‘Tis the season to be jolly with shops full of festive sparkle – since November, and the Christmas party season in full swing.
This is also the busiest time of year for retailers, restaurants and many other sectors, whether on the high street, in business parks across the country or online.
With the increase in consumer demand, comes the peak time for seasonal hires and agency staff. At this time of year, a robust right to work processes become pivotal for any commercial operation.
In July 2016, the Immigration Act 2016 came into force introducing new criminal penalties for individuals working in breach of their visa conditions and increasing the penalties for the companies that employed them. Prior to this, the Home Office had to prove that the employer knowingly employed the illegal worker. Since the introduction of the 2016 Act, the Home Office is only required to prove that an employer had reasonable cause to believe the individual did not have the right to work. This remains a high standard, but employers must still be wary and have clear processes in place for onboarding new staff.
A company’s failure to complete a right to work check would not in itself subject them to a fine in the first instance. Illegal working is a question of liability to your business only once proven. A business will only receive a civil penalty fine if found to be employing an illegal worker without recording satisfactory right to work checks. This comes down to HR processes with many small and medium-sized companies particularly struggling in this area. Larger firms should still be sure that they have sufficient HR resources during this busy period to ensure that they will not receive a civil penalty fine among their Christmas Cards this festive season.
In this article, we look at the issues and penalties that can arise from right to work check violations when hiring international students, direct hires and agency staff.
Right to work checks for students
The course type that a Tier 4 General student is studying will dictate the number of hours they are permitted to work (if any). It is important for businesses to verify, when employing a Tier 4 General student, which condition of leave is applicable in order to keep a record of the number of hours worked per week. For example, a Tier 4 General student working 21 hours a week during term time would be working illegally.
Right to work checks carried out on students also require more attention, with further documentation required. Some Tier 4 students are permitted to work full time during vacation periods. However, a full statutory defence is only created when evidence of term time is held on file such as a letter from the college or university confirming term times which can normally be received on request. Copies of the student’s current passport and visa (normally their BRP card) should also be kept within their personnel file. Businesses that require seasonal staff often know of these requirements; however, it remains a common failure among employers.
Right to work checks for direct hires
A business found to be employing staff unlawfully could be held liable to pay a civil penalty of up to £20,000 per illegal worker should the Home Office discover them. You can protect your business if this occurs by showing a valid right to work check was completed before employment commenced.
For this statutory defence to work, you would have needed to carry out a compliant check of original documents that confirm the right to work of the staff member in the UK. This would normally be the passport or BRP card of the member of staff with evidence on file that this check took place on or before the first day of work.
Right to work checks for agency staff
The agency should conduct right to work checks on any agency staff they supply. However, for businesses relying on agency staff, it would be sensible to put terms and conditions in place in the service agreement, ensuring that the right to work check occurs before the first day that they work for the business. The agency should be able to give written guarantees that they will complete checks to the Home Office’s standards prior to sending any agency staff to your premises.
You may also request to receive copies of the right to work check that has been completed (subject to data privacy issues) or require the agency to conduct a fresh right to work checks on an annual basis for all regular agency staff.
How do you maintain the quality of right to work checks during busy periods?
With many things, it is found that no matter how vigorous the system is, the quality of the right to work checks decreases when volume increases.
To avoid issues later down the line and potential civil penalty notices, it is advisable to:
• train staff responsible for completing right to work checks
• have further trained staff assigned to assist with increased volumes
• Phase in right to work checks with seasonal worker populations to provide breathing space to the additional administrative burden of seasonal right to work checks.
This post was written by Anna Harvey, Partner at Price Bailey Legal Services. If you would like to know more about right to work checks then please contact Nathan using the form below.
We always recommend that you seek advice from a suitably qualified adviser before taking any action. The information in this article only serves as a guide and no responsibility for loss occasioned by any person acting or refraining from action as a result of this material can be accepted by the authors or the firm.