Home Office Publishes Revised Employers Guide to Right to Work Checks

From all of us here at DavidsonMorris, we hope you had a nice and relaxing Christmas, and wish you a happy, healthy, successful and prosperous New Year!

Just before the end of the year, the Home Office also published a further update and clarification on the Employer’s Guide to carrying out Right to Work checks.

We outline below a summary of the most noteworthy points from the update to the scheme, and the most important updates of which you as employers must take clear and careful note:

• The Home Office confirms and clarifies that where the Residence Card, Permanent Residence Card, Accession Residence Card and Derivate Residence Card held by a non-EEA national is endorsed on their passport, the passport may be current OR expired and this would still constitute lawful right to work. However, the permit itself must be current and the employer must still check that both documents belong to the worker.

• It clarifies that Tier 4 Students are only permitted to undertake a work placement when it is an integral and assessed part of their course. Employers must note that a work placement is separate from any employment that a student may be permitted to undertake while they are following the course of study. Tier 4 education sponsors should provide a letter addressed to the work placement provider confirming that the work placement forms an integral part of the course, and does not, by itself or in combination with other periods of work placement, breach the restriction on work posed to Tier 4 students. The letter should also include the terms and conditions of the work placement, including the work that the student will be expected to do, and how and when they will be assessed. As employers, you are strongly advised to obtain and retain such a letter as evidence of the work placement and evidence that the work placement restrictions have not been breached.

• The guidance in respect to Transfer of Undertakings (Protection of Employment) (TUPE) and changes to the constitution of corporate employer has also been updated. The updated guidance confirms that where the employer is corporate body a check is not necessary when there is only a change in the legal constitution of the organisation – for example, from a private limited company to a public limited company, or a partnership to a limited company, or a limited liability partnership, or a TUPE transfer within the same group of companies. This is only the case when the employer is effectively the same entity and is only changing its legal status. However, where there is any doubt, we recommend that you check the person’s right to work, rather than risking a civil penalty