What happened in the Shaji case?
Shabin Shaji was sponsored by Swan Care Solutions Ltd to work as a care worker. His Certificate of Sponsorship recorded an annual salary of £22,880 for a 40-hour working week.
After arriving in the UK, Mr Shaji completed training required by the employer and remained available for work. The company did not, however, provide him with substantive shifts or pay him the salary associated with the role.
The tribunal found that his employment had commenced and that he had been ready, willing and able to work. The absence of work resulted from the employer’s failure to provide it. In practice, the company had treated him as a zero-hours worker despite the terms on which he had been recruited.
Mr Shaji was awarded £28,843.53, including £20,400.76 for unlawful deductions from wages and £2,168.85 in holiday pay, together with further sums arising from the employer’s employment law failures. A separate costs order of £8,700 was subsequently made.
The tribunal was determining Mr Shaji’s employment law claims and did not make findings on whether the company had breached its sponsor duties.
When the sponsored work is not available
For sponsors, the immediate compliance issue is whether the organisation can provide the role for which the worker has been sponsored.
In the care sector, recruitment may be based on anticipated care packages, expected increases in commissioned hours or projected business growth. If those assumptions prove wrong, the employer may find itself with sponsored workers for whom there is insufficient work.
A temporary reduction in available work does not of itself establish a breach of the sponsor rules, but any resulting change to pay, hours or working arrangements needs to be considered against the applicable sponsorship requirements. More serious issues arise where the shortage becomes an established working arrangement and a worker sponsored for regular employment is routinely given substantially fewer hours, left without shifts or paid only when client work is available.
Employers cannot assume that describing the arrangement as flexible or operating a variable rota resolves the position. The contractual terms remain relevant, as do the salary and working arrangements on which sponsorship was based.
The same applies where the worker is required to complete induction, training or other preparatory work before being allocated shifts. Depending on the circumstances, mandatory training may constitute working time for National Minimum Wage purposes. Delaying pay until the worker receives their first client assignment can therefore create employment law exposure before the sponsor position is considered.
Where the business cannot provide sufficient work, the position should be reviewed before hours or pay are reduced. The employer needs to establish what it remains contractually required to pay, whether minimum wage requirements are being met and whether the change affects the basis on which the worker is sponsored.
For employers using sponsorship to support a demand-led workforce, the underlying issue is workforce planning. Where sponsored recruitment is based on projected demand, employers should be satisfied that they can meet their contractual and sponsorship obligations if expected work is delayed or does not materialise.
DavidsonMorris Strategic Insight for Sponsors
The decision concerns employment rights rather than sponsor compliance, but the facts illustrate how the two regimes can overlap. Leaving a sponsored worker without the work or pay they were promised can create employment law liabilities, while resulting changes to pay or working arrangements may also engage sponsor duties.
The risk is particularly evident in the care sector, where staffing requirements can depend on commissioned hours, care packages and fluctuating demand. Where sponsored recruitment is based on projected demand, employers should be satisfied that they can meet their contractual and sponsorship obligations if expected work is delayed or does not materialise.
Need Assistance?
If you are concerned about whether your organisation’s sponsored workers are being employed in accordance with their Certificates of Sponsorship, or you need advice on changes to hours, pay or available work, contact us for advice on your sponsor compliance obligations.
