Preventing Illegal Working - Changes to Employer Obligations

Peninsula Team

May 14 2014

It is an offence to employ someone who does not have the right to work in the UK. Employers must be able to show that they have taken steps to ensure that their employees are not illegal workers. A new statutory Code of Practice has been issued in this area. Read below how the new Code changes employer’s obligations from 16th May 2014. Acceptable Documents There are two lists which contain documents considered as acceptable for demonstrating the right to work in the UK - the Lists have been amended by the new Code. There are no great changes but the Lists appear streamlined and List B has been split. The new lists appear here. If the documents checked are from List A, the employer will establish a continuous statutory excuse i.e. the person’s eligibility need never be checked again. If the documents checked are from Group 1 of List B, follow up checks are required at the point that permission expires. Previously, an employer had to check List B documents annually. At the point permission expires, if the employer is reasonably satisfied that the employee has an outstanding application to extend their permission, the excuse will extend for 28 days. This extension is there to allow the employer to verify where the application is up to by contacting the Employer Checking Service to receive a Positive Verification Notice which confirms the employee has the right to continue working. If the employer receives a Negative Verification Notice, employment should be terminated. If the documents checked are from Group 2 of List B, or the employee/prospective employee is not able to present an acceptable document because of an outstanding application, the employer must contact the Employer Checking Service to receive a Positive Verification Notice to preserve the statutory excuse. The statutory excuse will last for 6 months, upon which a further check is required. Students The new Code makes clear that, for students who have time-limited permission to work during term-times, employers must also get a copy of their academic term and vacation times covering the duration of their period of study in the UK for which they will be employed. TUPE transfers Employers who acquire staff as a result of a TUPE transfer are provided with a grace period of 60 days from the date of the transfer to correctly carry out their first statutory document checks. This period has increased from 28 days. Penalty Where an employer can show that they complied with the necessary steps in relation to checking documents, they will have a ‘statutory excuse’. Where an employer does not have a statutory excuse, the maximum fine is £20,000 per illegal worker. This has increased from £10,000. Contact Peninsula online for advice on this issue, or call us on 0844 892 2772 24 hours a day, 7 days a week, 365 days a year.

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