It is easy to focus only on the employment-related aspects of industrial action, but what about the immigration issues? This article sets out what and when sponsors need to report if sponsored workers are engaging in industrial action. As a general update, we have also flagged the new requirement for sponsors to add their company registration numbers and the national insurance numbers of all key personnel on the Sponsor Management System.

Sponsor licence reporting obligations

Depending on the circumstances, employers who sponsor migrants under a sponsor licence may be under certain reporting obligations if sponsored workers engage in industrial action. If there is an obligation to report, a Level 1 User on the sponsor's Sponsor Management System (SMS) must make the report no later than 10 working days after the relevant change or event. Once a report is made, the Home Office will consider whether further action is required.

Unauthorised absences

A sponsor must report if a sponsored worker is absent from work without their permission for more than 10 consecutive working days.  This would include any absences due to industrial action.  Our interpretation of the relevant guidance is that "consecutive working days" means consecutive days on which a worker was scheduled to work.  So if a worker works on a shift pattern basis, their 10 consecutive working days' absence continues to accrue even if there are authorised non-working days in between.

Absences without pay or on reduced pay

The general rule is that a sponsor must stop sponsoring a sponsored worker if they will be, or have been, absent from work without pay or on reduced pay for more than 4 weeks in total in any calendar year.  This applies both where a sponsored worker is absent from work for a continuous period of more than 4 weeks, as well as if they have a number of shorter absences which total more than 4 weeks in aggregate. The 4 weeks is calculated based on the sponsored worker's normal working pattern. 

However, taking part in legally organised industrial action is considered a valid exception to the general rule.  This means that there would be no requirement to stop sponsoring a worker if the reason for the absence is lawful industrial action, but a sponsor is still required to report it on the SMS.  It is therefore very important to consider whether the industrial action in which the sponsored worker is or had been participating was lawful (for example, whether the union held a properly organised ballot and gave the correct notice for balloting members).

Where a sponsor ceases to sponsor a worker, the Home Office will issue the worker with a curtailment notice and the worker will be given 60 days to make an application to vary their leave (e.g. switch to another visa route, if they are eligible) or change their sponsor employer in the UK.  To mitigate against an Employment Tribunal claim in relation to a worker's dismissal, the sponsor employer should also follow a fair process in relation to the worker's dismissal.  

Where an employee is dismissed because a sponsor cannot continue to sponsor them, this would likely be a potentially fair reason for dismissal (namely, illegality).  This is because their continued employment would be in breach of immigration legislation.  However, an employee's dismissal could still be procedurally unfair if a sponsor failed to carry out a fair process before they were dismissed.

Sponsors required to provide further information on the SMS

From 8 October 2023, the Home Office has required sponsors to include the following information on the SMS:

  • the national insurance numbers of the Authorising Officer and Key Contact; and
  • the sponsor's Companies House reference number.

The Home Office has advised sponsors to update this information at their "earliest convenience". Sponsors will be required to include the national insurance numbers of their Authorising Officer and Key Contact when they are replaced and for new Level 1 Users when they are added. These updates should be applied immediately.