Hospitality sector under scrutiny over right to work checks

New data published by the Home Office shows that the hospitality sector is a particular focus for immigration enforcement. It means businesses operating in the sector need to be vigilant and comply with updated Home Office guidance to avoid the risk of financial penalties which are, typically, coming in at around £10,000 per business.

The data was collected between 1 October and 31 December 2021 last year and shows that Home Office officials issued 107 fines, worth a total of £1.69 million, relating to 150 people found to be working illegally at 48 UK businesses. More than half of penalties issued went to takeaways or restaurants which are desperate for staff and, in many cases, cutting corners.

Shara Pledger has written about this for Out-Law. She says:  “It’s clear that the hospitality sector remains a focus for immigration enforcement checks. Right to work checks continue to see adjusted measures due to Covid-19, innovation through increased use of technology, and change as the UK's migrant workforce continues to develop post-Brexit. There is much to be done within organisations to ensure total and ongoing compliance with the right to work scheme.”

She goes on to say: “Employers can protect themselves from hefty financial penalties by seeking out training on the right to work scheme that covers the legal principles of permission to work and the practical steps needed to check and retain appropriate proof.”

So how, exactly, can employers protect themselves? Maria Gravelle is one of the lawyers in our immigration team and earlier she joined me by video-link from Edinburgh. I put that question to her: 

Maria Gravelle: “So, the Right to Work scheme and Right to Work Checks are designed to provide what's called a ‘statutory excuse’ for employers who are employing individuals and that is because there are penalties if an employer accidentally, or knowingly, employs somebody who turns out to be an illegal worker, but if the business has performed a robust and coherent right to work check in line with the Home Office guidance then they will have a statutory excuse against those financial penalties. The Home Office recently published their statistics on illegal working penalties and there were, in the last quarter of 2021, 107 fines issued to various businesses, half of which were in the hospitality sector. So, they're certainly not shy to issue these fines which can range up to £20,000 per worker, so can be very significant costs to a business. Right to work checks are relatively straightforward to carry out if you have a good process in place for doing so. So, notifying prospective employees when they are offered a role that they will have to perform one of these checks, making sure that the check is carried out before the first day of employment, and making sure that the correct type of check is carried out. Now, the correct type of check is going to depend on the individual’s status and what can be complex in approaching this is doing so in a non-discriminatory manner. Race discrimination is a claim that many employers see, and that encompasses discrimination on the basis of nationality. So, approaching individuals in a non-discriminatory way is very important and the best way to do that is to simply apply the same procedures to everyone and making sure that employers take a consistent approach.”

Joe Glavina: “Why does the focus rest with hospitality in particular, Maria?” 

Maria Gravelle: “That's a very good question. The Home Office and the hospitality sector have a very complex relationship, I think. There are not many routes available to the hospitality sector in terms of sponsoring workers. There are certainly some roles within the hospitality sector that are eligible for sponsorship, but not many and there are not many other visa routes for particular roles that you would find in that sector and, as we have seen from the latest data, as I say, the last quarter of 2020, the hospitality sector received around 50% of the total fines that were issued for illegal working. Why the Home Office has such a focus on the hospitality sector no one would know but it certainly is clear that they do consider it to be a high risk sector and it is a sector in which they are very much prepared to take compliance action. So, if there are businesses in the hospitality sector who require a sponsor licence, who are struggling with staffing levels perhaps as a result of Brexit, who have skilled roles that they would be interested in seeking sponsorship for, then we would definitely recommend taking advice because, unfortunately, the Home Office are going to scrutinise a business in that sector more so than several others.”

Joe Glavina: “Final question, Maria, thinking about our audience. To what extent is HR involved in immigration compliance within a business, or is it farmed out to other specialists?”

Maria Gravelle: “So the HR team is almost the frontline when it comes to right to work check compliance and immigration compliance, particularly where a business does have a sponsor licence. More often than not, it will be a member of the HR team who is a level one user or another one of the key personnel named on that licence but, even when there isn't a licence in place, normally it is the members of the HR team who are carrying out right to work checks. So, it's really important that members of the HR team of a business, at all levels, are trained on how to carry these checks out appropriately, are trained on what questions they should be asking, on what documents they should be looking for and, certainly, we offer training sessions designed specifically to tackle all of these issues. So, if there are clients, or businesses, who know that they have got personnel in place or, perhaps, they've just recently had a change in their HR personnel, and there is any concern about the level of training because, you know, these rules are very complex. So, we can certainly assist with training and providing the background to the right to work scheme, and flagging some of the pitfalls that businesses who do encounter these fines might fall into.”

Shara’s article deals with a number of those points in more detail. That’s: ‘Hospitality sector continued focus for UK immigration enforcement’ and is available from the Out-Law website. We have put a link to it in the transcript of this programme.

LINKS
- Link to Outlaw article: ‘Hospitality sector continued focus for UK immigration enforcement’