission, and repeat the checks when that date expires. This is where most organisations fall down, but it’s the area most easily addressed proactively.

What happens if a potential employee cannot evidence their right to work in the UK, or their right to work expires during their employment? Although it may sound harsh, it would probably be considered fair to dismiss them, given that the practice would otherwise be in breach of immigration law.

However, a reasonable investigation into the circumstances has to be carried out first – starting with a consultation with the employee to explore the reasons behind any visa issues. Of course, this is the manager’s chance to try to help resolve the issue, which could involve liaising with the Home Office.

The employer may wish to explore with the Home Office whether any practical steps can be taken to enhance the employee’s chances of obtaining a visa. Such steps may include making some adjustments to the employee’s terms and conditions of employment or job specification.

The employer may also want to consider redeploying an individual to an alternative role, subject to the needs of the business. Before dismissing an employee, employers should demonstrate that alternative measures were considered and explored. Dismissal should be a last resort in this sense.

It is worthwhile pointing out that an employer must have a reasonably held belief that they would contravene immigration legislation by continuing to employ an individual with a visa issue. Within this context, it is sensible to conduct a thorough and comprehensive investigation rather than rushing into action.

Acting prematurely to dismiss an employee due to the fact that the Home Office has raised some issues with their visa status, could in itself prompt a claim for unfair dismissal.

Instead, an employer who waits until the visa process has been exhausted – until after the appeal stage – is more likely to be able to demonstrate fairness in making the decision to dismiss an employee or migrant worker.

Having a specific policy on visa and immigration issues in place can help ensure all appropriate steps are taken in a variety of scenarios – setting out how the practice can support an employee with visa issues, and the circumstances in which it may prove necessary to dismiss them.