The new Right to Work rules have been in force since 1 October, bringing fresh responsibilities for businesses operating through contractual supply chains. Under the extended liability regime, businesses can now face civil penalties for illegal working further down certain contractual chains. But understanding where liability arises is only part of the challenge. Businesses also need to ensure they have effective safeguards in place to protect themselves. We’ll speak to immigration expert Shara Pledger about what employers should be doing in response.
The Home Office published its final guidance on 1 October, setting out the practical requirements businesses need to meet to protect themselves against extended liability. There are three important points to be aware of.
First, relevant contracts must contain prescribed terms. Second, businesses need effective systems to verify that workers are the individuals whose Right to Work has been checked. Contractual assurances alone are not enough. Third, the guidance confirms that businesses can rely on identity verification systems operated elsewhere in the contractual chain, provided they take reasonable steps to satisfy themselves those systems are effective.
For employers, the challenge is translating those requirements into workable arrangements across different sites and working relationships. So, what practical steps should businesses be taking? Earlier I spoke to immigration expert Shara Pledger by video-link from Manchester and I put that question to her:
Shara Pledger: “There's a huge amount that businesses need to be doing, even if they don't have anything that's really pressing right now for new arrangements that are taking effect after the first. So it will still be a requirement to look at the pipeline. So, what new agreements do we have coming in? Do we have existing agreements that are about to undergo material changes and be re-signed or extended, etcetera, because it will be really important to make sure that updated wording is incorporated into those agreements, as needed, to meet the new Home Office requirements about that contractual relationship between the employer that's having that extended liability and the third-party company that is providing the workers where that liability is originating from. The other aspect of the prescribed requirements that tends to be the most problematic for employers is the idea of ID verification. So the need for an employer to ensure that anybody that's effectively arriving on site, at location, etcetera, on a day-to-day basis is indeed the same worker that was expected to attend on that day and is someone that's had their right to work checked. Now, this is a big administrative burden, a new administrative burden, that is being placed on employers in respect of indirect workers, and it can feel a little bit strange because it's a lot higher than the burden that's put on them in relation to their own employees but that is deliberate because employers will have a much less involved relationship with these workers. It's a lot less likely that they'll be able to quickly spot if an imposter is arriving at work on any given day and as a result the Home Office is really insistent that these new ID verification checks are put in place so that each day it is confirmed that the right person is there. Now, in some circumstances, that might be quite easy to incorporate. So, if we talk about things like secure sites - this happens in the construction industry depending on the type of product, for example - there might be turnstile access, biometric access, or similar that is able to actually effectively check whether the correct person is turning up on any given day. In other scenarios, it's a lot more complicated to be able to confirm that, and employers definitely need to be looking at what is reasonable and proportionate for us to do, and when things are not reasonable or proportionate, or even feasible for us to be able to incorporate into a location, what can we do to protect ourselves by turning to other people in the contractual chain, or maybe even using third-party services to conduct some facial recognition or other ID checks?”
So, the key message for employers is that protecting against extended Right to Work liability requires more than updating contracts. Businesses need effective identity verification arrangements and must ensure the safeguards they put in place work in practice.
Shara is currently advising clients on these changes. If you would like advice on how the new rules affect your business, please do contact Shara – her details are on the screen for you.
