We recently received an enquiry from a care provider that has been engaging a female care assistant through a temporary staffing agency. It has come to light that this worker holds a sponsored visa, and the company sponsoring her appears to be subcontracting her services to the agency, which manages her shifts.
The care provider sought clarification on the legality of this arrangement and whether they could be held responsible for inadvertently facilitating illegal employment, despite the worker’s engagement through an agency.
This enquiry highlights several concerns. Firstly, it is unlawful to sponsor an overseas worker and then subcontract their employment to a third party, in this case, a staffing agency. The sponsor is obligated to provide the required hours to meet the minimum salary requirement, which is £20,960 for a health and care worker visa.
In this case, the sponsor is not offering any hours to the visa holder; instead, they are subcontracting the worker to a third-party agency. This represents a breach of their obligations, and the visa holder is consequently working unlawfully.
The question then arises as to whether a care provider is responsible for ensuring right-to-work checks are conducted on temporary workers hired via an agency. To a certain extent, the answer is “yes”. The agency is technically the employer, and therefore responsible for carrying out right-to-work checks, however, CQC Regulation 19, mandates all registered care providers to ensure that all employment checks, including right-to-work checks, are thorough and satisfactory, including when conducted by a third party.
In light of this, we strongly recommend that care providers conduct their own right-to-work checks for agency workers. To do this, you should request a “share code” from any agency workers holding a working visa. Share codes can be obtained via the visa holder’s UKVI account and remain valid for 90 days.
To verify the right-to-work status of the worker, you will need to enter their share code and date of birth into the Home Office’s “Online Employee Checking Service” at http://www.gov.uk/view-right-to-work.
This will generate a Profile Page for the Visa Holder, which will indicate any restrictions or limits on their right to work. For example, the Health and Care Worker visa profile pictured states that the visa holder has permission to work in the UK until 14th, May 2025, provided they work for the sponsoring employer. It also specifies that the visa holder can work up to 20 hours per week in a part-time job outside the hours of their main employment.
We recommend retaining copies of visa profiles as evidence that you have conducted right-to-work checks, or at the very least, obtaining evidence or a written warranty from the agency confirming the completion of necessary checks on the agency workers you hire.
Lastly, if you suspect that your agency’s staffing arrangements may violate immigration regulations, consider reporting the situation to the Home Office.
SESCA will be offering a FREE international recruitment legal advice line from the 15th of January to the 15th of March 15, 2024, providing you with an opportunity to consult with a leading immigration law expert for up to half an hour. For more information, click here.