Civil Penalties for Illegal Working Set to Increase in 2024
In an attempt to clamp down on the number of illegal workers in the UK, the Home Office has announced significant increases to the civil penalties issued to employers in the event they are found to be employing workers illegally.
Under the current rules, employers can be fined up to £15,000 per illegal worker for a first breach of the rules and up to £20,000 per illegal worker for any subsequent breaches. The fines are however set to increase significantly from 2024 (the precise date is currently unknown), with employers being fined up to £45,000 per illegal worker for a first breach and £60,000 per illegal worker for any subsequent breaches.
It has therefore become more important than ever for employers to ensure that all right to work checks are done correctly and in accordance with the legislation to avoid placing the company at risk of a significant civil penalty.
What steps do employers need to take to prevent illegal working and to obtain what is known as the statutory excuse, which is the defence against a civil penalty in the event an individual is found to be working illegally?
- Employers must carry out right to work checks on all prospective employees before their employment starts. The appropriate way to undertake a right to work check will depend on the prospective employee’s citizenship. If the employee is a British or Irish citizen, an employer should undertake a manual right to work check, checking physical hard copy documents or carry out a digital right to work check using an Identity Service Provider. For prospective employees who are not British or Irish citizens, the Home Office online right to work check service can also be used.
- Follow up right to work checks must be undertaken on employees who have time limited right to work and live in the UK. The follow up right to work checks must be completed on or before the date on which the employees right to work expires. It is the employer’s responsibility to monitor when an employee’s right to work comes to an end and to take appropriate action in relation to this.
- Employers must retain a copy of the ID document they have checked on the employee’s personnel file throughout their employment, and for a period of 2 years after their employment comes to an end. If an online right to work check was undertaken, the employer should retain a copy of the profile page showing the employee’s photograph and confirming their right to work. In both instances, the date on which the right to work check was undertaken should be recorded. This can either be done as a dated declaration on the copy of the document, or alternatively as part of a separate document.
It is also important for employers to comply with any further restrictions on an employee’s right to work, such as restrictions on the number of hours they can work, which can be the case if the employee is working under a student visa, or the type of work they are permitted to carry out.
This article sets out a very brief overview of the steps employers need to take in order to prevent illegal working and does not aim to provide detailed advice as to the appropriate right to work check options. In February 2023, the Government released updated guidance for employers on right to work checks and the specific steps that need to be taken in order to obtain the statutory excuse against illegal working. The guidance can be found via the following link:
Employer’s guide to right to work checks (publishing.service.gov.uk)
For further information regarding right to work checks, or if you have a query on another area of employment law, our friendly and professional team are here to help. Please speak with one of our Employment Law team on 01246 555 111 or contact:
Amy Hallam, Head of Employment 0114 3496989 or email amy.hallam@brmlaw.co.uk
Ellie Leatherday, Associate 01246 564 002 or email ellie.leatherday@brmlaw.co.uk
Jade Taylor, Trainee Solicitor 01246 560 587 or email jade.taylor@brmlaw.co.uk
