The Home Office is cracking down on illegal working – and focusing on hospitality – so ensure paperwork is up to date, says Corrine Bentham
Illegal working presents challenges for UK employers, who could face significant fines and reputational damage. Employers often struggle to comply with Home Office right to work guidance and in some cases are heavily reliant on overseas talent in order to manage ongoing skills shortages in the UK.
Illegal working remains high on the UK government agenda and the Home Office intends to increase illegal working enforcement by up to 50% in 2023.
The civil penalty for employers is set to increase from £15,000 to up to £45,000 per illegal worker and from £20,000 up to £60,000 per illegal worker for repeat breaches.
The hospitality industry continues to remain an area of focus for the Home Office and employers in this sector often receive a large proportion of the illegal working penalties issued. It is important that hospitality businesses consider their right to work compliance by following the five actions outlined below to ensure the illegal working risk within the business is minimised.
- Be ready for unannounced checks*
Ensure there are escalation policies and processes in place in the event of any communications received from the Home Office or any unannounced site visits. This will mean that during an unannounced visit, front of house staff will know how to respond and which colleagues to contact in order to minimise disruption. It is important to ensure that members of staff corresponding with the Home Office are aware of right to work requirements and of the organisation's data privacy obligations before disclosing any information.
Review right to work processes
Right to work policies and processes should be robust and right to work checks should be carried out before employment commences. There should also be ongoing tracking and monitoring of visa expiry dates for those working in the business with time-limited visas.
Right to work checks have changed significantly over the past few years with a move towards digital checks, but some still require the original document to be viewed in person. The in-person checks can be difficult for many organisations, but there are digital resources available, one of which is Recruiting Right UK
Ensure right to work files are in order
Audit existing right to work files to ensure the business has the correct right to work documentation on file for all employees (UK and non-UK nationals) and that their immigration permission allows them to do the role and number of hours have been employed to carry out.
If the employer is a registered sponsor, it is also a good opportunity to review the mandatory documents that must be retained for all sponsored workers. The audit could be carried out by internal staff with the relevant know-how or externally to obtain an independent analysis.
Audit all worker permits
Review the organisation's approach to checking right to work evidence for those who will not be direct employees, and ensure their visa types permit self-employment (where applicable). A common pitfall is that student visa holders are not permitted to undertake self-employment.
Train relevant staff
Arrange regular training for staff with responsibility for right to work checks in the UK to ensure their knowledge is up to date.
Employers who receive a penalty are named publicly on the Home Office website, which can cause severe reputational damage. Employers who hold sponsor licences need to be aware that illegal working penalties can result in the loss of their sponsor licence, which would result in significant operational disruption for many.
Corrine Bentham is a principal associate at Eversheds Sutherland