Agricultural Employment Law Round-up

Right to Work Checks – October 2022 Changes

In 2020, an estimated 90% of the 75,000 seasonal workers in edible horticulture in the UK were EU migrants. Dependency on seasonal migrant workers remains high within the agricultural industry, which means it is important to carry out right to work checks correctly and be aware of recent legal changes.

During the pandemic, the Home Office made temporary changes to the right to work checks from March 2020. These changes relaxed the rules to allow checks to be carried out over video calls. Additionally, job applicants and existing workers were able to send scanned copies or photos of documents, rather than sending physical copies of originals.

If the employee was unable to provide any accepted documents, the employer also had the ability to use the Home Office Employer Checking Service as an alternative.

Changes to right to work checks

Recent changes to the right to work checks were announced and came into effect from 1 October 2022. Agricultural employers should be aware that there are three methods of checking that can be undertaken – online checks via the government website, manual checks and using an Identity Service Provider (IDSP).

• The online method should only be used for specific types of documentation, including Biometric Residence Permits (BRPs), Biometric Residence Cards (BRCs), Frontier Worker Permit holders and e-visas.
• For other forms of identification, a manual check should be undertaken to check, copy and verify original documentation. This method is only available for British and Irish nationals and others will have to continue using the Home Office Employer Checking Service.
• Alternatively, an employer may wish to appoint an IDSP to check the documentation on their behalf, using Identification Document Verification Technology (IDVT).

What should employers consider?

Agricultural employers should think carefully about how they implement controls to ensure they comply with the law when hiring seasonal workers. It is a criminal offence for an employer to employ an individual who it knows or has “reasonable cause to believe” does not have appropriate immigration status. It may also attract a £20,000 fine for each individual employed who does not have the right to work in the UK.

Employers should consider their staff turnover rate and how many of their employees and workers currently hold immigration documentation. This will inform a decision as to whether they feel they need to appoint an IDSP.

If an agricultural employer decides not to use an IDSP, it is strongly advised that guidance is created for those carrying out the right to work checks, to ensure they are conducted correctly.

Seasonal worker holiday entitlement

Following a case in July 2022, part-year workers must now have their holiday pay calculated in the same way as colleagues who work the full year and must not be pro-rated.

This may impact seasonal workers within the agricultural sector if they have permanent employment contracts that require them to work only certain periods of the year, such as fruit pickers.

It will require employers to give these employees at least 5.6 weeks of holiday every year and will apply even if the worker only works a few weeks each year.

How much holiday and holiday pay are seasonal employees entitled to?

The calculation will depend on how many days that employee worked per week. Seasonal workers who work for a specified number of hours per week are entitled to 5.6 weeks’ leave based on those hours worked.

Pay for the entitled holiday will be calculated using the average of the previous 52 weeks’ pay. Any full weeks in which no pay was earned should be disregarded for the purposes of this calculation.

This is only a selection of the issues that rural employers need to be aware of. If you’d like to carry out a more in-depth health check on your business, to ensure compliance and support ongoing growth and sustainability, our team of experienced employment lawyers can help.

This article was first published in the January 2023 edition of South East Farmer.

This content is correct at time of publication