On 8 February 2024 the Home Office updated its Employer's guide to right to work checks. The guidance sets out the steps that employers should take to satisfy themselves that those they employ have a right to work. Where a valid check has been carried out an employer will obtain a statutory excuse against a civil penalty in the event they unintentionally employ an illegal worker.

The changes

The headline changes contained in the updated guidance are:

• Penalties: the update reiterates that the maximum civil penalty for employing an illegal worker without a statutory excuse has increased from £20,000 to £60,000 per illegal worker.
• European Economic Area (EEA) workers and family members without a valid right to work: Employers will no longer benefit from a 28-day grace period on their statutory excuse where they discover that an EEA national or family member of an EEA national employed before 30 June 2021 has not applied for a new right to work. Instead, employers are now expected to take ‘the appropriate action’ if they find out a relevant staff member does not have a right to work. The guide is not prescriptive about the action the employer is required to take, but does state that it may include contacting the Home Office for support or taking steps to terminate employment.
• Supplementary employment: where holders of skilled worker visas (including Health and Care Visas) are recruited to do additional work outside their sponsored employment, employers must now take steps to ensure that the additional work meets the conditions of “supplementary employment”. This is a significant change for employers. Although this change applies to all employers, it will be of particular interest for NHS employers operating bank arrangements as they are most likely to be engaging staff in work that qualifies as supplementary employment. Previous versions of the guidance allowed employers to rely solely on confirmation in a Home Office online check to establish a statutory excuse. The new guidance now requires employers to go the extra mile to establish a statutory excuse by:
  • checking that the worker still works for their sponsor in their sponsored role – the guidance recommends that employers do this by obtaining a letter from the worker’s sponsor
  • confirming that the work type the worker plans to do with the employer is either in the same occupation code or a shortage occupation code as their sponsored role; and
  • confirming with the worker that they will not be doing more than 20 hours a week in total of supplementary employment, either with the employer or elsewhere.

The updated guidance applies to right to work checks undertaken on or after 13 February 2024. Organisations should also be mindful that in addition to employees, these obligations will extend to workers where they are directly engaged.

Next steps

With the UK Government taking a stronger position on the prevention of illegal working, the updated guidance serves as a useful reminder that employers need to ensure that they are carrying out right to work checks correctly. All employers should review their current arrangements to ensure that their routine right to work checks are compliant with the new guidance.

How Capsticks can help

Capsticks has significant experience in supporting employers with international recruitment and immigration law issues. If you would like access to advice, training or need further guidance on these changes (either generally or in relation to a specific case) please contact Lee Carroll or Nicole Johnson.