Changes to right to work checks: the impact on employers
19th October, 2017
Employers have a duty to prevent illegal working. The Home Office has recently updated its guidance in respect of carrying out right to work checks which an employer must do in order to have a statutory excuse in case a worker is found to be working illegally. We have summarised the main changes below.
Employers are encouraged to check right to work status for workers, not just employees
Contractors and sub-contractors are included within this bracket. The Home Office’s guidance states there are “compelling reasons” why employers should check that their contractors and sub-contractors carry out the correct right to work checks.
We would recommend employers check the terms of any commercial agreements to verify contractors have carried out the correct right to work checks and that you have the right to terminate the contract if this has not been done; doing so can avoid reputational damage, potential disruption to operations and the impact on health and safety obligations where workers are found working illegally.
Employing volunteers and being a voluntary worker
Individuals who have been granted immigration permission to be in the UK are permitted to volunteer; this includes visitors who can volunteer for a registered charity for a maximum of 30 days, but volunteering cannot be the main purpose of their visit.
Generally speaking individuals who have limited permission to work in the UK are not permitted to volunteer, except Tier 4 (General) or Tier 4 (Child) students aged 16 and over who can do voluntary work, as long as it does not exceed the total number of hours they are permitted to work during term time.
Employers may be liable if they engage an individual in voluntary work who is not permitted to take up such work.
The legal distinction between voluntary work and volunteering is not always clear – we would recommend those involved seek independent legal advice.
Impact on “High-risk” industries
High-risk industries such as taxi/private hire firms and premises with alcohol or late night refreshment licences are now subject to mandatory immigration checks as part of the licensing regime since 1st December 2016.
The Home Office has issued guidance on the implications for licenced businesses that receive a civil penalty for illegal working; licences will not be issued to those who break the UK’s immigration laws and may be revoked where an existing licence holder is found to be employing illegal workers.
Employment of international students
International students are often entitled to work part-time during their studies, and full-time during their holidays and any period of time between completing their studies/expiry of permission to be in the UK.
When conducting checks employers are now required to obtain and retain evidence of the international student’s academic term and holiday dates. The evidence should come from the education provider/institution which is sponsoring the student (i.e. print out of term dates from institutions website or publication, copy of letter/email addressed to the student from the institution or a letter addressed to the employer confirming the dates).
Additional documents employers are to request when employing non-EEA family members of an EEA national
The following documents can be provided as evidence of a non-EEA national who is relying on their relationship with an EEA national, ability to work in the UK:
- Residence cards
- Permanent Residence cards
- Accession Residence cards (Croatian nationals)
If such a card is inserted in to the holder’s national passport, you should ensure the passport belongs to the holder but there is no requirement for that passport to be current. These documents need to be checked carefully and copied correctly before a person starts work. Otherwise, the employer will not have a statutory excuse if the individual is later found to be working illegally.
Businesses should remain cautious when conducting right to work checks for these employees.
It is now a criminal offence not only if you know but also if you have reasonable cause to believe that you are employing an illegal worker. You may face up to 5 years’ imprisonment and/or an unlimited fine.
Since 1st December 2016, the Home Office can seek closure notices and compliance orders. Closure notices may be used to close premises for a limited period of time where an employer (or a person connected to the employer) operating at the premises is found to be employing illegal workers and has previously been non-compliant with illegal working legislation. A compliance order prevents an employer operating at the premises from employing illegal workers. The employer is then placed under special conditions to support compliance.
If illegal workers are removed from your business it may disrupt operations and result in reputational damage, it could have adverse impacts on Health and Safety an safeguarding obligations as well as potential invalidation of insurance if the identity and skill levels of your workers are not as claimed.
If liable for a civil penalty it could affect your ability to sponsor migrants who come to the UK in the future.
When considering whether an individual has the right to work always carry out the three main checks:
- Obtain the person’s original documents;
- Check the validity of the documents in the presence of the holder; and
- Make and retain a clear copy, and make a record of the date of the check.
The check provides a statutory excuse against a liability for a civil penalty, provided the documents show the individual has the right to work in the UK.
How can Ward Hadaway help?
To discuss how the updates to right to work checks affect you in more detail, our team of specialists are here to help. Please click here to get in touch.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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