2014-Aug 15: Direct employer – Essential Skills and AIPs

Visa Pak 175: Clarification for staff about who is defined as a Direct Employer for Essential Skills and AIP requirements

Visa Paks

15 August 2014

Direct employer – Essential Skills and AIPs

Immigration instructions at WK2(b) state that under Essential Skills work instruction, to apply for an approval in principle or to support a work visa an employer must be the proposed direct employer. A direct employer is usually responsible for such things as:

  • payment of salaries;
  • PAYE tax instalments;
  • conditions of employment;
  • day-to-day supervision of the workplace and the employee.

It is expected that in the vast majority of cases a direct employer would be responsible for all these aspects of the employment relationship.

However there may be instances where a third party undertakes certain tasks. For example, the actual task of payment of salaries may be undertaken by a payroll company, and additional parties may also have responsibilities for health and safety conditions of employment with the employer (e.g. property owners).

The use of the term “usually” allows flexibility for an Immigration Officer to determine the true nature of the employment relationship. It also is not exhaustive, and therefore other aspects of an employment relationship may be considered, such as whether the employer provides the employee with tools, safety gear, uniform and transport.

It is important to note that immigration instructions do allow for recruitment agencies to be able to demonstrate that they are the direct employer of a migrant worker if they are able to provide evidence of good employment and immigration practices.

However, there is a potential risk that must be considered when assessing an employment relationship where the employer will be at arm’s length from the workplace. In such instances it is particularly important that the employer provides assurance that they have oversight of any offsite workplaces. For example, an employer who is part of the ACC Partnership Programme would be able to demonstrate a high level of commitment in this area as it means they are accountable for hazard management with respect to their offsite workers.

Please discuss this advice with staff.

In particular, ensure that staff consider an employer’s commitment to the day-to-day supervision of the workplace and employee when determining whether the employer is the direct employer as required by immigration instructions at WK2(b).