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Home Office Updates Guidance on Preventing Illegal Working

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Just a few weeks from the proposed exit date, the increasingly uncertain Brexit process trundles on – withdrawal looks inevitable but exactly what form it will take remains to be seen. This persistent uncertainty has cause great difficulty for employers looking to take pragmatic steps to minimise the impact of Brexit on their organisations.

UK employers are already acutely aware of their obligation to prevent illegal working within their business. However, it is easy to see how this obligation may take on increased importance, following the UK’s withdrawal from the EU. Fortunately, the Home Office has now taken steps which should hopefully make that obligation slightly easier to police – for some employers, at least.

The Revised Code

Last month, the Home Office updated its Code of Practice on Preventing Illegal Working, in response to changes introduced by the Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018.

The revised code – which replaces the earlier version published in May 2014 – sets out the document checks prescribed by the Home Office which an employer is required to make to ensure that an individual has the right to work, or continue working, in the UK. It also provides factors for consideration in determining the amount of the civil penalty payable in case of breach of the Immigration, Asylum and Nationality Act 2006.

Employer’s Obligations

All UK employers have a responsibility to prevent illegal working. Employers must satisfy this obligation by conducting simple right to work checks, prior to employing someone, to ensure the potential employee is not ineligible to carry out the work in question due to their immigration status.

If an employer conducts a check in accordance with the guidance, they will have established what the Home Office refers to as a statutory excuse against liability. This means that, if an employer is found to have employed someone who does not have the right to do the work in question, but the employer is found to have sufficiently carried out a right to work check, they will not incur a penalty in respect of that illegal worker.

New Employer Checking Service

The revised code reflects the introduction of a new online ‘Employer Checking Service’ which (as of 28th January 2019) enables employers to conduct an online right to work check. The system can also be used for follow-up checks, where an employee’s right to work is time restricted. Employers should note that they are required to obtain the employee or potential employee’s consent before conducting an online check.

It is important to note, though, that not all employees or potential employees will have an immigration status which can be checked at this stage – in which case, the employer would be required to conduct a manual check instead.

The Home Office has published separate guidance designed to be read alongside the revised code. This includes guidance designed to assist employers in carrying out checks, guidance on how employers can avoid unlawful discrimination whilst preventing illegal working and guidance on how the Home Office administers the civil penalty scheme. These can be accessed here.

When does the revised code apply?

The revised code applies:

  • when calculating the penalty amount; in respect of any employment which commenced on or after 29th February 2008 where the breach of section 15 of the Act occurred on or after 28th January 2019; or
  • when determining liability; where an initial check on a prospective employee , or a repeat check on an existing employee is required on or after 28th January 2019, in order to establish or maintain the new statutory excuse.

Previous codes still apply to breaches which occurred before 28th January 2019.

To whom does the revised code apply?

The revised code applies in respect of all employers who employ staff under contracts of employment, written or otherwise. This also includes apprenticeship agreements.

Given the UK is set to leave the EU, ensuring employees have the right to work might become a more common issue for employers if EU citizens are required to have visas going forward in order to work in the UK.

If you’d like further information on how rules on preventing illegal working may impact upon you or your business, please get in touch.

February 2019 Newsletter
Brexit – Approval of Employment Regulations