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Getting right to work (RTW) checks wrong can be a painful, expensive and embarrassing mistake for any business. From 13 February 2024, however, the ramifications for not following the appropriate processes when checking an employee’s/worker’s RTW will be even more severe.
New rules coming into force mean that the fines for engaging illegal workers are increasing three-fold! From 13 February 2024, those found to be engaging illegal workers could face a fine of £45,000 per illegal worker if it is the first time they are found to have breached the RTW scheme (up from £15,000). For those found to have repeatedly breached the RTW scheme, fines are set to increase to a whopping £60,000 per illegal worker (up from £20,000). For SMEs and cash-strapped organisations, these are business-ending sums of money. One only needs to compare the quarterly illegal working fine notices with Companies House liquidation records to see that most companies that receive these fines do not recover financially. It is therefore imperative that companies do the RTW checks correctly.
RTW checks have to be conducted BEFORE an employee/a worker commences work. There are three possible avenues for conducting the necessary checks and which one you use depends on the nationality of the individual:
- Manual RTW checks can be conducted for a citizen of any country;
- A RTW check using Identity Validation Technology via the services of an Identity Service Provider can be used for British and Irish citizens only; and
- A Home Office online RTW check can be conducted for a citizen of any country with the exception of British and Irish citizens.
Which documents can be relied upon and what you need to do with them once you’ve got them differs depending on which of the above processes you adopt. It is imperative that you get it right and undertake these processes in accordance with the rules of the scheme that are in place at the time the checks are undertaken. These rules change fairly regularly and in fact the current rules have only been in place since 6 April 2022. It is therefore important that companies:
- Stay up to date with the RTW rules;
- Ensure that those members of staff responsible for the checks are getting regular and updated training;
- Spot-checks are undertaken on a 6 or 12 monthly basis to ensure that these individuals are doing the checks correctly;
- Ensure guidance on RTW work checks is readily available to all of your staff; and
- Undertake an audit of the RTW check documentation/information for all of its staff to identify and minimise the risk of engaging illegal workers.
If you’re unsure that your processes are up to date, you need training or policies, or, even if you have discovered that some or all of your RTW checks have not been completed correctly, do get in touch with the team at Michelmores. We can get you back on track.
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Employment law insights webinar: navigating change and compliance
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