Legislation Update: Changes to Right to Work in the UK

From 15 May 2014, an employer who hires someone who is not entitled to work in the UK can be subject to a civil penalty of up to £20,000 (increased from £10,000) for each person found to be working illegally, or a prison sentence of up to two years.

From 16 May 2014, new statutory codes of practice on preventing illegal working and on avoiding unlawful discrimination while preventing illegal working come into effect, and there are some changes to the rules on checking documents.

These changes have been brought in by the Immigration (Employment of Adults Subject to Immigration Control)(Maximum Penalty)(Amendment) Order 2014 and the Immigration (Restrictions on Employment)(Codes of Practice and Amendment) Order 2014. These and other immigration changes follow a Home Office consultation from 9 July to 20 August 2013.

Since 2008, employers have been subject to a civil penalty (initially £5,000 maximum) if they employ a person who is not eligible to work in the UK. However, employers have a statutory defence against a penalty if they have checked eligibility to work in the UK before employing the person. The check involves seeing the original of specified documents, and retaining copies.

Under the changes from 16 May 2014:

The number of documents that are acceptable for checking an employee's right to work is reduced. The updated lists are on pp.14-15 of the code of practice on preventing illegal working, and are also in the employer's guide to right to work checks. Documents which no longer provide a statutory excuse are a UK-issued travel document which is not itself a passport, work permits, and general Home Office letters. In addition, any document which contains an expiry date must be current, unless it is a document showing that the holder is a British citizen, a citizen of the UK and colonies having the right of abode, a national of an European Economic Area (EEA) country or Switzerland or their family members with permanent residence.

From 16 May 2014 it is no longer necessary to keep a copy of the front page of a passport. Copies of other pages with information as specified in the code of practice must be kept.

For anyone hired on or after 29 February 2008 with a restriction on their right to remain in the UK, employers have had to repeat the check every 12 months. From 16 May 2014 this is no longer required, and the employer only has to carry out the check when the worker's permission to be in the UK is due to expire.

To ensure an employer knows when a tier 4 (general) student is entitled to work full-time (during vacations) or part-time (during term time), the student must provide the employer with evidence from their education sponsor, showing term and vacation times during the period for which they will be employed. If details for the whole period are not available, the employer must obtain later details when available.

For employees transferred under TUPE, the transferee (the new employer) has previously had 28 days to carry out right to work checks. For transfers on or after 16 May 2014 this is extended to 60 days.

When an employee's right to remain and work in the UK ends but the employer is reasonably satisfied that the employee has an outstanding application to the Home Office or an outstanding appeal on that application, the employer has a grace period of up to 28 days during which they will not be subject to a penalty for employing a person who is working illegally.

To avoid allegations of racial discrimination the initial check should be done for all potential employees, and to establish the statutory defence it must be done before the person starts employment. A defence is not established if the check is done on the employee's first day or any time thereafter.

In addition, employers have to take action if they become aware at any stage that a person is working illegally.

In its consultation in 2013, the government proposed that directors of limited liability companies and partners in limited liability partnerships should be held jointly and severally liable for civil penalties if their company or LLP does not pay the penalty. This was broadly supported in the consultation, and the Home Office has said it will work with the Department for Business, Innovation and Skills to look at the company and partnership law implications.

Credit to “Sandy Adirondack’s legal update website for voluntary organisations at www.sandy-a.co.uk” for the text of this article

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