When a sponsored worker is off work on long term sick leave, as their employer you have to meet certain immigration compliance and employment law obligations.
Below we look in detail at dealing with a sponsored worker on long term sick leave, and the rules for employer-sponsors within both an immigration and employment law context.
What are an employers obligations around sick leave?
When a sponsored worker is absent from work on sick leave, as the employer-sponsor you have a number of obligations within an employment law context, including:
- Paying statutory or contractual sick pay
- Ensuring the health and wellbeing of the worker.
Statutory or contractual sick pay
If a sponsored worker is off work sick through either illness or injury, they might have a right to sick pay. If you have in place an occupational sick pay scheme, the worker may be entitled to enhanced contractual sick pay when absent from work through sickness. You cannot pay less than the individual’s entitlement to Statutory Sick Pay (SSP), but you can pay them more.
Unless the organisation offers an enhanced contractual provision for sick pay, the relevant SSP rate is the minimum you must pay an eligible worker on sick leave. SSP is, payable from the fourth day of any sickness absence from work, for a period of up to 28 weeks. This is paid for the days an employee normally works, called ‘qualifying days’.
By law, employers must pay SSP to anyone meeting the following criteria:
- they are classed as an ‘employee’ working under a contract of employment
- the employee has been off sick for a minimum of 4 days in a row, including non-working days, such as weekends or bank holidays
- the employee earns an average of at least £123 a week before tax
- they have provided you with notice and, where required, proof of illness.
The employee should notify you that they are sick within the time limit set by you, for example, within any sickness policy or employment contract, or within 7 days if there is nothing in writing. You do not have to pay SSP for those days that the employee was late in telling you, unless they have a good reason for the delay. They should also provide you with a fit note if they have been off work sick for more than 7 days in a row, including non-working days. However, you cannot withhold SSP if the employee is late in sending you a fit note.
If someone is absent from work for 7 days or less, proof of their sickness will not be required, although you can ask them to confirm in writing the reason for their absence when they return to work. This is known as self-certification. Your sickness policy, or the employment contract, should set out the procedure for self-certification and when a fit note is required.
The health and wellbeing of workers
All employers are under a statutory duty, so far as is reasonably practicable, to ensure the health, safety and welfare of their employees at work, including their mental wellbeing. This means that you are under an obligation to ensure the health and wellbeing of anyone absent from work through ill health, including a sponsored worker on long term sick leave.
If a sponsored worker is off work sick, as with any other worker, you should put in place provisions to ensure their health and wellbeing. This should include maintaining regular contact during their sick leave, providing support and assistance, where appropriate, and making any reasonable adjustments to facilitate their return to work.
Maintaining regular contact
There is no mandatory requirement to keep in touch with staff on sick leave, or them with you, other than the requirement to notify you of their sickness absence and to provide a sick note after being off sick for more than 7 consecutive days. Still, keeping in touch can play an important part in supporting the wellbeing of an absent worker, and in effectively managing their sick leave, especially in cases of long term absence. The amount of contact you have with a sponsored worker on long term sick leave should be no more than is necessary to check on their welfare, offer support, address any absence-related matters, such as sick pay or fit notes, and/or to facilitate their return to work.
Providing support and reasonable adjustments
If you have an occupational health scheme or employee assistance programme, either in-house or via an external provider, this can be used to assist with any independent medical assessment or other services to support an individual’s recovery and return to work. It’s important to let the worker know the details of any support and how to access these services, or if a referral is to be made directly by you. You should also discuss what changes may need to be made to support their return, such as amended duties, altered hours, a phased return and/or workplace adaptations. In some cases, if the worker is classed as suffering from a disability, you will be under a statutory duty to make any reasonable adjustments to accommodate their return.
Employers’ sponsorship responsibilities
As a UK sponsor, you have various responsibilities that you must meet throughout the validity of your licence. This includes monitoring the attendance of your sponsored workers, keeping attendance and absence records, and informing UK Visas and Immigration (UKVI) about any reportable matters via your Sponsorship Management System (SMS) account.
In this context, you must report the following to UKVI within a period of 10 working days:
- if a sponsored worker fails to start the job for which they are being sponsored, including any reason provided by them, if known, including illness;
- if they are absent from work for a period of more than 10 consecutive working days without permission, although permissible absences include sick leave;
- if there are any significant changes to their employment, including a reduction in salary from the level stated on their Certificate of Sponsorship (CoS), where reductions in salary due to sick leave are permitted but must still be reported;
- if they take unpaid leave for a period of more than 4 weeks, which would also normally require you to terminate sponsorship, although long term unpaid leave is again permissible but still reportable — this includes unpaid sick leave beyond the 28-week SSP period or where the sponsored worker does not qualify for SSP in the first place;
- if their employment ends earlier than the date shown on their CoS, for example, if the sponsored worker resigns or is dismissed, including for reasons relating to ill health.
If you fail to comply with your reporting and record-keeping responsibilities, you risk UKVI taking compliance action against you, including having your sponsorship licence revoked.
Impact of long term sick leave on visa sponsorship
If you have a sponsored worker on long term sick leave, it is important to remain legally compliant within both an immigration and employment law context.
If not handled in accordance with the rules and regulations, the impact of long term sick leave on sponsorship can be significant. However, in most cases, a sponsored worker on long term sick leave, provided they have notified you of their absence and provided ongoing proof of their incapacity for work, should be treated like any other individual on sick leave.
The only exceptions to this are if the worker’s salary changes, including reduced pay whilst on sick leave or if they take unpaid leave for more than 4 weeks, or if you make a decision to dismiss a sponsored worker on long term sick leave on grounds of capability. In all such cases, you should report such matters to UKVI via your SMS account and keep careful records.
