Action for employers with non-EU workers as new quota bites

The Coalition government proposes to limit non-EU workers coming into the UK under Tiers 1 (which allows entry to highly skilled individuals) and 2 (which allows entry to skilled workers with a job offer from a UK 'sponsored' employer) of the Points Based System from April 2011. Until then, from 19 July, there is an interim limit.

Sponsoring employers will receive a letter telling them what their quota of non-EU workers is. If they employ more than the quota, they may have to terminate the employment of some of their non-EU workers (even if only by failing to apply to extend the period for which the worker can continue to work legally in the UK).

Where the employer must make a choice between two or more non-EU workers, they could find an unfair dismissal claim made against them unless they act properly. They must therefore be able to:

• Produce reasonable and lawful business reasons for a decision to dismiss, such as the employee's performance, knowledge, skills and experience, attendance, time-keeping, disciplinary history, etc.
• Show that they have followed a fair and reasonable procedure, which does not unlawfully discriminate against a particular worker or group of workers - for example, on grounds of race or sex.

These are new and untested circumstances in which to have to make dismissals, so sponsoring employers may wish to review their paperwork, policies and procedures to make sure that:

• New employees are clear that the employer may decide not to apply to extend their permission to work in the UK once the initial permission has expired.
• Employers have as much discretion as possible when deciding whether to apply to extend an existing worker's permission to work in the UK.

Recommendations
Employers should:

• Review application forms, offer of employment letters and employment contracts for new employees to ensure they make the employer's powers and duties clear in relation to workers' permissions to work in the UK.
• For existing employees, review employment documents to ensure it is clear what the employer can or cannot do in relation to applications to extend a worker's permission to work in the UK.
• If dismissals are required, or in doubt about what they can or cannot do, consider taking specialist legal advice.