Counsel's opinion: can employers have fixed sponsorship policies?

Faced with a dramatic increase in costs associated with sponsoring overseas workers, many businesses are asking if they can implement a policy to determine who they would sponsor and who they would not. However, this approach raises issues around potential discrimination claims. With no clear guidance on this area, a specialist Kings Counsel has shared her opinion on this issue.

Equality Act 2010

In summary, any policy that restricts who a business would sponsor would potentially engage the protected characteristics of race within the Equality Act 2010 and, therefore, could form the basis of a claim for indirect discrimination, she confirmed.

Would such a policy constitute a provision, criterion or practice (PCP)? Our specialist counsel explained that, as the definition of a PCP is broad, it is likely any court or tribunal would find that even a neutrally termed policy containing exceptions would amount to a PCP. This would be applicable whether the policy was written down, public or private, or simply an informal position.

The matter would hinge on the final assessment: whether there is objective justification and proportionate means of achieving a legitimate aim. In her assessment, basing any policy on costs alone would not be sufficient. There would be a requirement to have significant additional justification for any policy. While a policy that would be considered proportionate is achievable, a detailed assessment would be required of the specific business and its industry.

The only way to avoid risks of a discrimination claim, she added, is to have a policy that confirms that the business will sponsor any individual who requires sponsorship, subject to their qualification. The increased salary threshold to £38,700 may, for some, achieve this objective given the inability to sponsor anyone below this threshold. This is not relevant to the seniority of the role as currently the majority of jobs are open for sponsorship based on skill level.

Tread carefully

For businesses that wish to apply screening of who would or wouldn’t be sponsored, detailed legal advice should be sought. All businesses that have the ability to sponsor migrant workers should carefully review their hiring practices and policies, as the potential costs of getting this wrong could be severe. Careful and advanced planning is needed as the question of sponsorship often does not arise until after a candidate has been offered a role when sponsorship is assumed as forthcoming.

Any detailed answers to this question would depend on the nature of the advice received and its specificity to a business. However, what is clear is that there is a need to tread carefully in this area, and seek detailed advice and guidance before implementing any form of restrictions on sponsorship.