15 May 2014

A new draft code of practice on preventing illegal working has been laid before Parliament and is expected to come into force on 16 May 2014.

It is a statutory code, which updates the one issued in February 2008. It sets out the documents that employers need to check to establish a defence to the offence of employing an illegal worker and includes guidance on the factors that will be taken into account by the Home Office when determining the amount of a civil penalty.

The following changes are being made to the illegal working scheme:

  • Document checks: employers will no longer be expected to conduct document checks every 12 months for employees with temporary permission to work in the UK, although they are still obliged to do an initial right to work check. A follow-up check will instead be required as specified in the new code – generally, this will be when the employee’s permission to be in the United Kingdom expires, as evidenced by the employee's immigration documentation.
  • Acceptable documents: in an effort to simplify the process for employers, there will be a reduction to the range of documents which are acceptable for checking the right to work.
  • Increase in civil penalty: the maximum civil penalty will increase from £10,000 to £20,000 per worker found to be illegally employed where the employer does not have a 'statutory excuse' for the offence. When deciding what level of penalty to impose, the Home Office will consider a number of mitigating factors. These include whether it is the first offence, whether the employer reported suspected illegality and co-operated with the investigation and whether the employer had effective document checking practices in place.
  • Students: businesses employing students who have a restricted right to work will be required to obtain and retain a copy of evidence from a student’s education sponsor that the student is not working in breach of their permission. This will include details of their term and vacation times covering the duration of their period of study in the UK for which they will be employed.
  • TUPE: the grace period for conducting right to work checks for employees acquired as a result of the Transfer of Undertakings (Protection of Employment) Regulations will be extended to 60 days (from 28 days).

Another draft code – Avoiding unlawful discrimination while preventing illegal working – has also been published to give employers guidance on how to avoid race discrimination when complying with the duty to carry out pre-employment immigration checks. This code is intended to apply where employment commenced on or after 16 May 2014.

All employers should ensure that they are aware of the checks they are required to make and have processes in place to ensure the correct documents are checked and retained. Particular care should be taken when employing students to ensure that the required evidence is obtained to ensure they are not working in excess of their permitted hours.

If you would like more information, or specific advice, please contact Roger Bull, or get in touch with your usual Burges Salmon contact.

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Roger Bull

Roger Bull Managing Partner

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