What is really rotten in the state of the British Health Care System?
Do you feel like you have been invited to a new life, with a competitive package of benefits and privileges that seem almost too good to pass up? Are you being pressured to work under conditions that are not outlined in the terms and conditions of your Contract of Employment on the grounds of meeting the ‘needs of the company’ in a manner which amounts to little more than legalised slavery with a, ‘get out of our country’ clause if you question the legality of having to work 11 days straight without a break?
This is a story that we are encountering again & again, often by the same employers who, based on the evidence available we have gathered, seems to have adopted what we are now forced to accept is a legally protected institutional approach to breaching UK Employment Law because it is likely financially viable to do so. This is often presented as a complex issue, although when it is closely dissected, it is clearly little more than just a blatant excuse for abusing the human rights of people who have chosen to bring their expertise to the UK, following the mass exodus of European carers following the disastrous abomination that amounted to Brexit.
This ‘project,’ we now know has been demonstrably shown to have been a catastrophic failure for the country. The numbers are still open for debate, but it is generally agreed that the cost of Brexit to the UK runs to billions of pounds that generations way beyond ours will be forced to accept liability for. This was the prevailing mentality that dominated the minds of those who had such wealth that they saw Brexit as little more than a ‘good business opportunity.’
Following the impact of Brexit, the shambolic final antics of the last gasp of a Conservative government in the process of imploding was to alter the immigration rules, by issuing ‘The Statement of Changes to Immigration Rules: HC 1019, 24 January 2022 which came into law on 15th February 2022 [1]. This knee jerk and poorly constructed amendment to existing immigration rules was an attempt to try to slow the massive haemorrhaging of staff from the social care sector. It also sought to mitigate the additional vacancies which arose after the COVID-19 pandemic swept through care homes killing thousands of residents and patients. By handing the government’s role to, neoliberal economics to miraculously find an alternative to replace it, the government once again relied on market forces to avert a catastrophe. With that, we inherited the world of Certificates of Sponsorship.
So what is a Certificate of Sponsorship, in legal terms? The gov.uk website defines a Certificate of Sponsorship for employers as, ‘an electronic record, not a physical document. Each certificate has its own number which a worker can use to apply for a visa.’ [2]
Further, the certificate obligates employers to:
Ensure jobs are genuine and meet skill thresholds
Pay appropriate salary levels under visa rules
Keep accurate employment records
Assign CoS only where requirements are met
Comply with monitoring and reporting duties [3]
The employer pays a fee which is determined by the deemed skill level of the worker and this is ultimately tied to the employee meeting the terms and conditions of their contract.
Unfortunately, anecdotal evidence is showing us multiple that unlawful and unenforceable express terms including: items which can lawfully be deducted from wages, (breaches of s.13 Employment Rights Act 1996) staff being pressured to work up to 11 days in succession, often over 12 hours per shift ‘to meet business needs’[4]. These are grotesque breaches of s.4, 10 & 11 Working Time Regulations 1998. Annual leave is routinely being refused, or rules governing them are frequently changed or contradictory.
We have even encountered members who have Contracts of Employment that specifically outline that dismissal or even serving notice will amount to the dissolution of the workers ‘right to reside’ and effect their visa status, effectively making them illegal immigrants. This arguably breaches s.2 & 3 Modern Slavery Act 2015. This is reflected in the increase in Home Office action against non-compliant employers [5]. However, it is noticeable that Modern Slavery prosecutions on these grounds remain pitifully low. According to the Worker’s Rights Centre who has obtained statistics from the Quarterly Home Office Sponsorship Statistics (obtained using a Freedom of Information Request), revocations in 2025 reached 3,100, the highest number since 2012 and 33% were in the Human Health and Social Worker Sector [6].
The Certificate of Sponsorship does not guarantee the worker will be issued with a visa, they must still go through the application process, but in theory, it should make their application stronger if they have confirmed employment before entering the UK. It is this which nefarious employers are exploiting and which our members are experiencing and reporting to us, particularly (though not exclusively), in the care sector which remains grossly underfunded and understaffed. The mere fact that the sector is so understaffed seems to make such behaviour more enticing to some employers. Quite literally, employers are using the ‘Certificate of Sponsorship’ system as a ‘cat-of-nine-tails’ to offset employing sufficient staff to run their businesses lawfully.
