Getting job descriptions right
In my recent article about the need to take sponsor licence compliance obligations seriously, I analysed the case of Prestwick Care, a large care home operator in the North East, which lost its High Court challenge of the Home Office’s decision to revoke its sponsor licence.
It employed 219 sponsored workers out of a total headcount of 857 staff, and was found to have defaulted in a total of 31 instances across seven categories of compliance duty. Amongst these defaults were five employees who were sponsored as Senior Care Assistants under SOC code 6146, but whose actual duties did not match the job descriptions contained in their certificates of sponsorship. This led to a finding that they were not occupying genuine vacancies, a mandatory ground for revocation.
Hot on its heels comes another case, Supporting Care, which had an opposite result with the High Court quashing the Home Office decision to revoke its sponsor licence. But sadly this is not a major cause for celebration, as I explain below.
Supporting Care is a large domiciliary care provider registered with the Care Quality Commission, which has contracts with the NHS and local authorities allowing it to provide homecare to vulnerable and elderly individuals across several London Boroughs. Before revocation it had 68 sponsored workers out of a total workforce of 162 employees.
The Home Office visited the company’s premises on 3 April 2023 and on 11 May 2023 suspended their sponsor licence on the basis that they had identified defaults in respect of six categories of compliance duty. They issued a notice of revocation on 26 June 2023 but by the time the case came up for hearing in November 2023 the breaches had been whittled down to one area, relating solely to one employee, who was sponsored as a Senior Care worker.
Having interviewed the employee, the Home Office were not satisfied that her actual duties matched the job description on her certificate of sponsorship (CoS) or that her role represented a genuine vacancy, for example because the CoS contained an exaggerated or incorrect job description. Either of these breaches gives rise to a mandatory ground for revocation.
So the entire basis for revocation depended on a detailed analysis of the job description in her CoS and the Home Office’s assessment whether it matched her actual duties or was exaggerated or otherwise incorrect.
There were eight duties listed on her CoS and the employee was found not to be undertaking two:
The Court was faced with the task of deciding whether ‘six out of eight’ meant that her actual role did not match her CoS job description, thereby triggering mandatory revocation.
In trying to find a balance between the inherent failings of a purely literal and strict approach compared with an interpretation that was too broad and allowed for substantial or significant variances, it found that:
“… the question of whether the role undertaken by [the employee] “matched” her CoS cannot be properly decided simply by counting off from the CoS list of duties, but instead requires a qualitative assessment of the duties.”
After carrying out an “objectively undertaken qualitative assessment” it concluded that the two “missing” duties were substantial and/or significant and her role did not therefore match her CoS. The mandatory revocation was therefore likely to be upheld by the Court.
However that was not the end of the matter. One of the grounds of challenge that Supporting Care had argued was that the Home Office had failed to conduct an adequately reasoned global assessment of all relevant considerations in deciding whether to revoke or downgrade the sponsor licence. In plain English, they had not considered what impact the revocation would have on the other 67 migrant workers and their families, the vulnerable individuals under care, the company itself and the wider industry. They had also failed to consider whether revocation was a reasonable and proportionate response to a single breach of compliance duty relating to the role of a single employee from a workforce of 162 workers.
This “impact” argument found favour with the Court, who used it to justify the quashing of the decision to revoke the licence. The policy that said that revocation was mandatory even for a single event of default was, in the circumstances, too harsh an outcome.
This was an exception to the normal rules, however, based on (1) the particular circumstances of Supporting Care and (2) that the Home Office had failed to explain why it was reasonable and proportionate to revoke their sponsor licence. The Home Office will no doubt be vigilant in the future in addressing “impact” arguments whenever a licence holder is litigating a revocation decision.
What is abundantly clear here is that the Home Office is prepared to pursue enforcement action even when there is only a single default of a mandatory ground.
Prestwick Care had also put forward an ‘impact’ argument, but had failed because it didn’t have the foresight to present the argument before the revocation decision had been made, a vital omission when launching a judicial review. And it is no surprise that its numerous breaches of sponsor duties, when considered against the single breach by Supporting Care, justified the revocation of its sponsor licence especially when the judge presiding over its case found that Prestwick Care“… could not be trusted to comply with its duties as a sponsor”.
Reports are rife that the Home Office has increased compliance enforcement action in the care sector and they are paying particular attention to whether the actual duties performed by sponsored care workers ‘match’ the job descriptions in their CoS.
Alongside the enforcement action, the Home Office is also demanding more detailed information when sponsors apply for Defined certificates of sponsorship (necessary when intending to sponsor a migrant worker who is living overseas). Amongst other things, they are asking for details of the business rationale, copies of current contracts to demonstrate that the business has genuine vacancies, staff rotas and copies of employment contracts.
So, what can we take-away from these two cases and the increased compliance enforcement?
Firstly, take your compliance duties seriously. The Home Office have a very low threshold for initiating enforcement action.
Secondly, pay particular attention to your choice of SoC code, to make sure that it is the most appropriate in the circumstances.
Thirdly, draft your job descriptions carefully and make sure that they are an accurate reflection of the actual duties of the job roles to be undertaken by the migrant workers.
Fourthly, be careful when entering the job description into the CoS – especially when entering the summary, which is limited to 1,000 characters and often is not enough to contain the entire job description.
Finally, and most important of all, review your existing choice of SOC codes and compare the actual duties of each sponsored worker against their job description contained in the CoS, and take remedial action in relation to any non-compliant job descriptions.
Before you embark on the journey to become a sponsor, it is essential that you ensure that you have the necessary people, policies and procedures in place to lawfully maintain the licence at all times during its life-span. For those already in possession of a sponsor licence (even if you do not currently have any sponsored individuals working for you), ensure that you are regularly checking that you are satisfying all of your sponsor licence obligations. We can draft and review policies, train staff, conduct compliance audits and even act as your Level 1 User to make sure you never suffer a similar fate to Prestwick Care or have to go through the pain and expense of the High Court legal action that Supportive Care had to endure. If you need guidance, help or reassurance on sponsorship, please get in touch with the Michelmores Immigration team.
