Fines for breaching Right to Work laws have tripled – time to know your Right to Work checks

From 13^th February 2024 the fines employers can receive if found to have employed an illegal worker tripled from –

• £15,000 to £45,000 per illegal worker for a first breach
• £20,000 to £60,000 per illegal worker for a subsequent breach

The risk to any business of receiving a fine for employing illegal workers will be obvious – a fine will cause significant financial hardship and at worse, risk a business not being able to continue operating.

Illegal Working, Right to Work checks and Fines

Illegal Working is regarded as one of the primary drivers of illegal immigration and harmful to both the individuals concerned and the economy generally – individuals without a Right to Work are at greater risk of mistreatment and those employing illegal workers are likely undercutting legitimate business by paying below minimum wage. Right to Work checks and the fines for employing illegal workers together form the legal regime to prevent illegal working.

Employers are front and centre of this regime – they must conduct Right to Work checks for every employee to establish they have a Right to Work. If they do not, and are found to have employed an illegal worker, they face significant fines.

If an employer conducts the correct Right to Work check, at the correct time and in the correct manner, if it later transpires an employer has inadvertently employed an illegal worker, by having carried out the Right to Work check the employer has established a defence against any fine.

Businesses in the hospitality and retail sector are likely to have one of the most diverse workforces of any sector in the UK economy, high numbers of workers employed on different work patterns and significant increases of their workforces throughout the year to deal with seasonal demands.  For these reasons businesses in the Hospitality and Retail sector will likely be faced with the most challenging Right to Work checks. This article will explore the issues facing the Hospitality and Retail sector relating to the regime for preventing illegal working, steps that must be taken to be complaint, the consequences of failing to be compliant and how we can help.

The general Right to Work checks

There are four types of Right to Work check:

• The manual check – mostly for British/Irish nationals
• The Digital Check through an IDSP – the Home Office has approved certain digital companies to provide digital checks via the use of an App – only for British and Irish nationals who have a valid passport.
• The Home Office’s online Right to Work check – for every non-British/Irish national who has a valid visa or other status that can be verified through the Home Office’s online system.
• The Home Office’s Employers Checking Service – an online service employers use to submit a request to the Home Office to establish a person has a Right to Work when the person has a specific visa application outstanding with the Home Office and awaiting decision or when the person’s existing visa has expired but they have made an application to extend their status or are appealing a refusal to extend their status.

Employers in the UK obtain protection against a fine if they undertake a Right to Work check and establish every employee has a Right to Work. This must be done for every employee before employment commences, irrespective of their nationality.

If the initial Right to Work check establishes an employee has a permanent Right to Work, no follow up checks are required. If a Right to Work is established for an individual on a time-limited visa, however, repeat checks must also be done at relevant times to establish they have a continuing Right to Work, and the employer then continues to have protection against a fine.

The correct Right to Work checks to apply can be difficult for employers as there exist so many different types and stages of immigration status.

There are a few guiding principles, however. Apart from British/Irish nationals and a few very limited exceptions, inspection of manual documents is not permitted to establish a Right to Work. For almost all individuals who are not British/Irish nationals, a Right to Work check has only been properly established when one of the two online checks have been undertaken. An original visa document will almost never be enough to establish a Right to Work. The most common visa document an employer will see is the BRP card – a card similar to a driving licence that has the individual’s photograph, personal details and visa status. Inspecting this card does NOT establish a Right to Work.

It is crucial for employers to understand that the Right to Work checks to be conducted are set out in very prescribed terms in Home Office guidance issued specifically to employers, and an employer must have complied in full with the checks required by the Guidance to obtain protection against a fine.

Employing student visa holders and sponsored workers

Certain visa holders also have restrictions on the number of hours they can work per week and types of work they can undertake – in the main these are student visa holders and workers sponsored by another employer who want to undertake supplementary work with a second employer.

Students, depending on their course, are only permitted to work a maximum of ten or twentyhours during term-time but can work full-time hours outside term-time.

Individuals on a Skilled Worker visa and sponsored by another employer can presently only work 20 hours per week for another employer, in the same occupation as their sponsored work or in a job on the Shortage Occupation List. (From 4^th April however they will be able to work an additional 20 hours in any job eligible for a Skilled Worker visa).

Additional evidence must now be obtained in relation to these visa categories to employ them in compliance with their restrictions to obtain protection against a fine.

It is extremely important to emphasise the additional scrutiny required by employers on the Right to Work check results of these visa categories and the additional evidence that needs to be obtained– fines are issued not simply for employing an illegal worker but also for employing a visa holder who has a general Right to Work but is subject to specific restrictions which have not been followed.

This is the area where businesses in the hospitality and retail sector may be the most at risk. For student visa holders looking for part-time work in term time, businesses in the hospitality and retail sector will be an obvious first choice. Businesses will also likely be able to offer full time hours outside of term times. The hospitality and retail sector is therefore an extremely attractive sector for student visa holders – and the availability of student visa holders for part-time/full-time work attractive for businesses in the sector. Ensuring the correct checks are undertaken, that the results are understood and applied, and relevant evidence obtained is critical to have a defence against a fine.

Failing to establish a Right to Work – The problems don’t start or end with the fines

Impact on reputation and business operation

Immigration Officials on a business premises is not a good look! If the Home Office have received reports of illegal working at a business, or conducted their own enquiries and suspect illegal working, Immigration Officials can visit business premises unannounced to search the premises and interview all staff and managers. This can result in a business requiring to close that day and lose trade. This could happen with an audience of customers.

Employers who hold a Sponsor Licence

If a business has a Sponsor Licence and employs skilled workers, fines for employing illegal workers can result in their Sponsor Licence being revoked, or at the very least a compliance investigation. A licence being revoked has the consequence that any sponsored workers would have their visas revoked, of course resulting in the loss of employees but also with huge consequences for the individual workers.

Employers who wish to apply for a Sponsor Licence

For businesses that may wish to apply for a Sponsor Licence to recruit skilled workers, any fines received previously are of course taken into account when considering if a business should be granted a Sponsor Licence. Even if a business has not received any fine previously, when applying for a licence before making a decision the Home Office can inspect a business to be satisfied it is complying with Right to Work checks.

How can we help?

Right to Work training

At first the different Right to Work checks to be completed for different workers, understanding the results, obtaining specific evidence etc can seem complex and overwhelming.

We offer Right to Work training for businesses of every size. After as little as a half-day of training, we are confident we can cover all the essentials and leave a business with the confidence to conduct the correct checks and establish their protection against a fine. Individual cases can arise on occasion that are complex and need specific legal advice, and our Immigration team can provide that advice.

Challenging fines

If the Home Office consider illegal working has occurred, it will issue a request to the employer to provide information relevant to the case and whether a Right to Work check was conducted. Often requests are issued when in fact the employer has properly established a Right to Work. We can assess the validity of any request and assist in making representations to the Home Office based on the circumstances. It is possible to successfully challenge potential or issued fines, and we have success in doing so. It is also possible, even if a fine cannot be challenged, to seek reductions in the final amount payable.

The Home Office have repeatedly stated they are increasing their enforcement of illegal working in the UK and recent statistics show they have done so. The Hospitality and Retail sector continues to face major economic challenges and staff shortages. It seems more crucial than ever that businesses understand the checks so they can recruit with complete confidence and avoid further financial pressures by falling foul of the rules and receiving a fine.

If you’d benefit from advice on dealing with this, contact Mark Templeton.

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