(4 min read)
The Home Office has recently updated the Employer Guide on Right to Work Checks, with the changes taking effect from 13 February 2024. These changes have significant implications for employers, as civil penalties for employing a worker illegally have tripled. In addition, there are implications for employers of employees who are EEA nationals or non-EEA family members employed prior to 30 June 2021. In this article, we will summarise the key changes and provide practical advice for employers to navigate these new requirements.
To have a defence against a civil penalty, employers must establish a statutory excuse. This can be established by carrying out adequate right to work checks prior to an employee commencing employment and maintained by doing repeat checks where required.
Key changes to the Employer Guidance
There were three main changes to the guidance in February 2024. These were:
- Increased civil penalties: The maximum civil penalties for employing a worker illegally have been increased. Employers can now face fines of up to £45,000 per employee for the first breach and up to £60,000 per employee for repeat breaches.
- Removal of the 28-day concession for late applicants to the EU Settlement Scheme: Previously, employers had a 28-day period to allow EEA nationals or non-EEA family members to apply late to the EU Settlement Scheme (EUSS) before terminating their employment. However, this concession has been removed. If employers discover that employees hired prior to 30 June 2021 do not hold pre-settled or settled status under the EUSS, and that they do not hold another visa entitling them to work, immediate action must be taken. This may include seeking support from the Home Office or terminating the employment.
- Additional evidence for supplementary employment: Employers hiring employees for supplementary employment (i.e. individuals sponsored by another employer for their main employment role) must now seek additional evidence to confirm that they are not working more than 20 hours of supplementary employment per week. This evidence can include a letter from their sponsor and confirmation from the employee regarding any additional work with another employer.
What do these changes mean for employers?
Whilst, strictly speaking, for employers following the correct processes the increase to the maximum civil penalties should not change their practices, if an employer's processes have not been updated for a while this is a good time to ensure that their Right to Work Check processes are compliant – both for new employees and those that require a repeat check.
The removal of the 28 day concession for EEA nationals (or non-EEA family members) to apply to the EUSS means that if employers discover that this category of employees have not got pre-settled or settled status under the scheme, and they do not have another visa that entitles them to work, they must take immediate action to rectify this. We have set out some practical guidance below for employers to consider if they find themselves in this situation.
Practical advice for employers of EEA Nationals (or non-EEA family members)
Employers who employed EEA nationals or a non-EEA family member before 30 June 2021 established a statutory excuse if they carried out a right to work check on those individuals prior to that date. Employers were not encouraged to run repeat checks on those employees after 30 June 2021 to check whether they had applied for the EUSS, as this could have amounted to discrimination. This meant that employers had to trust that employees were making the relevant applications required in order to evidence their right to work in the UK.
If you are an employer and learn by way of an internal audit, retrospective check or any other means, that an EEA national or non-EEA family member did not apply to the EUSS and does not hold any other form of permission to work in the UK, the employee may not have the right to work in the UK. At the point you become aware of this, you will no longer have a statutory excuse and therefore need to take appropriate action.
Below are some practical steps that the employer could consider:
- Communicate with the employee: Explain to the employee that their inability to evidence their right to work may result in termination of their employment.
- Late application to the EUSS: Consider whether the employee can make a late application to the EUSS. A valid application grants the employee the right to work until a decision is made. The employee will receive a Certificate of Application to use as evidence during this period.
- Termination of employment: If the employee is unable to apply to the EUSS or is unsuccessful, employers may need to consider terminating their employment due to their lack of right to work.
- Skilled Worker route: Explore the possibility of sponsoring the employee under the Skilled Worker route. However, note that this would require the employee to leave the UK to make the application and re-enter once the visa is granted.
Conclusion
The recent changes to the employer guide to right to work checks have significant implications for employers, particularly those with EEA nationals or non-EEA family members as employees. It is crucial to understand and comply with these changes to avoid potential civil penalties and ensure the right to work of your employees.
