Right to work checks from 1 July and Civil Penalty Scheme for employers

Government has released their guidance for both employees and employers on the new right to work checking system for EU, EEA and Swiss nationals from 1 July 2021.

From 1 July 2021, EU, EEA and Swiss citizens and their family members require immigration status in the UK in the same way as other foreign nationals. They cannot rely on a passport or national identity card to prove their right to work.

The guidance confirms that to prove an individuals’ right to work in the UK;

• Irish citizens can continue to use their passport or passport card
• All other EU, EEA and Swiss citizens will no longer be able to use their passport or national identity card.
• Instead, employers need to check their right to work online using the individual’s share code and their date of birth via the Home Office online right to work checking service, or
• Employers can still check physical documents manually if the right to work status cannot be checked digitally. An online service has been made available to find out which documents employers will need to see to prove right to work (or there are new Lists A and B (see more details below)).  You would need to see the original document with the individual present, retain copies of the documents and record the date the check was made.

The Home Office has also published a Draft Code of practice on preventing illegal working: Civil penalty scheme for employers (‘the code’) which takes effect 1 July 2021.  If implemented the code will apply to employers who employ staff under a contract of employment and will not apply to others undertaking work for you. The checks should be undertaken before employment commences.

The code includes information on how to conduct a right to work check, civil penalties which could be administered, determining liability and calculating the penalty amount, as well as temporary COVID-19 adjusted right to work checks.

The code includes updated Lists A and B which details the documents that should be checked by employers if the electronic service is not utilised. The documents in List A provide for a continuous statutory excuse, whilst List B provides for a time-limited statutory excuse and follow-up checks will be required.

The civil penalty scheme can be applied as the sanction for employing illegal workers. The code explains that penalty amounts will be calculated on a sliding scale based on non-compliant behaviour. Payments can be made in full (including an option for 30% reduction if paid within 21 days) or instalments can be agreed (up to 24 months).

If there is a statutory excuse then there will be no action taken. If the breach was within the previous three years, the penalty will then be calculated using the Civil Penalty Calculator based on two levels;

• The Level 1 table should be used where you have not been found to be employing illegal workers within the previous three years. The starting point for the calculation of the civil penalty is £15,000 per illegal worker before reductions are applied.
• The Level 2 table should be used where you have been found to be employing illegal workers within the previous three years. The starting point for the calculation of the civil penalty is £20,000 per illegal worker before reductions are applied.
• There are then various mitigating factors which can be used in order to reduce the penalty by £5,000 per factor. Such as, has the employer reported the suspected illegal worker to the Home Office, has the employer co-operated with the Home Office, do they have effective checking practices.

It is important that when undertaking the new right to work checks employers must not discriminate. See the ‘Code of practice for employers: avoiding unlawful discrimination while preventing illegal working’ for more information.

Aspire Comment:

The update will be welcomed by employers who have been awaiting guidance on what the right to work checking process will look like after 1 July 2021. Although it remains in draft format, the code of practice should provide employers with more specific information about their obligations post the grace period. The code should also act as a harsh reminder for employers about the consequences of failing to ensure that their workforce has sufficient right to work in the UK.

If you have any questions about how to carry out a right to work check, implementing a right to work policy or carrying out a compliance audit,  get in touch on 0121 445 6178 or email us on enquiries@aspirepartnership.co.uk.