Businesses found employing workers without a right to work can now be fined up to £45,000 per worker for a first breach, and up to £60,000 for repeated breaches. This is a threefold increase, and the first in almost a decade.
What is illegal working?
It is illegal to employ someone who does not have the right to work in the UK. Workers that are British, Irish, or settled in the UK have an indefinite and unrestricted right to work. Visa holders with time-limited permission will normally be permitted to work in the UK while their visa is valid, but some visas limit or prohibit work entirely.
Employers have an obligation to prevent illegal working and those in contravention of their obligations may be liable for civil penalties and/or criminal sanctions.
Civil penalties
A civil penalty is a fine levied against an employer found to be employing workers without a right to work. The maximum penalty for a first-time breach has increased from £15,000 per worker to £45,000 per worker. Repeat offending employers will be fined up to £60,000 per worker, up from £20,000.
Sponsor licence holders that fail to comply with their illegal working prevention obligations will also be in breach of their sponsor duties. Civil penalties can result in the downgrading or even revocation of an employer’s sponsor licence.
Criminal sanctions
Individuals can also be sent to prison for up to five years and may be liable for an unlimited fine if they’re found guilty of employing someone they knew or had “reasonable cause to believe” did not have the right to work in the UK.
The consequences of employing illegal workers are significant.
What should employers do?
To comply with their obligations to prevent illegal working, employers must carry out right to work checks on all prospective employees before their employment starts. An employer is excused from liability to pay a civil penalty if they can show they carried out valid right to work checks and retained records to prove that the checks were conducted correctly. This is known as a statutory excuse.
Employers should ensure that their onboarding and right to work checking processes are thorough enough to identify potential illegal workers before they start employment.
Other right to work changes
A worker sponsored by one employer is allowed (from an immigration perspective – not always from a employment perspective) to take supplementary employment with another employer. This supplementary employment is separate from that specified on the person’s certificate of sponsorship and is permissible provided:
- they continue to work for their main sponsor;
- the supplementary employment is in a role that is eligible for Skilled Worker sponsorship; and
- it is for no more than 20 hours per week.
The concept of supplementary employment is not new, but the Home Office has now updated its employer’s guide to right to work checks to clarify exactly what employers are expected to do to verify if a prospective sponsored worker being offered supplementary employment has the right to work.
The guidance recommends obtaining a letter from the worker’s current sponsor, confirming:
- they’re still working for their sponsor;
- the job description and occupation code of their sponsored employment; and
- their normal working hours.
Employers are also urged to ask potential employees if they are undertaking any other supplementary employment with another employer to ensure that they will not be doing more than 20 hours per week in total of supplementary employment.