Key changes relating to supplementary employment

The Home Office recently published an updated ‘Employer’s guide to right to work checks’. This provides clarification on the requirements relating to supplementary employment. The new guidance updates the conditions that must be satisfied for supplementary employment.

It also details the checks that the employer must make to ensure compliance with the requirements. These amendments will apply to all right to work checks conducted on or after 13 February 2024.

Who can take on supplementary employment?

Under the Home Office guidance, employers may employ Skilled Workers to undertake supplementary work.

Not all sponsored workers are permitted to undertake supplementary employment. The updated Employer’s Guide to Right to Work checks now specifies the routes which enable visa holders to undertake it.

What are the conditions for supplementary employment?

In addition to the job for which the worker’s Certificate of Sponsorship (CoS) was assigned, workers sponsored on the above visa routes are able to carry out supplementary employment, provided it meets all of the conditions set out below.

The job must:

• be listed in Appendix Immigration Salary List (which is replacing Shortage Occupation List); or
• be in the same profession and at the same professional level as the job for which the CoS was assigned; or
• the worker must be a Skilled Worker with a job in an eligible SOC 2020 occupation code listed in Tables 1, 2, or 3 of Appendix Skilled Occupations; and
• it must be for no more than 20 hours per week; and
• the individual must continue to work for their sponsor and any supplementary work must take place outside of the contracted hours for their sponsored employment.

Is working overtime for the current sponsor considered ‘supplementary’ employment?

The updated guidance now clarifies that overtime with the sponsor, and in the employment stated on the worker’s CoS, is not considered to be supplementary employment. It forms part of the worker’s sponsored employment.

Sponsors must be aware that any overtime in the worker’s sponsored employment must comply with the Working Time Regulations, as well as meet the relevant salary criteria of the route on which the worker is being sponsored.

What checks are required for supplementary employment?

A sponsored worker should advise their supplementary employer that the employment is supplementary to the work that they are being sponsored to do.

The employer will need to check that the worker can undertake supplementary employment. The amended guidance now specifies that the employer must carry out a right to work check to ensure that supplementary work is allowed.

The supplementary employer should also ensure that the supplementary employment is compliant. To do so, they should ask the worker to provide a letter or other evidence from their sponsor confirming the following:

• they are still working for their sponsor;
• the job description and occupation code (unless the supplementary employment is in shortage occupation); and
• their normal working hours.

Additionally, the supplementary employer should ask the worker to confirm if they are undertaking any other supplementary employment with another employer. This is to ensure that they do not exceed the maximum of 20 hours permitted per week. The employer should consider asking the worker to provide this confirmation in writing so that it can be placed on their personnel file.

Sponsored workers do not need to advise the Home Office of any supplementary employment they undertake, as long as it meets the relevant criteria. If the worker undertakes additional employment that does not meet the supplementary employment criteria, and they have not been granted permission to allow them to take such employment, then the worker will be in breach of their conditions of stay.

How our Immigration Solicitors can help

Our solicitors are experienced in advising employers and individuals on the provisions relating to supplementary employment and right to work checks.

If you require advice regarding this, our immigration specialists will be able to assist you; please feel free to contact us or complete our enquiry form below.

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