A recent Employment Tribunal decision is a useful warning for employers who sponsor overseas workers, particularly in the care sector.
In G. Gharabli v Cedar Hope Care Services Ltd, the Tribunal considered a pay arrangement under which overseas support workers on Skilled Worker visas were paid £12.31 per hour, while UK-based support workers who did not require sponsorship were paid less. At the relevant time, the claimant was paid £11 per hour, while overseas colleagues in support worker roles remained on £12.31 per hour.
The employer’s explanation was straightforward. Sponsored workers had to be paid at the minimum level required under Home Office rules. The pay difference, it said, reflected the need to comply with immigration rules, not discrimination. It also argued that overseas workers had additional responsibilities.
The Tribunal was not persuaded.
Although the Tribunal accepted that compliance with immigration salary requirements was a legitimate aim, it found that the employer had not shown that paying non-sponsored workers less was a proportionate way of achieving that aim. The Tribunal found that, during the relevant period, sponsored and non-sponsored support workers were essentially doing the same work. It also noted that the employer had produced no real evidence to show why matching the lower-paid workers’ pay to the sponsored worker rate would have been financially prohibitive.
The indirect race discrimination claim therefore succeeded.
Although this is a first-instance decision and therefore not binding, it is important because it does not say employers can never pay sponsored workers more. Nor does it suggest that Home Office salary thresholds are irrelevant. The point is more practical: where workers are doing substantially the same job, an employer needs more than “the immigration rules made us do it” if the result is a lower rate of pay for non-sponsored workers. The employer must be ready to explain the pay structure, evidence the business rationale, and show that it considered less discriminatory alternatives.
The case also carries a separate reminder for regulated employers about how health and safety concerns should be handled. The claimant succeeded in a whistleblowing detriment claim. Her protected disclosures included concerns about a service user being locked in a property and rubbish bags being left in a garden, creating potential pest and fire risks. The Tribunal found that these were qualifying disclosures relating to health and safety, particularly given the vulnerability of the service users.
The financial consequences were not enormous, but they were real. The claimant was awarded £14,174.30, including £10,000 for injury to feelings.
Steps employers should take
Audit pay differences between sponsored and non-sponsored workers carrying out similar work.
Check whether any additional duties relied upon as justification for a pay differential are genuine, documented and consistently performed.
Do not assume that immigration compliance is enough to justify a pay gap.
Keep evidence of the financial and operational rationale for pay structures.
Consider whether a less discriminatory alternative, such as aligning rates of pay, has been assessed.
The broader message is simple. Immigration compliance and employment law compliance need to be considered together. Employers who focus on one and overlook the other may find themselves exposed.
If you'd like support on any areas around sponsoring overseas workers, please contact our expert immigration solicitors.
