Written by Brabners LLP
Since the UK formally left the European Union at 11pm on 31 December 2020, employers and recruitment businesses have been getting to grips with the UK’s new immigration regime, and trying to understand their options and obligations in terms of recruiting and employing non-UK nationals and carrying out compliant right to work checks post-Brexit.
Most businesses are now familiar with concept of the EU Settlement Scheme (“EUSS”), the points-based immigration system and the fact that ‘right to work’ checks have changed. However, in the contingent labour sector in particular, the new immigration regime is throwing up some questions and tricky issues.
On 29 June 2021, Brabners, in conjunction with the FCSA, ran a webinar focussing on right to work checks and the new immigration regime. A number of questions were raised during that webinar, some of which we have addressed here.
Right to work checks and the “statutory excuse”
It is unlawful to employ someone who does not have the right to live, and the appropriate right to work, in the UK, or who is working in breach of their conditions of stay.
Employers who fail to carry out right to work checks properly will potentially be exposed to civil penalties of up to £20,000 per illegal worker, criminal penalties (unlimited fines and up to 5 years in prison), naming and shaming, reputational damage and the loss of any sponsor licence (more on that below). However, provided an employer has carried out a compliant right to work check, they will have a “statutory excuse” in the event that they are found to be employing someone who does not have the right to work in the UK.
Acceptable documents which demonstrate either a permanent or temporary right to work in the UK are set out in List A and List B of the Home Office Right to Work Checklist. Importantly, in order to obtain a statutory excuse, an employer is required to obtain the employee’s original physical documents, not photocopies or scans.
Having obtained an individual’s physical document/s, the employer must check the documents in the presence of the individual, either in person or via a video link such as Skype or Teams, but in either case the employer must be in physical possession of the ID at the time of the check.
Appreciably, it may not be practicable for an umbrella employer to check an individual’s ID in person, given that umbrella employees may be working on assignments all over the country. However, apart from the temporary COVID-19 concession (referred to below), there is no alternative which would provide the employer with a statutory excuse unless the individual posts their physical documents to the employer’s premises and then the employer conducts the check via video call with the individual. The cost and risk of the employee’s documents getting lost in the post may, understandably, mean that this is not an attractive option either.
Between 30 March 2020 and 31 August 2021, a COVID-19 adjustment is in place which allows employers to carry out right to work checks over video calls without seeing physical documents – instead, individuals can send scanned documents or a photograph of their documents using email or a mobile app. These documents must still be checked by the employer in the presence of the individual, via live video call.
Various industry bodies are lobbying for the COVID-19 concession to be made permanent, given the practical difficulties highlighted above of checking an individual’s documents in person. However, unless the Home Office permanently changes its approach to allow virtual right to work checks, then from 1 September 2021 employers will have to revert to carrying out “in person” or permitted online checks using the services provided for on the gov.uk website in order to establish a statutory excuse.
As part of a compliant right to work check, an employer must take reasonable steps to check the validity of the documents provided, which includes examining them for “reasonably apparent” forgeries. Employers must take a copy of the employee’s documents, record the date on which the right to work check was made and retain the copy documents.
The employer must also check that any visa allows the person to work and to undertake the type of work on offer, as well as considering any conditions which are attached to the visa. For example, if an employee presents a biometric residence permit (“BRP”) which indicates that the individual has a time-limited right to stay in the UK, this will also set out the particular work which the individual is allowed to do (see List B). If the individual’s BRP indicates that they are currently working in the UK on a student visa, then their right to work will be time-limited and the individual will also be limited in terms of the number of hours which they can work per week. The maximum cap on weekly working hours is fixed regardless of how many different jobs the individual has – their total working hours across all jobs must not exceed the maximum limit – so an employer would need to make enquiries as to whether the individual will be doing any other work, and/or the employer could ask the individual to sign a declaration to confirm that this is their only job and that they will inform their employer should their circumstances change. Note that this is different to a situation where an employee presents a BRP indicating that the employee is allowed to stay indefinitely in the UK, or has no time limit on their stay in the UK (List A). In that case, the BRP alone would be sufficient evidence to establish the individual’s right to work in the UK.
Employers should also note that right to work checks must be carried out by the employer’s own staff – they cannot be delegated to a third party (if they are, that will not provide the employer with a statutory excuse). In any event, third party organisations which offer an ID verification service are generally simply checking a person’s identity, for example by searching for their name on the electoral role or other official records – they are not checking whether the person has the right to work in the UK.
Question: when it comes to employment agencies, is it the agency’s duty to carry out right to work checks prior to placement?
It is the employer’s responsibility to carry out right to work checks itself and it cannot rely on a check undertaken by a third party, so the end client should carry out the necessary checks before employing the candidate. That said, employment agencies can certainly offer added value to their clients by being able to place “visa-ready” applicants who meet the necessary criteria to obtain a skilled worker visa under the points-based system, saving clients the time of interviewing candidates who may not be eligible to take up the role. Employment agencies should also remember that the end client will require a sponsor licence in order to sponsor a migrant worker who is placed with them.
