The Home Secretary has announced that businesses operating with zero-hours contracts in the gig economy will be required to carry out right to work checks as if there is an employment relationship to avoid civil penalties of up to £60,000 per worker found to be working illegally. Expanding right to work checks to the gig economy should require primary legislation. If this is added as an amendment to the Employment Rights Bill which is currently in the House of Lords, this could become law later this spring.
The consequences for getting it wrong can be severe. As well as hefty civil fines, if you are sponsoring overseas nationals, you could be downgraded on the register of sponsors, or lose your sponsor licence altogether, as well as the workers you are sponsoring, who may have to leave the country.
Checks organisations carry out on employees will be extended to cover gig economy and zero-hours workers in sectors such as construction, food delivery, beauty salons and courier services.
At the same time a survey of employers commissioned by the Home Office has been published, showing that though employers appreciate the basic principles of right to work checks, key mistakes are widespread (see below).
A Home Office press release to accompany the Home Secretary’s announcement warns: “where businesses fail to carry out these checks, they will face hefty penalties already in place for those hiring illegal workers in traditional roles, including fines of up to £60,000 per worker, business closures, director disqualifications and potential prison sentences of up to five years.”
The announcement was accompanied by statements from Deliveroo, Just Eat and Uber Eats insisting that they voluntarily carry out such checks. Setting up correct right to work practices and maintaining them may be more onerous for smaller companies with high turnover of contractors. However, right to work checks are simple when you know what you are doing. We advise on all aspects of work immigration compliance and if you need advice please contact our friendly immigration experts. We are highly ranked in legal guides for our immigration advice for employers and employees.
If carried out and recorded correctly, right to work checks protect you from civil penalties of up to £60,000 per illegal worker for repeated breaches. Ensuring compliance with illegal working legislation is increasingly important, with enforcement activity increasing too.
Announcing the expansion to zero-hours contractors, Home Secretary Yvette Cooper said: “these new laws build on significant efforts to stop organised immigration crime and protect the integrity of our borders, including increasing raids and arrests for illegal working.”
The Home Office said this “crackdown on illegal working” accompanies “a ramp-up of operational action by Immigration Enforcement teams, who since July have carried out 6,784 illegal working visits to premises [up 40% year-on-year] and made 4,779 arrests [up 42%].” In the same period, 1,508 civil penalty notices have been issued.
Who will the right to work legislation affect and when is it expected?
Expanding right to work checks to the gig economy should require primary legislation. If this is added as an amendment to the Employment Rights Bill which is currently in the House of Lords, this could become law later this spring. The scope of this change will then become clearer, though for now the Home Office is referring to “businesses hiring gig economy and zero hours workers” rather than individuals hiring self-employed people.
The range of companies that will need to be on top of this change is still likely to be wide, with the Home Office giving examples of sectors such as couriers, construction, food delivery and beauty salons. In preparation for the change and with enforcement activity rising, anybody concerned should seek legal advice sooner rather than later.
What do right to work checks protect you from?
The consequences for getting it wrong can be severe. As well as civil fines, if you are sponsoring overseas nationals, you could be downgraded on the register of sponsors, or lose your sponsor licence altogether, as well as the workers you are sponsoring, who may have to leave the country.
Hiring someone you have reasonable cause to believe is working illegally could land you with a criminal prosecution, potential prison sentence of up to five years and / or an unlimited fine.
An individual working in the UK in breach of their immigration conditions faces a bar from returning to the UK of up to a year or, if UK Visas & Immigration (UKVI) believe deception was used, up to 10 years. It is also a criminal offence for an individual to work in the UK if they know (or have reasonable cause to believe) that they don’t have permission. They may also face imprisonment and seizure of illegal earnings.
Conducting right to work checks correctly
Right to work checks involve verifying a worker’s legal eligibility to work in the UK. The process includes reviewing the correct documentation in person and if need be, using a worker’s digital share code to check on the Home Office online checking service. To protect yourself fully, as well as carrying out checks correctly, you must keep records of relevant documents and carry follow-up checks when someone has a time-limited right to work.
To avoid discrimination issues, you should apply checks consistently across all workers regardless of nationality or ethnicity, adhering to government codes of practice. Be sure to regularly review Home Office updates to ensure compliance with the constantly evolving rules.
You can find out more about right to work procedures here or contact us if you are unsure. We can advice your HR team on identifying acceptable documents and using online verification tools effectively.
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Other right to work changes to be aware of
The Home Office’s right to work guidance was last updated in February to reflect the recent digitalisation of Britain’s immigration system and the introduction of the eVisa. As physical Biometric Residence Permit (BRP) and Biometric Residence Cards (BRC) have now been phased out, eVisas have replaced them for generating the share codes to check the right to work of someone who is not British, Irish, with a right to abode, or exempt from immigration control. As not all proof of immigration status has been successfully updated to the new eVisa, the Home Office right to work guidance was amended to include transitionary measures. Workers with ongoing permission to stay in the UK may for the time being use expired BRP or BRC cards to access the online right to work checking service to prove their right to work using a share code.
The new guidance also clarifies that clipped passports (where the corner is cut off some pages to show they’re cancelled, not expired) are not acceptable right to work proof even though non-clipped passports that have expired still are for British and Irish citizens.
Home Office reveals employers’ common right to work mistakes
The Home Office has published an independent survey it commissioned to look at employer awareness of right to work checks and it is quite revealing. Of all employers surveyed, 80% answered at least one of the compliance questions incorrectly and were therefore at risk of non-compliance. Micro and small businesses answered more key compliance questions incorrectly than larger employers.
41% of construction sector employers said they believed illegal working was common in their sector, the highest across all sectors. Worryingly, 51% of employers said they would accept a driving licence or bank statement as proof of right to work.
Incorrect right to work practice does not afford any protection from civil penalties which in the last recorded quarter amounted to over £20 million in issued fines.
Other Spring UK immigration developments
Spring changes in the UK’s Immigration Rules, immigration fee hikes and changes in the thresholds for different sized companies under the Companies Act 2006 may also have immigration consequences for some employers. These include:
- Curbs to self-sponsors and investors sponsored as Skilled Workers
- Curbs to the costs that can be recouped and potentially clawed back from sponsored workers
- Minimum salary threshold rises for Skilled Workers on the most discounted rates
- Care worker sponsors must first try to recruit from a local pool of unsponsored care workers
- Creative workers on Temporary Work – Creative Worker visas can’t fill permanent vacancies
- Global Talent visa – some technical changes to applying for endorsement
- Changes to visitor and ETA rules
- Financial thresholds for company sizes that could affect sponsor costs
- An immigration fees price hike
Contact one of our immigration lawyers if you are concerned about any of these changes.
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