As the summer months approach, London will see a new level of buzz and activity. Royal Ascot with all its glitz and glamour is just around the corner. The Wimbledon Tennis Championship will follow swiftly thereafter. And then of course there is the shopping. The summer collections are being dressed in the windows of Harrods and Selfridges as we speak.
Against this backdrop of the Great British summer, there is a potential legal snake, poised and ready to strike. International families and business owners will descend upon the UK and will likely be accompanied on these trips by their household staff and personnel: the modern-day entourage. A fair amount of planning goes into these visits. Everything from flights and hotels to visas and ETAs needs to be arranged. But one key detail is often overlooked and the legal and reputational issues that follow can be devastating.
The issue
The legal and reputational issues all relate to immigration, employment rights and the interplay between these two areas and the concept of modern slavery (also known as modern day slavery).
When you hear the phrase ‘modern slavery’, certain images may be conjured up in your mind. Images that belong on a charity donation page, not on the paved streets of Mayfair and Knightsbridge. However, the term ‘modern slavery’ means so much more and is significantly more nuanced. A personal chef that works longer than usual contracted hours (so that their effective hourly rate is lower than the National Minimum Wage) may be considered a modern-day slave. A harsh term to hear but accurate none the less. A domestic employer who safeguards all their domestic workers’ passports by placing them in a personal safe may run into some difficulties here. A further issue is the notion that visas are not required for personal staff. Many a family have arrived in the UK and then had to watch, with horror, as their three nannies, two chefs and two personal assistants be denied entry and turned away. It is not pleasant – from both the staff and employer’s perspective.
It is common for foreign families or individuals to bring trusted, long term personal and domestic staff (cooks, chauffeurs, nannies, cleaners, etc) with them to the UK regardless of whether the move is temporary or permanent. As indicated above, before embarking on international transfers of support staff it is important to understand the associated UK immigration and employment law implications.
Visas
Support staff need their own visas so that they can enter the UK and work for their families in private households; standard UK visitor visas prohibit any form of employment in the UK – even if the employment is with a non-UK employer. The Home Office issues about 18,000 Overseas Domestic Worker (ODW) visas for those in private households each year. Around 200 visas are issued annually to those working in diplomatic households.
The ODW visa will allow domestic workers to work in the UK for their employer or immediate family in their private home for up to six months. Before the end of the six months, the worker must leave the UK and, if required, re-apply from outside the UK. This visa cannot be extended whilst the worker remains in the UK.
Employment
Generally, an employer who engages an individual to work for them in England or Wales must follow the mandatory employment protections, even if an employee relocates from a different country to the UK. Employers must also give an undertaking to the Home Office that they will abide by UK employment laws when making an application for an ODW visa.
This means that domestic workers will be entitled to receive:
- National Minimum Wage;
- statutory holiday entitlements (5.6 weeks paid holiday per year if they work on a full-time basis);
- minimum rest breaks along with the right not to be wrongfully dismissed (e.g. to receive their statutory notice period) if they have over two years’ service (which for the purposes of the law may include periods working abroad immediately before coming to the UK);
- the right not to be unfairly dismissed (which means the company needs to have a fair reason for dismissal and follow a fair process for dismissal);
- to be protected from discrimination that takes place because of their age, race, sexual orientation or because of a disability (for example); and
- to ensure that fair processes are followed when dealing with grievances or disciplinary issues.
All employees are entitled to receive a written statement that sets out certain key terms of their employment. This usually stands as the employment contract and clarifies the expectations and entitlements of the employee in the UK.
Conclusion
The Labour government has introduced changes to the Immigration Rules as well as employment laws to tackle visa abuse, migrant worker exploitation and modern slavery. If you as an employer become aware that your worker is not abiding the conditions of their visa, depending on the circumstances, it is advisable to report it to the Home Office and/or to the police if there are welfare concerns. Seeking specialist advice can also prevent any legal issues arising and protect the family or employer from the reputational risk of being labelled ‘an abusive employer’.
Get in touch with our Immigration team for further support.
