On 6 May 2014 the Home Office published a draft code of practice on preventing illegal working detailing a revised civil penalty scheme for employers expected to come into force today. It will apply where any breach occurred on or after 16 May 2014.
Having replaced the previous code issued in February 2008, it has statutory force and contains some comprehensive changes to right to work checks to be carried out. The maximum penalties for non-compliance have also been considerably raised under the new code.
The code contains the following major changes:
- New methods of calculating fines - Under the draft code, the maximum starting penalties are £15,000 per 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 guidance from the Home Office on the range of factors it will consider in determining the level of the penalty to be imposed with consideration of mitigating factors, such as cooperating with a Home Office investigation and effective internal procedures in place notwithstanding a breach. Different factors under the “consideration framework” and “penalty calculator” will likely result in different penalties.
- Fewer documents - The draft code reduces the list of acceptable documents proving a right to work. Where employers check and have copies of these documents they will continue to be able to establish a statutory excuse [defence to the offence of employing an illegal worker].
- Less frequent follow-up checks - There will be less frequent repeat checks required on employees with temporary permission to live and work in the UK. Under the February 2008 code repeat checks were mandatory every 12 months on employees with permission to be in the UK for a limited time with restrictions on their right to work. Under the new code, the requirement to repeat checks will be related to the date of expiry of the employee’s visa.
- Longer grace period in TUPE situations - A longer grace period of 60 days will be allowed for employers conducting right to work check of employees following transfers under the Transfer of Undertakings (Protection of Employment) Regulations. The previous grace period in the 2008 code was 28 days.
On the whole the revised code has eased the administrative burden on the employer when conducting right to work checks. The reduction of the list of acceptable documents will be a welcome change as the lengthy lists with document combinations under the 2008 code could cause confusion when carrying out checks. The lists presented in the revised code as guidance for employers are much more user friendly. Also of note is the removal of the need for annual repeat checks on employees on visas.
However, in light of the substantial increase in the maximum penalties for employing workers illegally, in practice it will still be vital that employers have their internal procedures in place for performing right to work checks correctly at the outset of employment and then subsequently be able to identify those employees whose visas are nearing expiry for checks at that point and action to be taken (applications for renewals and/or extensions as appropriate).