Question: Will the Governments online employer checking service confirm whether a potential employee requires to be sponsored by an employer?
The employer checking service will only tell you whether or not the individual already holds the right to work in the UK, any conditions attached to that right to work, and whether the right to work is time-limited.
Question: What about right to work checks for self-employed contractors?
Businesses are not legally required to check the right to work of individuals who are genuinely self-employed. However, businesses are strongly advised to carry out right to work checks on all contractors anyway, in order to avoid the reputational damage which could arise as a result of a business being found to be engaging illegal workers. It is a requirement of the FCSA code of compliance that umbrella companies verify the identity of self-employed contractors.
The EU Settlement Scheme
The EUSS was open for applications from EU nationals who had been resident in the UK prior to 11pm on 31 December 2020 and who applied by the 30 June 2021 deadline.
Prior to 30 June 2021, Home Office guidance advised that employers could not require individuals (whether existing employees or job applicants) to prove that they had applied to the EUSS. Employers could raise awareness about the EUSS, encourage individuals to apply and ask them to share their “share code”, but demanding to see evidence that they had applied meant that employers and recruitment businesses were running the risk of discrimination claims.
In theory, this means that there could be individuals who have not applied to the EUSS, who are now working illegally in the UK, but who haven’t been identified because their employer was able to accept their EEA passport or national ID card as proof of their right to work in the UK prior to 1 July 2021. The Home Office has confirmed that employers do not need to carry out retrospective checks on any individuals whose right to work documentation was checked on or before 30 June 2021, as long as a compliant right to work check was carried out at the time. Umbrella employers and recruitment businesses may, nevertheless, want to consider carrying out retrospective checks, given the financial and reputational risk of employing illegal workers. If businesses adopt this approach, they are advised to carry out right to work checks on all their workforce (instead of just checking the ID of individuals who are believed to be non-UK nationals) to avoid allegations of discrimination.
Transitional Provisions until 31 December 2021
Another reason for carrying out retrospective checks is that, up until 31 December 2021, if an employer discovers that one of its employees has missed the deadline to apply to the EUSS, they can advise the employee to make a late application within 28 days (and can continue to employ them in the meantime as long as they make the application within that 28-day period). The Home Office guidance states that if the individual still does not make the application then the employer “must take steps to cease their employment in line with right to work legislation”. Whilst the Home Office are clear on their stance here, and whilst an employer will commit a criminal offence if they become aware, or have reasonable cause to believe that they are employing someone who does not have the right to work in the UK, employers should also be aware that they could face employment tribunal claims from individuals whose employment is terminated in this way if their employer has made a mistake about their immigration status (which happens more often than you may think). If an employer does suspect that they are employing an illegal worker, we would therefore recommend that they take legal advice.
Question: If an umbrella employee’s settled or pre-settled status is based on them being a relative or spouse of an EU citizen, is their umbrella company required to ask them to provide evidence of the EUSS status of their relative/spouse?
The short answer is no. If an employee can provide a share code which shows that they have settled or pre-settled status, their employer is not required to delve into how they obtained that status.
Sponsor licences and the points-based regime
What about temporary workers (and permanent candidates) who are not eligible to apply to the EUSS, for example because they were not resident in the UK prior to 2021? The main route of entry into the UK for work is now the points-based visa route. The most common type of visa under this regime is the Skilled Worker visa. In order for a candidate or temporary worker to obtain a Skilled Worker visa, they need, amongst other things, a job offer from a business with a Sponsor Licence.
In the context of permanent placements, this means that the client/hirer will need a Sponsor Licence, because they will be the business which is actually employing the individual.
But what about temporary workers, in particular umbrella employees? Can an umbrella company obtain a Sponsor Licence in respect of its employees who will then be supplied by an agency to an end-client? The answer is only in very limited circumstances. Generally, an employer can only apply for a Sponsor Licence in relation to someone who will be employed by them in connection with the running of their own business. For example, an umbrella company could apply for a Sponsor Licence to recruit a French national to be an Account Manager within the umbrella company’s own business, but an employment agency (which includes umbrella companies and employment businesses) cannot sponsor a worker if they will be “hired out” to a third-party organisation to fill a position with them, whether temporary or permanent.
There is a potential opportunity for umbrella companies to obtain a Sponsor Licence where the individual will be working on a “contract basis”. This means that the worker must be employed by the umbrella company to provide a service or project to a client within a certain period of time. The service or project must have a specific end date, after which it must have been completed or the service provided must no longer be operated by the umbrella company or anyone else. In these circumstances, the umbrella company must retain full responsibility for all the duties, functions and outcomes or outputs of the job the worker will be doing. Essentially, in this scenario the umbrella company must be genuinely providing an outsourced service for a specific project, rather than simply being involved in the supply of temporary labour for an assignment. This is a fundamentally different business model which, in reality, is unlikely to apply to most employment business or umbrellas, although it is useful to be aware of it in case this is a genuine option in some cases.
FCSA members with questions about right to work checks or immigration matters are welcome to contact Brabners for advice