UK’s right to work check reforms confirmed for October

The government has confirmed that significant changes to the UK’s right to work regime will take effect from 1 October, following the publication of regulations and a draft Code of Practice setting out how the new framework is expected to operate. The reforms are designed to strengthen the government’s approach to illegal working, but for employers they raise important questions about how responsibility for compliance will operate in practice and whether existing processes remain fit for purpose. With the implementation date now confirmed, employers have limited time to understand the impact on their workforce arrangements, review their compliance procedures and prepare for a regime which could bring increased scrutiny and potentially significant penalties for getting it wrong. We’ll speak to an immigration lawyer about that.

The changes follow a Home Office consultation earlier this year and are intended to reflect the way labour is increasingly engaged through agency arrangements, subcontracting models and other non-traditional working relationships. The draft Code of Practice provides a clearer indication of how the new regime is expected to operate. With further practical guidance from the Home Office yet to come, employers are now beginning to get a clearer picture of the compliance framework they will need to work within.

For many organisations that means taking a fresh look at how workers are engaged, reviewing contractual arrangements with labour suppliers and considering whether existing checking processes will be sufficient under the new rules. It also raises broader questions about where responsibility will sit within increasingly complex workforce and supply chain structures.

So, let’s get a view on this. Shara Pledger heads up Pinsent Masons immigration teams and earlier she joined me by video-link to discuss it:

Shara Pledger: “We've known that changes are coming to the right to work scheme for a really long time now, and businesses have been sort of tearing their hair out trying to find out what's going to change and when is it going to change. So there will be, I think, probably a bit of a collective sigh of relief of the fact that we at least know what is happening now and why. So we know that it will be the first of October, we know that there will be the changes which effectively implement now a new sort of two-stage approach depending on whether you directly or indirectly engage workers. Now, I would probably put an asterisk next to the word relief because obviously there are changing systems and that is going to be a potential headache for some businesses regardless of what those changes would be, but we at least now know what the goalposts are, and everybody can move forward and make a plan.”

Joe Glavina: “What should employers be doing now, Shara, before the changes take effect?”

Shara Pledger: “We now know that we've got this sort of quite bright line between workers who are directly engaged and workers who are indirectly engaged and for those who are directly engaged we know that there is much greater onus on businesses to be doing more themselves. So it's really important for businesses to have conducted a really, really, thorough audit and have a good level of understanding of who do we engage and on what basis because where previously an organisation, a business, whatever it happens to be, may have taken the view of, well, we don't employ that individual so we can probably not worry too much about them. That will not be enough in future and it's entirely possible that a right to work check will be needed for somebody moving into that type of role from the first of October. Over on the other side of the coin we have the workers who are engaged indirectly, so that's through things like supply chains, for example, and we now know that there is this completely new requirement that's been put into the new draft code of practice for employers that effectively starts to specify what those commercial and contractual relations must look like. So things like the agreement between the end user and the labour supplier, what those agreements are, what the penalties of them might be, giving permission for the end user to be able to go ahead and actually audit that labour supplier and check that they are actually supplying the labour and checking that person's right to work before those individuals are arriving on site. So, lots and lots to do there, lots to have a look through. We also have this sort of final aspect of the indirect workers which is where, in my case my client, but where businesses that are using these labour supply organisations will need to be checking that the individuals arriving for work are indeed the people that they were expecting. So that's a whole new sort of identification, perhaps facial recognition engagement piece that might need to be looked at. Now in some sectors that will be very familiar. If we think of things like construction and infrastructure, for example, that will be quite a common feature of being able to gain access to a site, usually for things like health and safety and security reasons, but we now have this added layer to do with the right to work aspect of it as well. For some industries that might be something they're already familiar with, in others probably completely new territory.”

Joe Glavina: “How seriously should employers be taking these changes, Shara?”

Shara Pledger: “We've definitely seen a real committed focus from UK Visas and Immigration to stamping down on illegal work and obviously these measures are brought in in direct response to that continuing commitment to identify and remove illegal workers from the UK workforce. For that reason, it's really important that businesses and organisations take these new measures seriously. They will be employed. You only need to look at the statistics in recent months and years about the rising number of penalties that are being issued to employers in relation to right to work checks. Once this liability widens, we can probably expect that figure, and that number of penalties, to absolutely explode so it's really important that individuals and organisations do engage with these new measures because there really won't be any sympathy if they haven't done what they need to come the first of October.”

Shara has written about this development in some detail in her article ‘Timeline confirmed for employer check changes as UK right to work revamp revealed’ which is now available now from the Out-Law website. We’ve included a link to it in the transcript of this programme for you.

- Link to Out-Law article: ‘Timeline confirmed for employer check changes as UK right to work revamp revealed’