One of the defining features of the UK’s post-pandemic economy is the widespread adoption of flexible working and the increased employment of overseas-based remote workers. Having sponsored a migrant worker to undertake work in the UK, there are a number of legal considerations that must be taken into account by UK employers when implementing hybrid and remote working.
In this guide, we outline some of the issues for employers to be aware of when implementing hybrid and remote working arrangements for sponsored and overseas workers.
What is hybrid & remote working?
Remote working is where an employee works outside of a traditional office environment or other fixed workplace, typically when working from home. In contrast, hybrid working is a form of flexible working arrangement where an employee splits their time between working from home, or working remotely, and being in their normal place of work.
Some employers may be happy for their staff to work entirely remotely, especially where looking to reduce the overheads associated with running business premises, while others may prefer to have everyone in the workplace all of the time. However, many employers are adopting a mixture of the two, underpinned by a hybrid working policy, where the combination of remote working with working from the office, or other type of workplace, can be used to meet both the operational needs of the business and to provide a healthy work-life balance for the workforce.
By harnessing the benefits of hybrid & remote working arrangements, employers may also find that their global talent acquisition and retention rates increase significantly, allowing employers to access a much wider pool of talent from around the world.
Immigration options for overseas, remote workers
Where a UK employer is looking to recruit an overseas-based remote worker, and that worker will not be required to undertake any paid employment in the UK, or even visit the UK for the purposes of work, there will be no requirement for a visa, sponsored or otherwise. Even though there may be tax and other legal implications arising out of a remote overseas working arrangement, for immigration purposes the individual will simply be working remotely for a UK-based employer. This means that permission will not be required to work in the UK, and the employer will not need a sponsor licence issued by the UK Home Office to sponsor the worker’s employment, as they will not be employing that individual to work in the UK.
However, where the employer is looking to put in place a hybrid working arrangement under which an individual based overseas would be required to undertake some employment-related activities in the UK, even occasionally, the immigration position quickly becomes more complicated. In these circumstances, depending on the nature and extent of the UK-based activities required of the overseas worker, they are likely to need a work visa.
In some cases, if the overseas worker is only required to visit the UK, for example, to attend meetings or conferences, immigration permission may be sought by way of a business visitor visa. Depending on their nationality, they may even be eligible to come to the UK visa-free. However, without a visa or under a visit visa, where required, the remote worker would not be allowed to undertake any paid employment for their UK-based employer.
If the employer needed to bring the overseas worker to the UK to carry out work for their UK-based business, for example, because they have a sudden shortage of domestic workers, they will not be able to do this unless they have in place a valid and up-to-date sponsor licence and the overseas worker meets the eligibility requirements for a sponsored work visa, for example, a Skilled Worker visa meeting the minimum skill and salary requirements.
In circumstances where an overseas-based remote worker is only required to attend the UK for business-related activities permissible under the visitor rules, the wording of the individual’s contract of employment can be key here. This is because Home Office caseworkers making visit visa decisions, or UK Border Force officers making clearance decisions, may refuse permission where contractual provision is made for some work to be undertaken in the UK. This is because, unless the employment contract clearly states that the worker will be based wholly overseas, any attempt to come to the UK may be construed as an attempt to undertake paid employment. Apart from the risk of a refusal decision, any attempts by the UK sponsor to flout the immigration rules could result in the suspension and revocation of any existing sponsor licence or impact an application for a licence in the future.
Hybrid working & sponsor requirements for UK-based sponsored workers
Home Office communications from May 2023 state that hybrid working is now accepted as the ‘new normal’, and as such, specific reporting requirements will not apply to sponsors when a sponsored worker is operating under a hybrid working arrangement.
However, given the duties and responsibilities placed on sponsors when it comes to sponsorship, hybrid working may present certain compliance risks when the individual is working remotely. These can include monitoring a sponsored worker’s immigration status, tracking their attendance, keeping up-to-date employee details, and reporting any problems to the Home Office, for example, if the migrant worker is not complying with the conditions of their visa.
As such, in line with Sponsor Guidance Appendix D, sponsors are advised to keep internal records of sponsored workers’ flexible working arrangements. In circumstances where the arrangements involve flexible hybrid hours, both in and out of the individual’s normal place of work, the sponsor should also record the average number of hours in each location, together with any other relevant information.
