In recent years, the minimum salary rules for Skilled Workers have increased, leading to concerns for employers who sponsor workers about the affordability of these roles and what their options might be in situations where they cannot afford or justify increasing a salary to meet the Immigration Rules.
The claimant in this case had been employed on a Skilled Worker visa but no longer met the updated salary requirements applicable to his role following the April 2024 rule changes. Although transitional provisions applied, they still resulted in a salary threshold that the claimant’s role did not meet, which meant that he could not lawfully continue to be sponsored in the UK beyond April 2025 unless his employer increased his salary.
Faced with this situation, the employer undertook a series of steps before proceeding to dismissal.
These included:
- holding multiple meetings with the claimant;
- obtaining advice from external immigration advisers; and
- exploring alternatives such as extending the visa for a short period or relocating the claimant within the wider company. One option involved relocation to Ireland, which would have enabled the claimant to continue working for the organisation outside the UK. However, this option was declined by the claimant.
A formal process was then followed, including a meeting to discuss the claimant's visa status and the potential termination of employment, written confirmation of dismissal and a right of appeal. The claimant was dismissed on the basis that he would no longer have a lawful right to work in the UK once his visa had expired. He raised an unfair dismissal claim against his employer.
The Tribunal dismissed the claim on the basis that illegality, including the loss of the right to work, can constitute a potentially fair reason for dismissal. It accepted that the claimant’s continued employment after the expiry of his visa would have been unlawful, and that this formed a legitimate basis for termination.
In the judgment, particular weight was given to the fact that the underlying cause of the dismissal was a change in government policy, namely the increased salary thresholds, rather than any act or omission on the part of the employer. It was acknowledged that the cost of any extension was not viable and a decision to dismiss would have been taken at a later stage if the claimant no longer had a right to work in the UK.
The decision also highlights that reliance on illegality as a reason for dismissal does not remove the requirement to follow a fair dismissal procedure. In this case, the Tribunal was satisfied that the employer had acted reasonably in all the circumstances, noting the extent of consultation with the claimant (starting four months before the expiry of his visa), the efforts made to understand the claimant’s immigration position by taking external advice throughout the process and the consideration given to potential alternatives. The judgment also commented that it would have been "unlawful and unethical" to increase the claimant's salary to bring him within the scope of the transitional salary thresholds, and that it would have been unfair on the claimant's colleagues for him to be paid more than them in the same band.
Key takeaways
So, in light of this case, what should employers do in this situation?
Employers must ensure that employees have a valid right to work at all times, but they must also approach any resulting dismissal in a procedurally fair manner. This includes taking reasonable steps to consult with the employee, obtain appropriate advice and consider whether any alternative arrangements could avoid termination.
From an employee perspective, the case is a reminder that refusing reasonable alternatives, particularly where they would preserve employment within a wider organisation, may potentially weaken the prospects of successfully challenging a dismissal.
Overall, the Tribunal’s decision reinforces that dismissals arising from immigration rules can be fair. However, they must be handled with a structured and transparent process. As immigration rules continue to evolve, with potential further changes being announced by the Government later this year, this case underlines the importance for employers of taking proactive and well-documented steps when managing changes that affect employees’ right to work.
*See here the case.
