New right to work checks could impact UK’s gig and agency labour

A major shift is on the way in the government’s illegal working enforcement regime. An amendment to the Border Security, Asylum, and Immigration Bill  - which is now passing through the House of Lords - proposes to extend right to work checks to include gig economy workers and agency staff. If passed, it would be one of the most significant changes to the right to work framework in years. It means that employers will be responsible for checking the immigration status of individuals even where there’s no direct employment relationship. The government says the change is needed to crack down on illegal working but for employers, and particularly HR teams, this could bring new legal risks, more admin, and operational challenges when engaging temporary or freelance labour. We’ll speak to an immigration expert about that challenge.

As things stand, employers aren’t required to carry out right to work checks on self-employed individuals or workers supplied through an agency – that duty sits with the agency itself. But under the proposed amendment, end-user businesses will need to carry out their own checks, even if someone is working through a third party. That means no more relying on the agency’s assurance that checks have been done – each business will need to carry out a valid check themselves, using one of the Home Office-approved methods, before the worker starts. 

Given that it is common practice for many employers to bring in temporary workers at short notice to cover absence this change will create a new challenge. Even if an agency sends a fully checked worker, the business receiving them still needs to do a right to work check from scratch. And the risks are real – the civil penalty for illegal working is now up to £60,000 per worker so this is not something employers can afford to get wrong.

So, let’s get a view on this. Earlier I caught up with immigration expert Maria Gravelle who joined me by video-link from Edinburgh to discuss it. So how significant is this change?

Maria Gravelle: “It’s a very significant change. At the moment the liability for employing an illegal worker, whether it's civil or criminal liability, lies with the employer of that individual. So if let's say you use a subcontractor and they engage 100 people to come onto your site, because you don't have a direct employment relationship with those people your organisation is not going to be liable if one of them turns out to be an illegal worker. It’s not great from a business continuation perspective but you wouldn't be the one getting fined. What the Border Security, Asylum, and Immigration Bill plans to do is extend that liability to other organisations within the supply chain. So it won't just be the direct employer of an individual who would be liable for a civil penalty if they turn out to be an illegal worker, it would be companies who use workers under worker contracts, it would be companies who use subcontractors under subcontracting arrangements. They've also extended it to online matching services, so the likes of Uber or Deliveroo. Those organisations have already pledged to do right to work checks so it sort of ties in, politically, with a lot of the stories that were going on in that area. So yes, if you engage a worker via an online matching service, again, the liability if they turn out to be an illegal worker will extend, potentially, to your organisation even if you're not their employer.”

Joe Glavina: “On that last point, Maria, you say the liability‘ will extend potentially to your organisation. How can employers mitigate against that?”

Maria Gravelle: “Well, this is one of the areas where the bill doesn't really go into detail. This is an area where there are both statutory provisions in the Immigration Act and there are also Home Office guidance documents which supplement those and the reason that we've got a kind of piecemeal insight into what's going to happen is because the processes for changing those two different types of law are very different. It’s a much more formal process that has to be followed in order to change an Act of Parliament. Now it's an Act of Parliament where the civil penalty regime for employing an illegal worker currently sits and that's why it's a bill that's going through Parliament to change that. So what we've got right now is the bill that will change the legislation and that outlines the civil penalty regime, who will be responsible for a civil penalty, and why. What the bill doesn't do, and what the Act of Parliament does not do, is explain how organisations can prevent getting a civil penalty. It doesn't go into the procedure or the process or the day-to-day manifestation of how this will actually work in practice. That will happen in the guidance. Now, the process for changing guidance is much less formal than the process for changing an Act of Parliament and, generally, what we see is that guidance in this area comes out the day before, or the morning of, these changes coming into effect. We would hope that with a change as significant as this we would get a bit more information but until that guidance is brought out we don't know the modalities of what companies in a supply chain will have to do. So in the example of a worker being sent in lieu of somebody else because that other person was off sick, it's unclear right now if, before that person sets foot in the door, whether a full right to work check with all of the entities in the chain would have to be conducted, or whether it would suffice for, let's say, the agency who's sending the worker to provide some kind of evidence, a copy of that person's right to work check, to satisfy the other organisations involved that they do have the right to work. So how onerous this is actually going to be on organisations remains to be seen but right now, in the sickness scenario, that other individual could come in and start working without any qualms really, but there is going to be, have to be a bit more consideration to that sort of arrangement going forward.”

Joe Glavina: “If a business needs to bring in a temporary worker to cover an absence and a right to work check needs to be done before they can start, how quick a process is that? What does it involve?”

Maria Gravelle: “So a right to work check can be done relatively quickly but it depends where the person is compared to where the person who has to check them is. So, for example, a lot of organisations will have a HR hub in one location and let's say their HR hub is down in London and this worker is coming up to their Edinburgh office to fulfil a cleaning contract or something like that. It wouldn't be feasible in that scenario for the HR team to meet with this person before they start work, that would perhaps have to be a job given to somebody else. The individual would need to bring documents with them if, let's say, they have a British or Irish passport. If they have right to work by another means, and they use an online mechanism to prove that, then a meeting of some description would have to be set up so that HR, or a manager, can get that information from them so you can see this becoming quite cumbersome quite quickly particularly if somebody is covering a shift of a colleague at short notice, having to think about all of this and figure it all out in the space of an hour is going to be quite difficult. So having a process in place or having some sort of a clause in a contract with subcontractors, to explain what happens in that scenario is going to be advisable going forward so everybody knows what they're supposed to do when that happens.”

Joe Glavina: “Given this change is on the way, Maria, what can HR teams be doing to plan ahead for it?”

Maria Gravelle: “So right now, until we get the Home Office guidance with the processes it's hard to forward plan fully because we don't know exactly what businesses are going to have to do. Are they going to have to do right to work checks on subcontracted individuals themselves? Are they going to have to review their contracts with agencies, with other organisations, to build in some sort of amendment to get right to work documentation from them? That part is unclear so for the time being, planning to that extent is going to be quite challenging. Of course, it can be done, but you could take a lot of action right now to plan something and actually it might turn out to be not necessary. So what we're suggesting at the moment is that the easiest thing to do right now is just to identify areas of your business where this is potentially going to be a problem. So have a look at all of the business areas that you've got, all of the business units, identify where you are using contractors, where you are using subcontractors, have a look at what your current processes are. So for example, with people on a service contract, even though there's no obligation to do a right to work check at the moment the Home Office guidance does recommend that you do right to work check those individuals because the relationship is slightly more direct than it is in a subcontracting scenario. So have a look at that, are you doing that currently? If you're not doing that, is there a reason why? Is it practical difficulties? How could those potentially be overcome if that obligation changes? The more difficult area is going to be with the subcontractors because there you're potentially several steps removed from the individuals who are going to be working on, let's say, your site, or under the banner of your organisation. So again, identifying the extent to which this could be a problem would be the advisable course of action right now.”

The Immigration Team have written an article for clients which looks at those issues in some detail. That’s ‘UK right to work checks could expand to agency and gig economy workers’ and it’s available now from the Out-Law website. We’ve included a link to it in the transcript of this programme for you.

LINKS
- Link to Out-Law article: ‘UK right to work checks could expand to agency and gig economy workers’