Importantly, the Home Office policy team has indicated that if sponsored workers are to work solely from home, either from their UK-based home or their home country, then this may call into question the need for them to have permission to be in the UK. A sponsored worker can travel abroad for short business trips which are required as part of their role, although carrying out their role from overseas on an extended basis may invalidate their sponsorship and jeopardise their ability to return to the UK. Equally, time spent outside the UK may affect any future immigration plans that the migrant worker may have, where they may not meet the lawful continuous residence requirement for any application for indefinite leave to remain, even if, for example, they have spent 5 years on a Skilled Worker visa.
Complying with your sponsor duties
Given the fact that sponsored workers will be absent from their normal place of work during the remote aspects of their hybrid or remote working arrangement, complying with sponsor licence duties can be more difficult for sponsors. This is because employers are less easily able to monitor what the worker is doing, including possible unauthorised absences. For example, it is not uncommon for employees already working remotely in the UK to return to their home country, or decamp to a second home overseas, without the employer’s knowledge. In some cases, the sponsored worker may even tell their employer that they are still in the UK.
However, even though hybrid & remote working arrangements can make compliance with sponsor duties more tricky, employers must ensure that they have appropriate measures in place to monitor attendance and absences, and comply with their reporting and record-keeping duties. Any failure to comply with these duties can have serious consequences for the employer, including having their sponsor license suspended, downgraded and even revoked.
The best starting point for employers is to implement a written hybrid & remote working policy, clearly setting out the basis of how these arrangements will work, including:
- who is eligible to make a hybrid or remote working request, making any eligibility requirements clear, for example, employees have a statutory right to request flexible working after 26 weeks’ service, although the employer can opt to waive this qualifying service requirement
- how an individual should make a request for hybrid or remote working, including what procedure should be followed and to whom a request should be made
- setting out the conditions of any agreed arrangement, ensuring that migrant workers are aware that written permission must be sought before undertaking work from overseas
the various factors that may be taken into account by the employer when considering a hybrid or remote working request, including the ability to monitor attendance and absences.
Any workplace policy should be easy to understand and easily accessible to all members of staff, including all sponsored workers. It is also important to ensure that the migrant workforce is fully appraised of their responsibilities under the UK’s Immigration Rules. In this way, employers can emphasise the importance of ensuring that they remain compliant.
Additionally, employers should carefully and closely monitor sponsored workers when they are working remotely, ensuring that they are aware of their whereabouts at all times, and that any attempts to work overseas without permission are reported to the Home Office.
Additional legal implications of hybrid & remote working
When considering hybrid & remote working arrangements, either for sponsored workers in the UK or for overseas-based remote workers, there are various other legal considerations that must be taken into account in relation to these workers, including:
The applicable law
When employing an overseas-based remote worker, or allowing an existing sponsored worker to work remotely from overseas, careful consideration must be given to their employment rights. Typically, sponsored workers would have the same statutory employment rights as their British counterparts, although they may be afforded additional protection under local employment laws if working from their country of residence on a remote basis. Equally, overseas remote workers may benefit from both local employment rights and additional UK-based rights set out in their contract of employment.
The contractual terms
Where a sponsored worker makes a formal request for hybrid or remote working, and the request is accepted by the employer, or vice versa, this will amount to a formal change to the terms and conditions of their employment. In the short-term, hybrid & remote working can be undertaken on an informal basis without the need to introduce any contractual changes, although employers that agree to flexible working arrangements on a discretionary and non-contractual basis should bear in mind that the working arrangement may, with time, become an implied term of the employment contract.
Their health and wellbeing
Once a hybrid or remote working arrangement has been approved, the employer remains under a statutory duty to ensure, so far as is reasonably practicable, the health, safety and welfare of the sponsored worker. The employer is also under a duty to make a suitable assessment of the risks to health and safety to which the individual may be exposed whilst at work, even where that work is performed from home. This could include risks arising from not having a safe and suitable workspace at home, or risks to the worker’s mental wellbeing, such as working excessive hours.
DavidsonMorris’ business immigration specialists can support your organisation with all aspects of the UK sponsorship, including compliance with your duties when sponsoring migrant workers under hybrid or remote working arrangements. Contact us for advice.
Sponsoring hybrid & remote workers FAQs
What is hybrid working?
Hybrid working is a form of flexible working arrangement where an employee splits their time between working from home, or working remotely, and working at their place of work, although this does not need to be an equal split.
Do you need a sponsor licence to employ migrant workers?
It is not necessary to have a sponsor licence to employee a migrant worker under all immigration routes, where some work routes are unsponsored, for example, the Graduate route or the High Potential Individual route.
Last updated: 17 May 2023