By Evie Breese - 19 September 2024
Kirankumar Rathod approached the Work Rights Centre in October 2023 in a desperate situation. He had been scammed out of tens of thousands of pounds after paying a recruiter in India to secure him a job as a care worker in the UK. But when he arrived, he received no work or pay, leaving him unable to provide for his family and heavily in debt.
Our team of employment advisers, led by Dr Sarmila Bose, have supported him in bringing a case against Clinica Private Healthcare Ltd and its owner to the Employment Tribunal, in a case that has already taken over a year of work. This is Kiran’s journey, his fight against an employer who took advantage of the visa system, and the legal win that could change his life.
Kiran’s journey on the Health and Care Worker Visa
A trained nurse from Gujarat, Kiran came to the UK in May 2023 with his wife and young child. Using his life’s savings, he had to pay £22,000 to an agent in India before Clinica offered him a job and issued a certificate of sponsorship under the Health and Care Worker Visa, a visa category introduced in 2020 to plug labour shortages in the NHS, and later widened to social care. With the certificate of sponsorship, Kiran was able to obtain a valid visa and on arrival signed an employment contract with Clinica for a full-time healthcare assistant role, promising 39 hours of work a week for £23,500 a year.
From the time he arrived in the UK, Kiran was provided with no work or payment from Clinica. He completed an induction day and three days of training, but still, no work was ever offered. Kiran and his colleagues began to fear they had been tricked.
He continued to visit Clinica’s office to request work from them, describing in his witness statement, "I told (the receptionist) the situation was killing me, I could not sleep at night.” Nearing the end of his tether after five months of fruitless attempts to get his employer to honour their obligations, he called Clinica to threaten legal action if nothing was done about the situation. He was dismissed without notice the next day on 8 November 2023.
The Employment Tribunal case and Interim Relief
Days after he was dismissed, Kiran contacted the Work Rights Centre and instructed our employment legal team to act for him. We filed a claim to sue Clinica for automatically unfair dismissal for whistleblowing, unpaid wages (including unpaid notice pay and unpaid holiday pay), and breach of contract, and put in an application for interim relief.
Interim relief is a type of remedy available for claimants in certain unfair dismissal cases, such as when a worker was dismissed for whistleblowing or or trade union activities.
It can grant the claimant a continuation of wages from their dismissal until their case concludes, but it is seldom applied for and rarely won. This is because the deadline to put in the claim and application is just a week after dismissal, and the claimant must meet a particularly high threshold to persuade a judge - even at that early stage - that they have a pretty good chance of success in their unfair dismissal claim.
Sponsorship: throwing a spanner in the works
Employment Judge Joffe decided in a hearing on 29 July 2024 that Kiran’s case had met the threshold for interim relief, and that it would be appropriate in principle. However, there was another hurdle.
At the hearing Clinica revealed that the Home Office had stripped them of their licence to sponsor migrant workers. They argued that paying Kiran interim relief would constitute an employment relationship, which would be unlawful without a sponsorship licence.
Clinica was not alone in facing retribution from the Home Office for abusing the sponsorship system. As reports of migrant worker exploitation by their visa sponsors soared, the Home Office started ramping up action against employers, suspending or removing their licence to sponsor foreign workers. In the approximately nine months that passed before Kiran’s dismissal and his hearing, around 800 employers had their licences stripped or suspended.
Though the Home Office action against Clinica was far from being Kiran’s fault (it was, in fact, a result of the mistreatment suffered by him and other migrant workers), this left the judge questioning what legal order for interim relief could be made in the circumstances. This intersection of employment law and immigration rules adds another layer of complexity. The case was adjourned.
Relief is granted
At a further hearing on 9 September, the judge heard arguments from Kiran’s counsel, barrister Hana Abas, acting pro bono and instructed by our colleague, solicitor Dr Sarmila Bose, that it would be lawful to order payment of interim relief from Clinica, as a ‘continuation of contract’ order. This is because, despite the label, it would not actually involve an employment relationship, but was a legal construct - a one-sided arrangement, where contractual salary and benefits continued without the former employee having to perform any work.
Ultimately, Judge Joffe ruled that an order for interim relief (a continuation of contract order) “is not an employment contract and does not create an employment relationship.” Therefore, it is legal for an order for interim relief to be made for Kiran, amounting to unpaid wages from the date of dismissal of £16,900.97, to be paid within 28 days, with a further monthly salary of £1,703 to be paid until the case concludes. At the time of writing, we are awaiting a date for the final hearing.
Why is this case significant?
We know that there are hundreds, likely thousands, of people in a similar situation to Kiran who have not been able to seek legal advice, let alone pursue employment justice. When a scammed migrant care worker comes to us for advice, they are usually part of a wider group of workers who have been exploited by the same employer. Most of their colleagues (or former colleagues) feel unable to speak out due to the fear of losing their visa and social shame.
At the time of writing, the Work Rights Centre has provided support to 104 people on the Health and Care visa. Some of them, like Kiran, were scammed out of thousands of pounds in illegal recruitment fees and offered employment contracts under false pretences, but no actual work materialised. Others were exploited in different ways; overworked and underpaid, then threatened that if they complained their visas would be cancelled.
It is very rare for a judge to make an order for interim relief and there are no known cases of an employer who has lost their sponsorship licence being ordered to pay this to a migrant worker. This case sets a persuasive precedent that, in certain circumstances, interim relief may be payable to a migrant worker who is suing their former employer, even if that employer has lost their licence to sponsor migrant workers.
Thousands of migrant carers across the UK have been scammed and exploited by unscrupulous employers. This case demonstrates that, in some cases, it is possible to seek redress through the Employment Tribunal system.
Wide-scale justice for exploited migrant carers requires reform of the visa-sponsorship system
The post-Brexit work migration system which ties migrant workers to their employers, has led to a situation where scores of migrant workers are exploited. While the government is aware of the scale of exploitation and is taking enforcement action against sponsors (including Clinica), so far it has no plan to compensate affected workers. This case demonstrates that there are avenues for carers to fight back through the tribunal system, but this can only achieve justice on a case-by-case basis. Fundamental reform of the visa system is needed to tackle exploitation at scale.
This case also shows how much harder it is for migrant workers to find justice in the UK. If Kiran was British, and his employer did not need permission from the Home Office to employ them, the judge would not have had to decide whether a lawful order for interim relief could be made. Similarly, Kiran would not have to wait for weeks to learn what compensation he would be awarded, once the judge had already decided he was due interim relief in principle.
The sponsorship system creates a myriad of additional disadvantages for migrant workers that make it far more difficult to enforce their rights. It requires urgent and fundamental reform if this government’s promise of strengthened workers’ rights is to apply equally to migrants, too.
To better understand the visa-sponsorship system, read our report: The Systemic Drivers of Migrant Worker Exploitation.
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