Update to the Employer’s Guide of Right to Work Checks

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In this blog, we summarise the key changes that have recently been made to the Employer’s guide to right to work checks 

The updated guidance applies to right to work checks conducted on or after 13 February 2024 and (if done correctly) will enable employers to establish or retain a statutory excuse against a civil penalty for employing a person who is not permitted to do the work in question. Alex Christen and Lowri Jones report below. 

Who needs to follow this guidance? 

Put simply, any employer who engages individuals under a contract of employment, service or apprenticeship. Even if employers believe their employees have a right to work in the UK, they should still conduct right to work checks before employment begins, and during employment as appropriate. 

What are the changes in the new version of the guidance?

Raise in the civil penalty for employersAs employers know, it is important to carry out right to work checks because if they are not conducted correctly, and employees are working illegally, employers could face civil, or even criminal sanctions.  The civil penalty for employers found to be employing illegal workers has risen from 13 February 2024 to £45,000 per illegal worker for a first breach and £60,000 per illegal worker for repeat breaches (i.e. a further breach within 3 years). The maximum penalty will therefore only be levied on an employer who has breached the scheme on more than one occasion. The updated guidance reflects this increase in civil penalties. See our articles and videos here for further information on this change. 

The removal of the 28 day grace period for late applications to the EU Settlement Scheme 

One major change in the updated guidance is the removal of the 28-day concession to allow late applications to the EU Settlement Scheme (‘EUSS’) for employees who are EEA nationals or non-EEA national family members, who were employed on or before 30 June 2021 and who it transpires (during an internal audit or otherwise) do not hold a lawful immigration status permitting them to work in the UK.  Previously if an employer discovered an employee who had not applied for status under the EUSS but should have done to retain their immigration status in the UK, they could allow them 28 days to make a late application, without having to immediately end their employment.   An employer can no longer signpost an individual without lawful immigration status to this late application process. An employer is now required to take ‘appropriate action,’ and while this is not specifically defined in the updated guidance it includes contacting the Home Office for support or taking steps to terminate the employee’s employment.  This new approach, while less flexible for employees, is in line with the Home Office’s current more restrictive approach to late applications to the scheme in general. Although the updated guidance no longer states that a person with a Certificate of Application (‘CoA’ – a document showing the application has been made) is eligible to work, a person with a CoA should remain eligible to work provided the CoA is verified using the online Employer Checking Service.  

Compliance for employees taking ‘supplementary employment’  

The updated guidance also confirms that employers should secure additional evidence where they are employing someone taking “supplementary employment.” This is where an individual is employed by a licensed sponsor in their ‘main role,’ but (where permitted under the terms of their visa) they take on additional work with another employer.  Supplementary employment is only allowed for the same type of work that the employee is doing for their sponsor or for roles that are on the shortage occupation list.  The employee must continue to do their main sponsored role and any supplementary employment must take place outside normal contract hours and is limited to 20 hours per week.  As a result, there is an onus on the supplementary employer (as well as on the employee) to ensure that the employee meets these conditions.  Employers should take steps to ensure that the supplementary employment meets these requirements. The updated guidance helpfully expands on how employers can ensure the requirements on supplementary employment are met, for example, identifying which sponsored routes the supplementary employment condition applies to, and recommends asking the employee to provide a letter or other evidence from their sponsor confirming that they are still carrying out their main role, their normal contracted hours of work and the occupation code or job description for their substantive role.  Employers should also ask the employee if they are doing any other supplementary employment with another employer to ensure they will not be doing more than 20 hours a week in total of supplementary employment. We will cover updates on the other changes that are happening this year as they arise, and in detail in our forthcoming breakfast briefing:In the meantime, if you have any queries, please get in touch with our immigration team.