The UK government has recently introduced amendments to the Border Security, Asylum and Immigration Bill, including a significant change to extend right to work checks to cover alternative working arrangements, encompassing the gig economy and zero-hours workers, both of which previously fell outside the scope of the usual right to work regulations we advise clients on.
Why is the government broadening right to work obligations?
The amendment is part of a broader strategy to further combat illegal working and ensure fair competition across all sectors. The Right to Work Scheme that has been in place since 2008 requires employers to carry out prescribed right to work checks prior to employing someone regardless of a person’s nationality, even including British citizens.
However, as it stands, the Right to Work Scheme applies only to those employing individuals classified as an ‘employee,’ rather than employers of ‘workers’ and ‘self-employed’ individuals. The government insists that the UK’s modern labour market needs more up-to-date definitions to ensure that agency work and casual contract arrangements in the gig economy do not allow those with no immigration permission to work. It is also concerned with what it perceives as a lack of oversight in sub-contracting and commissioning services via intermediaries in industries such as construction and hospitality.
The draft amendment (NC5) is worded so as to stop self-employment meaning workers are engaged without the responsibility to conduct correct right to work checks.
What does the amendment to the Border Bill mean for right to work checks?
The proposed legislative change extends the scope of who is required to carry out right to work checks to prevent illegal working and the associated hefty sanctions for illegal working. This, the government hopes will provide parity and a level playing field in respect of business’ responsibility to prevent illegal working.
Amendment Gov NC5 to the Border Bill will change the heading “Employment” in the Immigration, Asylum and Nationality Act 2006 to “Employment and other working arrangements”. It also outlines these “other working arrangements” which will now involve liability for illegal working.
Currently, right to work checks are mandated for traditional employees under standard employment contracts*. The proposed amendment seeks to broaden this requirement to include:
- individuals engaged under contracts for services (as ‘workers’ and not in relation to a profession or business undertaking);
- individual sub-contractors engaged to provide work or services for a third-party by a person/organisation contracted by the third-party;
- and individuals sourced through online matching platforms/services.
In all the above cases, the right to work check will be the responsibility of the person/organisation engaging the individual unless there is an online matching service, in which case it will be responsible, rather than an end user.
*Please note that sponsor licence holders that are sponsoring self-employed workers are already required to carry out right to work checks on these workers (and retain evidence that they have done so) to ensure compliance with their sponsor duties.
What would expanding right to work liability mean for businesses?
Those who engage people (let’s call them for the purpose of this explanation ’employers’ or ‘engagers’) could become liable for an illegal working civil penalty of up to £60,000 per illegal worker along with potential criminal convictions and reputational damage, even where there is no contractual relationship between the business and the worker.
A Home Office press release trailing this expansion of right to work duties warned: “where businesses fail to carry out these checks, they will face hefty penalties already in place for those hiring illegal workers in traditional roles, including fines of up to £60,000 per worker, business closures, director disqualifications and potential prison sentences of up to five years.”
The announcement was accompanied by statements from Deliveroo, Just Eat and Uber Eats insisting that they voluntarily carry out such checks. Setting up correct right to work practices and maintaining them may be more onerous for smaller companies with high turnover of contractors. However, right to work checks are simple when you know what you are doing.
What should we do to prepare for right to work changes and when will they happen?
At time of writing, the Bill is currently at second reading in the House of Lords. The Bill is in draft form and as such can still be amended.
We understand the government plans to consult with businesses and stakeholders before implementing the changes, with the new requirements expected to take effect no later than 2026–27. It has already published an impact assessment for the proposed amendment.
‘Employers’ are advised to proactively assess and adjust their current right-to-work check policies to ensure compliance with the forthcoming regulations.
‘Employers’ may need to:
- update onboarding procedures: implement standardised right to work checks for all workers / contractors, regardless of contract type to ensure compliance;
- leverage technology: utilise digital verification tools, such as the Home Office’s online right to work checking service or approved providers of Identity Document Validation Technology (IDVT), to efficiently help facilitate compliance; and
- train HR personnel: ensure that hiring managers and HR teams are well-versed in the new requirements and procedures.
Conducting right to work checks correctly
Right to work checks involve verifying a worker’s legal eligibility to work in the UK. The process includes reviewing the correct documentation in person and if need be, using a worker’s digital share code to check on the Home Office online checking service. To protect yourself fully, as well as carrying out checks correctly, you must keep records of relevant documents and carry follow-up checks when someone has a time-limited right to work.
To avoid discrimination issues, you should apply checks consistently across all workers regardless of nationality or ethnicity, adhering to government codes of practice. Be sure to regularly review Home Office updates to ensure compliance with the constantly evolving rules.
You can find out more about right to work procedures here or contact us if you are unsure. We can advice your HR team on identifying acceptable documents and using online verification tools effectively.
Our lawyers advise on right to work and other immigration matters