New code published on preventing illegal working

The Home Office has published a new draft statutory code on preventing illegal working and will replace the existing 2008 code. There are several key changes that employers and employees need to be aware of:

Document checks
There has been a reduction in the range of documents which will be acceptable for checking the right to work.
Employers are no longer automatically required to conduct repeat document checks every 12 months in relation to employees who only have limited leave to enter or remain in the UK. A follow-up check is now generally only required when the employee’s permission to work in the UK expires, which will be evidenced by the documents produced for the initial right to work check.

Students
Employers who employ overseas students who have a restricted right to work in the UK will now be required to obtain a copy of the student’s term time and vacation timetable as additional evidence that they are not working in breach of any restrictions.

TUPE
Transferees in cases of TUPE transfers now have a 60 day grace period (previously 28 days) to carry out their first document checks following the transfer.

Penalties:
The maximum penalty for employing illegal workers has doubled to £20,000. There is now a “consideration framework” and a “penalty calculator” to help determine and calculate the penalty amount. Employers who receive a penalty will have the option to pay by instalments over an agreed period of time (this will usually be up to 24 months). Penalties will be reduced by 30% where payment is received in full within 21 days of receiving the civil penalty notice.

Comment

There has been a welcome relaxation of some of the rules relating to the prevention of illegal working. However, as employers can now a face fines of up to £20,000 for employing illegal workers, it is essential that individuals involved in the recruitment process familiarise themselves with the new code and ensure that they have in place a strict procedure for conducting the necessary checks. Employers who employ overseas students with a restricted right to work in the UK need to be particularly alert to the relevant change outlined above. Employers are reminded that provided they follow the code and carry out all of the prescribed checks using acceptable documentation before the employment comments, they will have a statutory excuse against liability for a civil penalty.

This content is correct at time of publication