Right to Work Checks with Expert HR Solutions

At the start of 2024 the government introduced a new statutory code of practice came into force aiming to preventing illegal working.

Employers were fined nearly £8M in the last half of 2023 with almost 400 penalties and 685 illegal workers identified. All employers must ensure they have robust recruitment and selection practices in place that are compliant with the Code.

The starting point for a civil penalty is now £45,000 per worker for a first breach and £60,000 per worker for repeat breaches. Reductions may be applied if there are mitigating factors or if it is a first penalty and payment is made in full within 21 days.

The code applies to all right to work checks, including where a follow-up check is required to maintain a statutory excuse. It sets out how employers can establish a statutory excuse by undertaking right to work checks and how civil penalties will be administered and calculated. To establish a statutory excuse against a civil penalty in the event that an employee is found to be working illegally, employers must do one of the following before the employee commences employment:

• A manual right to work check;
• A right to work check using identity document validation technology via the services of an identity service provider (British and Irish citizens only); OR
• A Home Office online right to work check.

Employers must also carry out follow-up checks for employees who have a time-limited right to work.

The mitigating factors for the purpose of calculating the civil penalty are:

• Where the employer has reported its suspicion about the right to work of an illegal worker to the Home Office.
• Where the employer has actively cooperated with the Home Office during its investigation into the employer’s compliance.
• For a first breach only, where the employer can demonstrate that it has effective recruitment practices in place.

AT Expert HR Solutions Ltd we believe Employers should:

• Read and familiarise themselves with the new code of practice.
• Review (and update) existing policies to ensure that right to work check files and processes are up to date and compliant with the government’s requirements.
• Consider providing training to employees responsible for carrying out right to work checks to ensure they are up to date with the processes and steps that need to be taken.
• Where possible, carry out a review of right to work checks held for the current workforce, particularly if sponsoring migrant workers.

If you would like help on this or any other employment law matter please call us on 01202 611033.