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Preventing Illegal Working: Higher Fines and Simpler Right To Work Checks

The Home Office has released a “draft code of practice on preventing illegal working” that updates rules regarding civil penalties on employers who employ undocumented workers, which comes into effect on 16 May 2014.

It contains some comprehensive changes to Right To Work checks required by employers and substantially raises the maximum financial penalties for non-compliance. It details the Home Office’s civil-penalty scheme for employers and updates the code from February 2008. The draft code has been approved by the Secretary of State and presented to Parliament.

The major changes are detailed below.

We encourage all employers, big and small, to take a moment and familiarise themselves with the new requirements:

  • New methods of calculating fines. Under the draft code, the maximum starting penalties are £15,000per worker for a first breach and £20,000 per worker for a second or repeat breach (up from a previous maximum of £10,000 per worker for repeat breaches). The new framework for civil penalties includes consideration of mitigating factors, such as cooperation with the Home Office and effective internal procedures.
  • Fewer documents. The draft code reduces the list of acceptable documents an employer may check when inspecting employees’ right to work. Employers can establish a statutory excuse by checking these documents.
  • Less frequent follow-up checks. Employers will not have to conduct follow-up checks as frequently for employees with temporary permission to be in the U.K. Under the new rules, they will generally only need to follow up when an employee’s work authorization expires (based on the validity period that appears on an employee’s documents during the employer’s initial check). Currently, employers must follow up every year.
  • Longer grace period in TUPE situation. A longer grace period of 60 days will be allowed for employers conducting a right-to-work check of employees as a result of the Transfer of Undertakings (Protection of Employment) Regulations after acquisition of a company or business unit.

 

These changes generally reduce employers’ burden in conducting right-to-work check, particularly the elimination of annual follow-up checks of employees on temporary stay visas. However, the substantial increase in maximum penalties for employing workers illegally – or for not having performed Right to Work check correctly – makes it imperative for employers to get their internal procedures in place.

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