What does this mean for employers?

From the 1st January 2021 the government abolished the resident labour market test (RMLT) for Tier 2 Skilled Workers.  For companies that rely on skilled workers from outside of the UK this may be welcome news now that they have increased freedom to employ candidates from anywhere in the world.

Prior to 2021 the RMLT required companies to advertise their roles for 28 days, advertising across a broad range of platforms to ensure the job reaches the widest possible audience offering enabling companies the best possible chance of finding a suitable UK resident or ‘settled worker’ to fill the role.  Once the employer could objectively justify the fair selection process had been exhausted and there were no suitable candidates, they could then apply for sponsorship to hire a non-UK resident worker, providing they already had a sponsor licence, under the Tier 2 General Worker Visa programme.  This system offered UK citizens or ‘settled workers’ preference over international candidates.  This was a long process and left room for manipulation by employers to ultimately reach their desired outcome to hire the candidate they felt was the best person for the job.

New opportunities for skilled workers

The abolishment of the RMLT means that there are new opportunities to hire skilled workers from overseas including access to skilled workers from across Europe that now require visas to work in the UK following Brexit.  Instead, it will now be essential that employers give equal consideration to all candidates regardless of their nationality.

To be eligible for a Skilled worker visa applicants must demonstrate:

Equitable hiring

The overall points-based system set out in the governments visa and immigration policies August 2021 is aimed to treat EU and non-EU citizens equally and to give priority to highly skilled workers and offer UK companies the best chance of hiring the greatest talents.

Whilst the changes to Visas and the abolishment of the RLMT will be welcome news for many employers aiming to attract the best talent for their roles, particularly in sectors where there are a shortage of skills nationally, this does, make way for Indirect Discrimination.

In the absence of a RLMT, employers are unable to select UK nationals or those with existing right to work, above non-UK nationals for roles and unfortunately, financial limitations due to the burden of sponsorship costs will not be enough for employers to justify a reason for prioritising non-UK citizens or ‘settled workers’,  Rejecting a candidate because they do not already have the right to work in the UK will mean this is putting overseas candidates at a disadvantage, because of their nationality and under the Equality Act 2010 this can be deemed to be Indirect Discrimination.  With rising costs of visa fees, up to 15-20% announced this year, this will provide increased hiring challenges to some employers and will not, as the government may anticipate, reduce visa applications.

Employers need a new hiring strategy

In light of this many Employers will need to review their existing hiring policies to be able to objectively justify their reasons for not employing non-UK citizens, beyond simply cost. Ensuring that policies and processes including job ads do not stipulate the requirement for applicants to already have a Right to Work in the UK.  Furthermore, it would be advisable to look at a sponsorship licence as it is likely this will be required for future hires whilst also considering fees that employers are willing to pay for and those that they are able to leave to the applicant and budgeting accordingly.

It is worth noting that despite these changes employers are still required as before to conduct the relevant right to work checks but only at the latter stages of the hiring process in order to demonstrate that this was not part of the decision-making process.

At Talent Toute we can help guide you and provide the best possible candidates for your roles.  Reach us at [email protected].  If you require more specific legal advice then we can also recommend employment lawyers.