Changes to Right to Work Checks – What This Means for Employers. The Home Office recently updated its guidance on how employers must conduct right to work checks for employees if they are to prevent illegal working. Every employer has an obligation to ensure that individuals they engage are not disqualified from carrying out the work in question by reason of their immigration status. The purpose of the checks is to clamp down on illegal migration, guard against vulnerable people being exploited and/or enabling unscrupulous employers to unfairly undercut compliant businesses. Illegal working can also have a detrimental effect on broader economic and social issues such as tax evasion, breaches of the national minimum wage legislation and even modern slavery in the most severe cases. Not only are there significant financial penalties for employers who default but failure to comply can also result in criminal prosecution, director disqualification, revocation of sponsor licences and reputational damage if the company is “named and shamed” on the quarterly Home Office report identifying companies who have fallen foul of the requirements. In summary then the cost of getting this wrong (even unintentionally) can be substantial – and it’s just become even higher. The updated guidance, which was effective from 13th February 2024, states that: The maximum civil penalty for non-compliance has been raised to £45,000 per illegal worker for a first breach and £60,000 per illegal worker for repeat breaches. The 28- day concession to allow late applications to the EU Settlement Scheme for employees who are EEA nationals or non-EEA national family members, who were employed on or before 30 June 2021 and who it transpires (during an internal audit or otherwise) do not hold a lawful immigration status permitting them to work in the UK has been removed. The guidance now states that, “if an employer identifies an existing employee who no longer has a right to work, they are required to take the appropriate action. This may include contacting the Home Office for support or taking steps to terminate employment”. Employers should secure additional evidence where they are employing someone for “supplementary employment” (they are sponsored by another employer for their “main role”) to ensure that the worker is not undertaking more than the permitted 20 hours a week supplementary employment in total. “Supplementary employment” is where some sponsored workers take on additional paid work provided they are continuing to work in the job listed on their Certificate of Sponsorship (CoS). Under the Skilled Worker route, migrant workers can work up to 20 hours a week in a job that’s either in the same occupation code and at the same level as their main job or in a shortage occupation. Getting it wrong once doesn’t automatically mean a fine. If an employer conducts the checks as set out in the guide and the code of practice, they will have a statutory defence against liability for a civil penalty in the event they are found to have employed someone, who is disqualified from carrying out the work in question, by reason of their immigration status. There are also a number of mitigating factors that are relevant for calculating the level of any civil penalty imposed for illegal working. Nevertheless, the reality is that establishing whether an employee is working illegally can be complex and we strongly suggest taking advice from our business immigration experts if you have any concerns. If you wish to learn more, please do not hesitate to contact Elizabeth Maxwell or our Employment team at employmentemail@morrlaw.com, who will be happy to help. How can Morr & Co help? If you require further assistance and advice on potential changes to legislation or have any questions about this article, please call our Employment team on 01737 854500 or email info@morrlaw.com and a member of our expert team will get back to you. Disclaimer Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position. Authored by Elizabeth Maxwell Associate Solicitor Message Tags Insights Corporate Insights On this page Contact our team today Contact Us
