How Has the 2024 Right to Work Checks Guidance Impacted the Care Sector?

Migrant workers are a crucial part of the care sector within England and Wales and with the increasing demand on social care due to the UK’s ageing population, migrant workers are likely to be an ever-increasing part of the sector.

As such it is important to remain up to date with the recent changes to the right to work checks guidance made by the Government, which impacts migrants working within the care sector, to ensure that employers are compliant.

Right to Work checks

Employers have a duty to prevent illegal working and perform checks to ensure that employees have the right to live and work within the UK. This duty applies to those who remain in the UK after Brexit under the EU Settlement scheme.

To comply with their obligation to prevent illegal working, an employer must:

• Carry out “right to work” checks
• Conduct follow up checks on employees who have limited permission to live and work in the UK
• Keep records of all checks carried out
• Not employ anyone who they suspect has reasonable cause to believe is an illegal worker

What is the three-step right to work check?

• Obtain the employee’s original documents
• Check that the employee has the right to work by preforming either:
  • a manual document check;
  • Digital identity document validation technology (IDVT) (available for British and Irish Citizens only); or
  • a Home Office online right to work check (non-British and non-Irish citizens)
• Copy documents which you have manually checked and record the date of the check and the date of subsequent follow-up checks.

It is imperative that the business does these checks and retains a copy of them to obtain a statutory defence.

The checks also needs to be dated and we would advise that the person conducting the check writes and signs a declaration on the documentation showing that they have conducted the relevant checks.  

If an employer becomes aware that an employee may not have the right to work in the UK, then immediate termination may be appropriate, as the employment contract is void and unenforceable by either party. There is no obligation on the employer to serve notice or pay notice pay.

However, if there is any doubt or ambiguity you should take specialist advice before dismissing the matter as it is a complex area and it can give rise to employment tribunal claims for unfair dismissal and discrimination.

For example, if a migrant employee has a pending application with the Home Office, then they may have a legitimate right to work and dismissal in this situation would be high risk.

Updates to Right to Work Checks

In February of 2024, the Home Office published updated guidance on right to work checks, which applies to work undertaken after 13th February. The updated guidance includes:

Increase to the maximum civil penalty

The increase to the maximum civil penalty for non-compliance has been raised to £45,000 per illegal worker for a first breach and £60,000 per illegal worker for repeat breaches.

Removal of the 28-day concession

In addition the guidance also removes the 28-day concession to allow late applications to the EU Settlement Scheme for employees who are EEA nationals or non-EEA national family members, who were employed on or before 30 June 2021 and who it transpires (during an internal audit or otherwise) do not hold a lawful immigration status permitting them to work in the UK. The guidance now states that, "if an employer identifies an existing employee who no longer has a right to work, they are required to take the appropriate action. This may include contacting the Home Office for support or taking steps to terminate employment".

Additional evidence for supplementary employment

Employers should also secure additional evidence where they are employing someone for "supplementary employment" (they are sponsored by another employer for their "main role") to ensure that the worker is not undertaking more than the permitted 20 hours a week supplementary employment in total. See further information below.

Supplementary Employment

In addition to the job specified on the certificate of sponsorship, a care worker is able to carry out supplementary employment (different from any overtime they may work) provided that they meet the following conditions:

• Their job is either a job on the Shortage Occupation List or a job in the same profession and of the same professional level as the job for which the certificate of sponsorship was assigned; and
• is for no more than 20 hours a week; and
• the individual continues to work for their sponsor.

When providing supplementary work to a sponsored worker, you must now also carry out the necessary Right to Work checks and confirm that they are eligible to take on supplementary employment.

Employers should take steps to ensure that the supplementary employment meets the above requirements and ask the worker to provide evidence from their sponsor confirming:

• They’re still working for their sponsor;
• The job description and occupation code of their sponsored employment (if their supplementary employment is not in a shortage occupation);
• Proof of their normal working hours.

For example, you may request a letter from their sponsor, a payslip and a copy of their contract of employment. This is a new change that is putting the onus on the employer. If you do not follow this guidance then you won’t qualify for a statutory defence.

Importantly, to ensure that the worker is not working more than 20 hours per a week you should also ask the worker if they are taking on any other supplementary employment with another employer.

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