Staffing up for Christmas? Get your ‘Right to Work’ checks right

With the festive period fast approaching, many sectors will soon be ramping up their workforces to prepare for the demands of the Christmas period.

With the festive period fast approaching, many sectors will soon (if they haven’t started already) be ramping up their workforces significantly to prepare for the demands of the Christmas period. It is estimated that some online retailers will engage an additional 20,000 members of staff to keep up with the volume of online orders and deliveries. In addition to engaging new temporary staff, some employers will deal with fluctuations in demand by asking part time employees, such as students, to work additional hours during this time.

In the Christmas rush, employers should not forget about immigration compliance matters which are brought into focus by recruiting large numbers of temporary staff or by increasing hours at short notice.  Below, we deal with some commonly asked questions in relation to Right to Work checks.

Do I need to carry out right to work checks on employees who are engaged for a short period of just a few weeks? What about temporary workers and agency staff?

Right to work checks have to be carried out on employees regardless of how short the engagement is. Therefore right to work checks must be carried out on seasonal fixed term and temporary employees in the usual way. Employers should remember to diarise visa expiry dates even if the intention is for someone to be engaged on a fixed term contract for a short period of time.  In many cases the contract of employment may be extended at a later date which may mean that the visa expiry date becomes critical.

An employer is only liable for knowingly or negligently employing an illegal worker if they are employed: so workers and self-employed contractors are not technically included in the offence. However, what matters is whether the individual is in fact an employee by law and that means that businesses should look beyond the label given to certain categories of worker and carry out a risk assessment to consider whether it is worthwhile carrying out right to work checks in any case. This is especially important for employers who engage a significant number of workers.

Some businesses may decide to carry out right to work checks on certain workers to mitigate against the risk of liability for an illegal working offence, where there is a significant risk of an employment status claim in the future.  If an individual were to succeed in proving that he/she was an employee and if the employer had not carried out right to work checks, it may be exposed to civil and criminal liabilities. In addition to the legal risk, there can be a significant risk of reputational harm if it transpires than an individual was an employee and an illegal worker. For this reason, we recommend that employers take advice on the risk of their workers being classed as employees before deciding who to carry out right to work checks on.

Businesses that use employment agencies to recruit their staff do not have to carry out Right to Work checks if they do not act as the employer of the individual.

What if a manager is keen to have a new start commence work urgently to cover a critical shortage? Can they carry out Right to Work checks retrospectively?

Right to work checks must be carried out for all potential employees before they start work.  A retrospective check doesn’t provide a statutory excuse and may expose the business to risk.  We recommend that processes are in place to prevent managers from permitting employees to start work before the checks are carried out.

How do I ensure that managers on remote sites are not allowing students to exceed restrictions on their working hours permitted by their visas?

Many employers will employ students on a part-time basis during the festive season and many international students will use the opportunity to work additional hours. Students are generally able to work part-time during their studies, and full time during vacations (and after completing their studies and before their visa expires).  However, some international students are not entitled to work at all. The Home Office guidance and the visa documentation presented by the student should be checked to ensure that any restrictions are taken into account.

Right to work checks need to be carried out on students in the same way as any other employee. In addition, for international students who are eligible to work, employers must obtain a print out from the education institution’s website of academic term and vacation dates (or a letter from the institution).

Employers are responsible for having a procedure in place to ensure that the individual does not work hours which exceed their allowance under their student visa. It is important to remember what these restrictions are and to ensure that managers do not lose sight of additional overtime worked over the busy festive period.  An electronic system is best to ensure that additional hours do not breach immigration restrictions.

What is likely to happen if I breach the rules?

Immigration Enforcement regularly takes action against employers to ensure compliance with illegal working laws.  The Immigration Act which came into effect in July 2016 increased the scope of the criminal offence so that employers who have ‘reasonable cause’ to believe that someone is disqualified from working will be criminally liable. Civil penalties are a common occurrence. 

The Government, at the Conservative Party Conference in early October, reiterated its position of increasing compliance efforts. Amber Rudd, the Home Secretary, stated the desire to create a “controlling migration fund” to ease the pressure on public services and to fund immigration enforcement. Enforcement action in relation to migrant workers is only going to become tougher.

What does this mean for me?

Having a rigorous process in place to ensure that right to work checks are properly carried out and that restrictions on working hours are complied with, is critical.  These checks will protect employers if an illegal employee is inadvertently employed, provided that the employer did not have ‘reasonable cause to believe’ that the person was illegal. For businesses which rely on line managers to carry out these checks, regular training is critical to ensure that they are carrying out appropriate checks and that they do not cut corners or allow staff to exceed their permitted hours.

Auditing your procedures to check that the processes are followed and that your documentation is complete is sensible, as many employers will discover gaps in the paperwork when they take a close look at what is happening in practice.

Elaine McIlroy (elaine.mcilroy@weightmans.com) is a Partner in the Employment, Pensions and Immigration Team and is based in Glasgow.

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