Written by JMW solicitors LLP
Employers in the UK are under a strict duty to prevent illegal working by carrying out the appropriate checks, and there are hefty fines for not complying with their obligations in this respect. Whilst most employers will be aware of ‘right to work’ checks, they are also obliged to conduct follow-up checks for workers who have a time-limited right to live and work in the UK.
Whilst there are civil and criminal sanctions for employers knowingly employing illegal workers, or from omitting to take action when they gain knowledge of the same, the civil sanctions are due to drastically change from 22 January 2024 onwards (following the introduction of the ‘draft code of practice on preventing illegal working: Right to Work Scheme for employers’.
The current regime permits for a maximum civil fine of £20,000 per individual who does not have the right to work in the UK (which doubled from the £10,000 per individual limit imposed on 16 May 2014). From 22 January 2024, this maximum will be increased to £60,000 per illegal worker. However, this fine will only apply to employers who have committed more than 1 breach, and employers who have breached the rule for the first time will be subject to a lesser fine of £45,000 per individual.
The statutory excuse will remain in place for employers who have conducted proper and compliant right to work checks, i.e.:
- Employers have checked the employee’s original documentation in line with Home Office Guidance or conducted the checks online using the employee’s share code. For British and Irish Citizens, employers can also use identity document validation technology via the services of an identity service provider.
- Employers have performed a manual document check in the presence of the employee or virtually if the employer has the employee’s original documentation in their possession. Alternatively, they can conduct an online right to work check for those employees with a share code (which can be done virtually via the Home Office online service only).
- Retain the checked documents correctly, recording the date and any follow-up dates to be mindful of. The statutory excuse will remain in place if employers have completed follow up right to work checks on individuals that may have had a time limited right to work in the UK.
Employers will further be able to reduce the amount of the fine if they can show that they have reported a breach to the Home Office, are cooperating with any investigations or actions taken by the Home Office, and that they have an effective right to work check system in place (for first time breaches only). There will further be a right to a 30% reduction where the fine has been paid early.
The new draft code sets out how civil penalties will be administered and calculated, which dramatically escalates from the current position. For example, in instances where illegal working has not been reported from by the employer, when they should have done so, the fine will stand at £40,000 per worker (the fine is currently £10,000). This is why it is important to seek legal advice as soon as there is a suspected instance of illegal working, and an employer is unsure of what proactive steps to take.
The increased civil fines as laid out in the draft code demonstrates how seriously the Government takes employer’s obligations to prevent illegal working, and higher fines are the price to pay for employers who fail to conduct proper right to work checks, or who choose not to treat an employee’s right to work as an ongoing obligation (where appropriate). This obligation cannot be deferred to third party providers, and employers remain liable to conduct the checks themselves. Even if an employer has assistance from a third party, for example a supplier of software to conduct the relevant checks, the liability remains with the employer (which emphasises the importance of employer’s understanding their respective obligations).
For advice on right to work checks, you should seek legal advice to ensure that your processes are robust. JMW have a specialist legal team which can advise on this if you are in need of specific help.
