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Bulgarians and Romanians: what employers need to know about right to work checks

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Following a consultation about right to work checks, the government has proposed more changes from April 2014. The aim is to make it simpler for employers to carry out the checks and to get tougher on rogue employers.

Completing checks properly

Under current rules, employers can be fined up to £10k per illegal worker. Various mitigating factors may reduce this fine. If full pre-employment right to work checks were completed, the employer has a statutory excuse and no fine will be levied.
It is proposed that partial checks should no longer be accepted as a mitigating factor. Therefore it will be even more important to complete checks before an individual commences employment. Employers checking at a later date will still have some comfort that the employee has the right to work, but will be vulnerable if it emerges they were provided with fraudulent documentation. 

Employers need to understand the requirements for a full check and exactly which documents are acceptable proof of the right to work in the UK. The government claims this will become easier as Biometric Residence Permits are rolled out more widely and the list of acceptable documents is shortened, but nevertheless the situation will still be complicated where an individual has can only produce non-standard documentation.

Repeat checks

If an employee has a limited right to work in the UK, employers are currently required to repeat the right to work check every 12 months. The government intends to replace this requirement with an obligation to repeat the check when the employee’s leave is due to expire. Whilst this seems more logical and less of an administrative burden, it will not necessarily be more straightforward. Most employees in this situation will be applying for further leave to remain and employers will be increasingly reliant on the Home Office Checking Service to confirm that an application is pending. 

Students

Depending on their level of study, visa students may be permitted to work part-time in term time and full-time in the holidays. The government is concerned that some students are breaching their visa conditions. To help employers establish what a student can and cannot do they suggest that Tier 4 students should be required to provide evidence of their term dates. Further consultation is needed to identify a system that will work in practice.

TUPE

The government plans to allow employers 60 days to complete right to work checks following a TUPE transfer. This is helpful, as many transferees taking on large numbers of staff find it impossible to comply with the current 28 days.

Penalties

The Home Office will continue to issue warning letters, but only for first time offenders who fulfill a long list of mitigating factors. Generally first offenses will attract a fine of up to £15k. This can be reduced by reporting suspicions of illegal working, actively co-operating in investigations and paying any fine within 21 days. The plan is to increase the maximum civil penalty for repeat offenders from £10k to £20k. 

The Home Office and the Department for Business, Skills and Innovation are considering pursuing individual directors if the employer fails to pay a fine. This raises concerns under company and partnership law and partners or directors with no direct involvement in hiring and checking staff may become very concerned.

The Home Office is already making increased use of existing powers to prosecute those who knowingly employ illegal workers. Even those who do not perceive themselves as a “rogue employer” can fall into this trap if they know an employee’s current visa has expired or they are no longer compliant with its terms, but turn a blind eye and fail to do anything about it.

Claire Hedges is an associate in the employment team at leading East of England law firm Birketts.

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