At present, enquiries from our members in the care sector with issues relating to their certificates (usually along with an additional litany of unlawful, abusive and discriminatory practices) now make up a large number of enquiries for support and representation in workplace disputes. Due to Certificates only being assigned by the Home Office relatively recently, there is scant Case Law which can be referred to for guidance. Two examples of how the courts are interpreting abuse of Certificates are R (Prestwick Care Ltd) v Secretary of State for the Home Department and R (Supporting Care Ltd) v Secretary of State for the Home Department. In both cases, the Employment Appeals Tribunals were clear that the Home Office has no wider legal obligation to consider the impact of a revocation of a Certificate of Sponsorship by an employer, on their employees who may subsequently face deportation [7]. They only need to legally consider whether the terms of the Certificate of Sponsorship has been adhered to.
So what action can employees take if they feel that they are being treated unfairly and that they are being exploited by their employer using their immigration status as a weapon against them?
1. As with all in-work disputes, workers voices are heard most loudly when the number of people complaining are so great that they are simply impossible to ignore. Grievances or Collective Grievances are one option available to employees to try to hold their employer account for any poor practices an employer may be guilty of. This will pressure the employer to address the issue formally and to keep accurate records and minutes which can be used later as evidence if necessary. Workers who are members of the same trade union in significant numbers can wield greater pressure by using the legal expertise of their trade union to tackle the employers malpractice and if necessary bring action against an employer for breaching what amounts to a legal obligation within the remit of a ‘protected disclosure’ as enshrined in s.43B Employment Rights Act 1996.
2. Employees should keep an accurate diary of the actions their employer has pressured them into agreeing to, or the malpractice they have been subjected to, so that when the matter is disputed, any trade union representative will have the best understanding of the primary issues they must address.
3. Employees should, as soon as they start their employment, locate and read the Employee Handbook, which their employer should be able to provide. This will outline the policies that the employer expects their staff to adhere to. Equally though, the employer is also obligated to conduct their business inline with their own policies. Employers who fail to act in line with their own policies cannot sanction staff who are guilty of the same indiscretions.
4. Where a worker is unsure how best to proceed they should contact their trade union if they are a subscriber with one, or seek the advice of ACAS using their Helpline which can be reached on 0300 123 1100.
It goes without saying that whilst all of the above are means to try to pressure errant employers from breaching their obligations under the Certificate of Sponsorship Scheme, any action which could result in dismissal (or sham redundancy) could immediately have implications for an employees visa, but the same huge lack of staff in the sector which leads some employers to believe that they can behave however they please, is the same stick that can be used to beat them with. According to the most recent data provided by the Care Quality Commission’s ‘The State of Health Care and Adult Social Care in England 2024/5 indicates that currently,
‘vacancy rates in adult social care are 3 times higher than those in the wider job market, and worse for homecare than for care homes.’ [8]
This amounts to 111,000 vacancies in 2024/5 [9].
So whilst international recruitment for 2024/5 fell to 55,000 from 103,000 in the previous year, there are still considerable staffing shortages, making it easier for unhappy staff to seek employment with other employers. Whilst this still can be the cause of considerable anxiety in relation to visa’s, it means that there are plenty of vacancies which need filling and not all employers are guilty of the the indiscretions outlined above.
As a final note, just to add an additional complication, whilst trade unions can assist with ‘in-work’ employment issues, only a qualified solicitor who specialises in Immigration Law can advise on purely visa related issues. This can often prove confusing where disputes over employment matters can spill over into visa related issues, but where an employee is unsure, they should seek legal advice from either their union, a local Citizen’s Advice or a solicitor and they should be able to obtain the necessary advice.
The Care Quality Commission Report (CQC) referred to above also highlighted higher levels of bullying and discrimination, within the sector and Employees United Union is committed to tackling these injustices head-on for our members by holding employers who act unlawfully to account, if necessary, by reporting institutional breaches to the CQC who are the regulatory body in Health & Social Care in the UK. We stand with our members ate help them to fight all unlawful actions brought against them by such employers and we will continue to do so using every tool at our disposal and every employment law which applies.
AEB
Links:[1] https://bit.ly/4wObABE , [2] https://bit.ly/4wDYVky , [3] https://bit.ly/3TY1iAb , [4] https://bit.ly/4wGoPnP , [5] https://bit.ly/4wKlsw2 , [6] https://bit.ly/4crHCuS , [7] https://bit.ly/4bvxlh4 , [8] https://bit.ly/4wdeT4a , [9] https://bit.ly/4wfWYKb