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Education e-briefing: Tier 2 Sponsor Obligations and the Right to Strike

  • United Kingdom
  • Education - Briefings

29-03-2018

A complex and sensitive issue has arisen from the recent industrial dispute between the University and College Union (“UCU”) and 65 high education institutions (“HEIs”) regarding plans to change staff pensions. Members of affected institutions have taken 14 days of strike action in the four weeks to Friday 16 March. A number of those involved in the strikes are sponsored by HEIs as Tier 2 migrant workers. Whilst the way the industrial action has been structured, and the number of strike days which have arisen this year, have not so far engaged the reporting and sponsor duties referred to below, the possibility of further strike action over the next few months means that affected institutions will need to be aware of these issues.

One requirement of sponsoring a Tier 2 migrant is to report non-attendance at work which occurs for ten consecutive days without permission. Additional requirements include that sponsorship should not continue if unpaid absence from work continues for more than 28 days in a calendar year or that the total salary to be paid to the employee falls below the minimum requirement specified by UK Visas and Immigration.

Whilst no staff will yet have been absent for 10 days consecutively, it is important that institutions should monitor this. Reporting those who have missed 10 consecutive days of work will meet the sponsor’s obligations and, in itself, does not require sponsorship to be withdrawn. Either unpaid absence from work for 28 days in a calendar year or salary which will fall below the minimum requirement does oblige an employer to end the sponsorship.

A major difficulty for institutions is that compliance with the immigration requirements is necessary but to withdraw sponsorship of a migrant for their involvement in industrial action would appear to be in violation of their fundamental right to strike and the cause of tension with the rights that employees have to claim unfair dismissal where their employment had been terminated for taking part in lawful industrial action. Other than paying staff whilst they take industrial action (which we understand a number of institutions are currently doing), there appears no other way forward. There have been reports of inconsistent advice from UK Visas and Immigration caseworkers about this issue and UCU has written to the Home Secretary seeking assurances that sponsored migrants should not be dismissed for lawful absence.

There seems no specific consideration at all within the published guidance as to the effect of industrial action on Tier 2 sponsorship to address the concern institutions would feel at dismissing employees for this reason. This indicates to us that the wider consequence of Tier 2-sponsored academics being dismissed for participation in industrial action has not previously been considered by UKVI. We would therefore regard emails stating their position regarding this as not being definitive, or even reliable, statements of policy and suggest the Home Secretary’s reply to UCU may be of greater assistance.

Our recommendation is that affected institutions continue to monitor the attendance of Tier 2-sponsored staff to understand who has participated in the strike, for how many days and whether there has been or is likely to be a reduction in salary which would mean they are to be paid below the required salary. Careful scrutiny and monitoring must then continue should further industrial action take place. It is to be hoped that UK Visas and Immigration will reassess the need to withdraw sponsorship in this circumstance.

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