In circumstances where a sponsored worker on long term sick leave is no longer able to perform the job role for which they were sponsored to do, even if they are classed as suffering from a disability, a decision to dismiss may be able to be justified, provided there are no reasonable adjustments that can be made to support their return to work. However, expert legal advice should always be sought prior to dismissing someone in such difficult circumstances.
It is also important to ensure that sponsored workers are aware of their own obligations to notify you, as their employer-sponsor, of their sickness absence and to provide proof of any ongoing incapacity. It is easy to anticipate a scenario where a worker can transition from being on authorised sick leave during the validity of their initial fit note, to any ongoing absence being classed as unauthorised if they fail to provide an up-to-date note.
Sponsored workers should follow the normal absence reporting procedures for sickness absence. Equally, the sponsoring employer should retain records of attendances and absences in the same way as for any other member of staff, although these records must be made readily available in personnel files. This is because UKVI may undertake compliance checks, asking to see evidence of both authorised and unauthorised absences from work in relation to sponsored workers, where the obligations to keep records for sponsored workers is just as important as the obligation to inform UKVI of any reportable matters.
How to manage a sponsored worker on long term sick leave?
The effective management of absence due to ill health is not only vital to the health and wellbeing of your workforce, but to help ensure compliance with your obligations as a sponsor. Employers should have in place a suitable sickness policy, one which includes guidance for a sponsored worker on long term sick leave, and emphasises the importance of the obligations on both the sponsor and sponsored workers.
As a minimum, your sickness policy should address:
- reporting procedures: how staff should report absences, including who to contact and when
- self-certification: when staff can self-certify and the procedure for doing this
- fit notes: when staff need to provide proof of illness or injury, providing a timeframe within which they must notify you of their sickness absence
- sick pay: what staff will be entitled to by way of statutory or contractual sick pay, where the details of any occupational sick pay scheme or the right to SSP should be set out
- keeping in touch: what to expect from you in terms of regular contact during sick leave, as well as how staff should keep in touch and with whom
- reportable matters: when and in what circumstances you will need to report any sickness absence to UKVI in relation to sponsored workers
- support services: what support is available to staff on long term sick leave, with details of any occupational health scheme or employee assistance programme
- reasonable adjustments: what changes can be made to either the working environment or working conditions where an individual on sick leave is potentially fit for work.
Need Assistance?
As employer solutions lawyers, DavidsonMorris advise sponsors on all aspects of sponsor licence compliance. Combining expertise in business immigration and employment law, we provide guidance on managing visa workers, including circumstances such as long term sick leave, and changes in pay and working conditions. Contact us for specialist advice.
Sponsored Worker on Long Term Sick Leave FAQs
What happens to a sponsored worker’s visa if they are on long-term sick leave?
If a sponsored worker is on long-term sick leave, their visa status could be impacted, especially if the leave extends beyond a certain period without pay. Employers must report any significant changes in the worker’s employment conditions to the UK Visas and Immigration (UKVI).
Can a sponsored worker receive Statutory Sick Pay (SSP)?
Sponsored workers are generally eligible for Statutory Sick Pay (SSP) if they meet the standard eligibility criteria, just like any other employee. However, the duration of SSP is limited, and employers should be aware of what happens when SSP entitlement ends.
Is it necessary to report long-term sick leave to the Home Office?
It is necessary to report any significant changes in the employment status of a sponsored worker to the Home Office, including long-term sick leave. Failure to do so can affect your sponsor licence.
What are my obligations if a sponsored worker on long-term sick leave is unable to return to work?
If a sponsored worker is unable to return to work after long-term sick leave, you may need to consider terminating their employment. However, this must be done in line with UK employment law to avoid claims of unfair dismissal. You must also report the termination to UKVI.
How should I communicate with a sponsored worker on long-term sick leave?
Maintaining regular and supportive communication is crucial. You should keep the worker informed about their employment status, SSP, and any changes that may affect their visa. This helps in ensuring compliance and supporting the worker’s well-being.
Can I dismiss a sponsored worker on long-term sick leave?
Dismissing a sponsored worker on long-term sick leave is possible but must be handled carefully. It’s essential to follow the correct legal procedures to avoid unfair dismissal claims. You must also report the dismissal to UKVI as it may impact the worker’s visa.
What adjustments can I make for a sponsored worker returning from long-term sick leave?
Reasonable adjustments, such as phased returns, altered duties, or modified work hours, can be made to support a sponsored worker returning from long-term sick leave. These adjustments should comply with both employment law and immigration rules.
Does long-term sick leave affect the Certificate of Sponsorship (CoS)?
Long-term sick leave can affect the CoS, especially if the worker is unpaid for an extended period. Employers need to ensure that the CoS reflects the current status and report any changes to UKVI.
Glossary
| Term | Definition |
|---|---|
| Sponsored Worker | An employee working in the UK under a visa sponsorship arrangement provided by their employer. |
| Certificate of Sponsorship (CoS) | A document issued by an employer that allows a worker to apply for a visa under the points-based system. |
| Statutory Sick Pay (SSP) | A payment made to employees who are unable to work due to illness, subject to eligibility criteria. |
| UK Visas and Immigration (UKVI) | The division of the Home Office responsible for the UK’s visa system and immigration control. |
| Reasonable Adjustments | Changes made to the work environment or duties to accommodate an employee’s illness or disability. |
| Sponsor Licence | A permit that allows UK employers to sponsor non-EEA workers under the points-based system. |
| Unfair Dismissal | Termination of an employee’s contract without fair reason or without following proper procedures, as defined by UK employment law. |
| Home Office | The UK government department responsible for immigration, security, and law and order. |
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
