On 6 May 2014, the government published draft codes of practice on preventing illegal working and avoiding discrimination. The new regulations increase the fines that can be imposed on employers for employing illegal workers whilst giving guidance on how to conduct right to work checks. The Government also reminds that it is illegal to discriminate against a potential or existing employee on race or on racial grounds and these cover colour, nationality and ethnic or national origin.
When do the new rules take effect?
- The new rules will apply to any employment commenced on or after 29 February 2008 where the breach of the immigration rules took place on or after 16 May 2014; or
- Where an initial check on a potential employee, or a repeat check on an existing employee, is required on or after 16 May 2014 in order to establish whether they are legally eligible to work in the UK.
The changes include an increase in the maximum civil penalty from £10,000 to £20,000 to be imposed on employers found to be employing an illegal worker. In addition the maximum fine for employers who pay salaries below the national minimum wage has increased from £5,000 to £20,000. The government intends to publish the names of any businesses that have failed to pay the minimum wage.
Under the new regulations employers who knowingly employ illegal workers can be imprisoned for up to two years and there is no cap on the financial penalty that can be issued for such employers.
The new regulations also remove the requirement for employers to carry out right to work checks on employees with temporary permission to remain in the UK every 12 months (“the annual check”). However employers are still required to undertake follow up checks on the visa status of employees and ensure a review is carried out when an employee’s visa has expired. We would also recommend that you undertake an initial review, in advance of an employee’s visa expiring, so that Magrath LLP can advise of any further visa options before the visa expires.
The Home Office has reduced the list of documents that can be accepted to prove an individual’s legal right to work in the UK. In addition, employers hiring students are required to retain a copy of the documentary evidence obtained from the student’s education sponsor which confirms the study term and vacation dates during the period for which the student will be employed.
Employers hiring individuals as a result of the Transfer of Undertakings (Protection of Employment) Regulations are provided with a grace period of 60 days from the date of transfer to conduct right to work checks for these employees.
As an employer it is your responsibility to prevent illegal working in the UK by ensuring that your employees have the correct right to work here. By following the Home Office’s guidelines on how to carry out right to work checks the employment of illegal workers will be prevented and the risks of a civil penalty being issued for non-compliance will be minimised.
There is also a fast payment option for first offenders. Penalties paid within 21 days will be reduced by 30%.
Should you have any questions on how any of the above changes will impact your business please contact [email protected].