Recent changes to the Home Office’s Tier 2 and 5 Guidance for Sponsors indicate that sponsors of overseas workers entering the UK may expect a greater degree of scrutiny in future – including a review of the sponsor’s record of preventing and dealing with discrimination.
The latest changes, published on 17 July 2019, apply immediately and clarify that the Home Office may, should the circumstances warrant it, revoke a sponsor licence if a sponsor behaves in a manner that is “not conducive to the public good”. The Home Office will also refuse to grant a sponsor licence on the same grounds.
The changes were made in response to concerns of extremism, and both fostering hatred and glorifying terrorism are categorised as offending behaviours. In addition, rejecting the rights of, or discriminating against, groups or individuals on the basis of one of the nine protected characteristics contained in the Equality Act 2010 is also included in the Home Office’s list of behaviours that are not conducive to the public good.
A prudent employer is unlikely to have ‘fostered hatred’ or ‘glorified terrorism’. However, sponsors may be more concerned at the prospect of the Home Office scrutinising their track record on discrimination – ever more so in light of the fact that an employer is liable for the discriminatory actions of its employees, irrespective of whether the employer condoned such behaviour.
The requirement that sponsors comply with UK laws, including the Equality Act, is nothing new. A Home Office compliance audit will often include an assessment of a sponsor’s policies and procedures alongside a review of sponsored migrants and associated record keeping. However, the latest changes to the sponsor guidance may indicate that the Home Office intends to apply a greater degree of scrutiny to the processes and procedures a sponsor follows when complaints of discrimination are made.
The Home Office has given no guidance on how it will assess a sponsor’s record and whether it will require sponsors to provide detailed information on the steps taken to avoid discrimination. Sponsors who are embroiled in claims in the employment tribunal should be mindful that employment tribunal judgments are now public in all but the rarest of cases and are routinely posted online.
Gender pay gap information (and ethnic pay gap information, if published) is publicly available and can be easily located by the Home Office. Public and media reports could also be considered and interest in discrimination cases has been heightened in recent times with the #MeToo movement and growing opposition to the use of non-disclosure agreements focusing the spotlight on employers’ treatment of allegations of sexual harassment and discrimination. Data from other government departments may also be used if the current increase in data sharing within the Home Office continues.
A sponsor should have a robust equality and diversity policy in place that details the standards of behaviour required of employees. This should be supplemented by mandatory regular training and ‘refresher’ courses. All allegations of discrimination should be thoroughly investigated and, if well founded, swift action should be taken against the perpetrators.
While such an approach is the mainstay of good internal governance, and may give an employer a means of defending discrimination claims, organisations now have additional impetus to ensure their policies and procedures are always followed. A failure to do so could result in drastic consequences for both businesses, which may lose critical personnel, and sponsored migrants who may face having to find a new job with a different sponsor or losing their right to work in the UK.
Maria Krishnan is a senior associate at Magrath Sheldrick