How can a Sponsored Employee Terminate their Employment Contract? What are the Consequences?
As business immigration lawyers we understand just how frustrating it is for sponsor licence holders when they onboard a sponsored employee only to find that within a matter of months or after a year the sponsored employee wants to hand in their notice.
In this article, our immigration solicitors look at how a sponsored employee can terminate their employment and the consequences for the sponsoring employer and employee.
UK Online and London-Based Immigration Solicitors and Sponsorship Licence Lawyers
For sponsor licence and immigration law advice call OTS Solicitors on 0203 959 9123 or contact us online.
Can a sponsored worker terminate their employment contract?
A sponsored worker is no different to any other UK employee in that they can choose to leave their employment. A sponsored employee is duty-bound to comply with the termination provisions in their contract and give appropriate notice. However, if a sponsored employee plans to return to their home country your business may have little redress if they don’t work their notice period as the individual won't be in the UK. Alternatively, it may not be worth pursuing them if they are impecunious.
Sponsorship Licence lawyers recommend that employment contracts are drawn up carefully with thought given to notice periods and the difficulties of replacing staff who decide to leave your employment. For example, in the care home sector, it may be impossible to recruit a replacement employee from within the UK and it may take time to sponsor another overseas worker on a health and care worker visa. You may therefore want to include a longer notice period in the hope that the recruit will honour their contract and work the notice period.
In addition to notice periods, thought should be given to clawback provisions in employment contracts. For example, if your business voluntarily paid the sponsored worker’s visa application fees and immigration health surcharge as part of a golden hello package it would not be unreasonable to require repayment of these fees (or a proportion of them) if the employee terminates their employment within a specified number of months or years. A business cannot require an employee to reimburse them for the cost of the certificate of sponsorship, any sponsor licence costs or for payment of the immigration skills charge.
The sponsored employee’s employment options
If your sponsored employee is in the UK on a skilled worker visa or a health and care worker visa, they will need a job offer from another sponsoring employer in order to stay in the UK on a work visa. Some employees may not realise this and may therefore be willing to tear up their resignation letter once they understand the additional paperwork a sponsored worker faces when changing their sponsored employment.
Reporting termination of employment
It is vital that you report the termination of your employee’s contract of employment on the sponsor management system. Failure to do so could result in a Home Office audit or issues when you come to renew your sponsor licence. That’s because the Home Office rely on businesses to work with them in immigration control.
The notification of termination of employment will trigger the Home Office into curtailing the employee’s skilled worker visa or health and care worker visa. The visa is normally curtailed to 60 days to give the visa holder either time to get a new work visa via their new sponsoring employer, switch visa to a non-sponsored work route or leave the UK. Alternatively, if the worker meets the residence requirement, they may be able to submit an application for indefinite leave to remain.
The termination of the sponsored worker’s employment should trigger a refund of a percentage of the immigration skills charge paid when requesting the certificate of sponsorship. Unfortunately, the certificate of sponsorship fee is not repayable.
How can OTS Solicitors help your business?
Sponsoring overseas workers can be challenging because of the paperwork involved in sponsoring a skilled worker visa or health and care worker visa holder. That’s why it is so frustrating if a sponsored worker chooses to leave your employment, especially if they are taking up employment with a competitor.
Our business immigration and employment solicitors can help you with:
- Sponsor licence management services for a fixed monthly retainer to reduce the administrative burden of managing your sponsor licence reporting and recording duties
- Assisting with pre-sponsor licence audits
- Sponsor licence applications
- Sponsor licence renewals
- Employment contracts
- Employment disputes
Our goal is to provide a one-stop shop for all your sponsor licence, business immigration and employment law needs.
UK Online and London-Based Immigration Solicitors and Sponsorship Licence Lawyers
For sponsor licence and immigration law advice call OTS Solicitors on 0203 959 9123 or contact us online.
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