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Dismissing a Foreign Worker on a UK Visa – Risks and Mitigation Strategies

dismissed employee
Dismissing a Foreign Worker on a UK Visa – Risks and Mitigation Strategies 

Dismissing a Foreign Worker on a UK Visa – Risks and Mitigation Strategies

Following Brexit, more UK employers are employing non-UK nationals under permitted visas, often under the skilled worker visa scheme. But what happens when an employer needs to terminate the employment of a foreign worker? This process carries its own unique set of challenges and risks, and frequently we’re seeing dismissed workers claiming discrimination in their employer’s actions.

In this article, we’ll consider a scenario where Employer A seeks to dismiss Employee B for reasons of poor performance.

Note that only UK and Irish citizens (or those with a legal right to live and work in the UK) may be employed without needing a work visa. Note also that to employ foreign workers under a UK work visa, an employer must first be an approved sponsorship provider.

Understanding the legal landscape

It’s important to remember that employment laws apply to all employees in the UK, irrespective of their nationality or immigration status. The law safeguards employees from unfair dismissal and discrimination. Therefore, as would be the case with a UK or Irish employee, an employer must ensure that the dismissal is fair and must follow a proper procedure, adhering to ACAS guidelines.

Unique Visa-Related Risks

Dismissal of a foreign worker on a visa introduces additional complications. Sponsoring employers have obligations to the Home Office. When a sponsored worker’s employment ends, they must promptly report it to the Home Office.

Further, the dismissal can dramatically impact the worker’s visa status. In the example, Employee B, a foreign worker working under a Skilled Worker Visa, has 60 days to find a new sponsoring employer or must leave the UK.

This immediate pressure on the employee can cause unforeseen complications for the employer, particularly if the dismissal process extends beyond this time frame.

How can Employer A mitigate the risks

The main risk mitigation is to make sure that the proposed dismissal is procedurally fair and is a reasonable action given the circumstances.

In the case of poor performance, we would expect to see a proper performance management process, which normally includes prior performance warnings and time (and support) to improve.

What if the employee doesn’t have enough service to bring an unfair dismissal claim?

At the time of writing, employees need 2 years continuous service to bring an unfair dismissal claim in the UK. However if Employee B is able to show that they have been subject to discrimination, they can bring a discrimination claim, which carries no upper limit on compensation.

Remember that nearly all foreign workers will have the protected characteristic of race, and the obvious claim would be that performance criticisms were over-egged because their manager was prejudiced against foreign workers.

This claim won’t automatically succeed – tribunals will look at the facts and the procedural fairness applied.

It is however important for employers to be absolutely certain that a decision to dismiss is untainted by any form of discrimination, and is procedurally fair.

This doesn’t mean that allowances can’t be made for shorter service employees – myHRdept will advise on how processes may be shortened without elevating the risk of procedural unfairness to a level Employer A is uncomfortable with.

Given the cost of workplace visas (see JCHR’s article about this here) most reasonable employers will make genuine efforts to help their foreign workers achieve the required performance standards, otherwise a lot of investment goes down the drain.

How would Employee B’s situation change if their employer was making them redundant?

Where redundancies are proposed, the employer should follow a thorough consultation process and consult with Employee B – consultation involves explaining the situation and considering alternatives to redundancy (see our earlier article here).

What other mitigation steps could Employer A take?

Aside from following a fair process and ensuring a discrimination-free decision making process, Employer A might consider:

Support for Visa Transition:

Where possible, employers can support the dismissed worker in their transition. This could include providing references more promptly, offering outplacement support, or trying to find suitable alternative employment with another sponsoring employer in Employer A’s network.

Take HR advice

Given the complexities, employers should seek legal or good quality HR advice, e.g. from myHRdept. This will help ensure compliance with employment law and immigration rules. A properly conducted risk assessment should anticipate and help the employer prepare for potential complications, ensuring that both the employer and employee are protected.

By providing the employee access to HR advice, Employee B might be less likely to feel the need to consult a solicitor, reducing the risk of Employer A receiving a speculative claim and of bad feelings

Settlement Agreement:

A settlement agreement can help reduce/eliminate the risk of future employment tribunal claims. Although there are costs involved, many employers will opt to pay a reasonable settlement in exchange of the peace of mind of legal protection, and of not having to go through energy and time-sapping legal claims in the future.

HR support from myHRdept

Our team of HR experts is here to help employers navigate the complexities of HR management. From providing day-to-day HR advice, to guiding employers through more complex employment situations, we offer bespoke solutions tailored to your needs.

If you’re thinking of outsourcing your HR, payroll or employment law needs, why not contact myHRdept? Call us on 01628 820515, email us at enquiries@myhrdept.co.uk to discuss your requirements, or contact us via our website and we’ll call you back.

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