By Mike Thomson, litigation executive in the Employment and Social Care teams at Royds Withy King (www.roydswithyking.com.)
The UK’s new immigration regime and access to overseas workers is a key concern for care providers, says Royds Withy King’s Mike Thomson.
NEW VISA ROUTE FOR SENIOR CARE WORKERS
On 6 April 2021, the role of ‘Senior Care Worker was added to the Shortage Occupation List (SOL), which reduces the requirements for recruiting migrants from overseas into the role.
The Migration Advisory Committee (MAC), which advises the goverment on UK immigration policy, recommended that a number of care sector roles be added to the SOL to combat the recruitment challenges in the sector caused by Brexit and the removal of the freedom of movement of EEA workers. It has taken over six months, but the role of Senior Care Worker has now been added to the SOL.
WHAT DOES THIS MEAN FOR PROVIDERS IN TERMS OF SALARY AND HOURS?
The minimum salary is now £20,480 per annum or 80% of the going rate for the role, whichever is higher. The going rate for the role is £16,900 per annum based on a 39-hour week and 80% of that salary is £13,520. The minimum amount a Senior Care Worker can be paid is therefore £20,480 as this is higher than 80% of the going rate.
Due to the lower going rate for the role, you could offer contracts with more than 39 hours per week and reduce the hourly rate until the salary either meets £20,480 or the current National Minimum Wage depending on the age of the migrant.
Helpfully, there is no clear definition of a Senior Care Worker, so you have some scope to be quite creative with the duties required. Unhelpfully, the salary must be at least £20,480 regardless of how many hours the employee works, so there is very limited scope for recruiting part-time workers.
It is important to note that the worker will need to actually be working the number of hours that they are contracted to work and the duties need to clearly relate to a Senior Care Worker as opposed to a Care Worker (which isn’t an eligible role). You will need to demonstrate this to the Home Office in the event of a compliance visit.
For example, it is unlikely that you will be able to legitimately employ a migrant as a Senior Care Worker that has no prior experience working in care. The individual will need to demonstrate that they undertake more senior duties, such as delegating work, organisation and supervision of more junior members of the team and taking the lead on more complex clients and/or procedures. The difference between the two roles will depend on the circumstances of the particular provider, but it is very important that there is a clear distinction between the two.
Adding Senior Care Workers to the SOL is unlikely to address the endemic issues with recruitment into the sector, but it at least gives you another option to consider.
If you already have a sponsor licence and would like further guidance on recruiting Senior Care Workers, please do get in touch and we’d be happy to help.
RIGHT TO WORK CHECKS
The government has announced that the measures that were in place due to Covid-19 will remain in place until 20 June (rather than 16 May as originally planned). This means that right to work checks can be completed virtually over video and scanned documents can be verified instead of original documents being inspected in person.
In order to complete a valid right to work check, you should review the individual’s identity documents (passport/biometric residence permit) in their presence to verify that they are who they say they are. Normally this needs to be conducted face-to-face and the checker is required to verify that the document looks genuine. However, due to the pandemic this can be carried out over a video call. Employers will not be required to carry out a physical check once the position reverts back.
If you fail to carry out a proper Right to Work Check you could be liable to a fine of up to £20,000 per illegal worker plus criminal sanctions. You could also have your sponsor licence revoked.
EU SETTLEMENT SCHEME
The EU Settlement Scheme is due to close on 30 June, at which point EEA nationals will no longer be able to use their passports as valid identification for a right to work check. From 1 July EEA nationals will be required to demonstrate that they have leave to remain in the UK under the EU Settlement Scheme and to have a biometric residence permit.
Employees will need to apply to the EU Settlement Scheme them- selves using the online service. Employers should send communications out to staff to remind those that need to apply to do so, and that if they don’t they may lose their right to work in the UK.