What is supplementary work?
Candidates sponsored under certain routes, including Skilled Workers, can take on additional work alongside their sponsored job. This work will be separate from the full-time job and must be done outside the working hours of the sponsored job. The work can be taken up with any employer as long as it follows the conditions of supplementary employment defined by the Home Office.
What are the changes for supplementary employment from 04 April 2024?
The Home office has updated the interpretation of supplementary employment (other than the job for which the person is being sponsored), permitting the below employment to be undertaken as additional work.
- The role listed in the Appendix Immigration Salary List or
- The position is within the same profession and at the same professional level as the job for which sponsorship is provided (for all non-skilled worker routes where supplementary work is permitted) or
- If the individual holds permission as a Skilled Worker, the job falls under an eligible SOC 2020 occupation code as specified in Tables 1, 2, or 3 of the Appendix Skilled Occupations (effectively permitting additional work in any occupation eligible under skilled worker)
This would mean that more skilled workers will want to take supplementary work as they can take work in any occupation list eligible for skilled workers and not be limited to the same occupation code. The additional employment is limited to a maximum of 20 hours per week and must be carried out during times that do not overlap with the hours the individual is contractually obligated to work for the sponsor in the role for which they are being sponsored.
For work routes other than Skilled Worker where supplementary employment is permitted, this is only if the occupation is listed on the Immigration Salary List or is within the same profession and at the identical professional level as the role for which the individual is sponsored.
Is working overtime for the current sponsor classified as supplementary employment?
The guidelines specify that any overtime performed with the sponsor and within the scope of the employment detailed on the worker's Certificate of Sponsorship (CoS) will not be deemed supplementary employment but rather form part of the worker's sponsored role.
It is crucial for sponsors to recognise that all overtime within the sponsored employment must adhere to the Working Time Regulations and fulfil the appropriate salary requirements associated with the sponsorship route.
What if someone wants to work more than 20 hours in another job or occupation code?
Supplementary work can only be taken for the same occupation code and level of employment without needing additional sponsorship. If a migrant worker wants to work for more than 20 hours on the second job, it will be classified as secondary employment, and they must apply to update their visa to be sponsored for both jobs. They will need a new certificate of sponsorship from the second employer and make an application to be sponsored for both jobs.
What checks are required for supplementary employment?
When an organisation employs an individual sponsored by a different employer for 'supplementary employment,' it is crucial that the organisation conducts a right to work check, following the appropriate guidance, before the individual's employment with them begins.
The previous guidance advised employers to verify that "the individual is able to carry out the job being offered." The recently updated right to work guidance provides detailed steps that employers should follow to confirm this information.
This process requires the employer to:
- Conduct a right to work check to ascertain if the individual is eligible for supplementary employment. This might involve requesting a share code from the individual and performing an online verification via the Home Office website. The results of this check will confirm the individual's visa expiration date and any employment restrictions they face, such as being permitted to work only for their sponsor in addition to supplementary employment.
- Secure a letter or alternative form of verification from the individual's sponsor, confirming that the person is still employed by them, detailing their job role and occupation code, and specifying their standard working hours.
- Inquire whether the individual is engaged in any other supplementary employment with a different employer to ensure they do not exceed the 20-hour weekly limit for supplementary work.
In addition to this, we would also recommend the organisations impose a contractual obligation on the employee by adding additional clauses on the supplementary employment contract to report any changes to their sponsored employment or if they take other supplementary employment that may impact the eligibility to undertake or limit the hours that may work.
Given the recent increase in civil penalty fines for employing illegal workers, which now reach up to £60,000 per violation, the detailed guidance on conducting right-to-work checks for supplementary employment is a positive development for the affected sectors and any employers dealing with this issue.
How can our immigration solicitors help?
Our legal team is experienced in guiding both employers and individuals on matters concerning supplementary employment and right-to-work verifications. Should you need consultation on these topics, our immigration experts are at your service. Do not hesitate to reach out to us or fill out our enquiry form for further assistance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.