Right to work checks confusion over extent of UK employers’ responsibilities

In September, the Home Office issued guidance on conducting right to work checks but it seems a number of employers have misunderstood the extent of their responsibilities when it comes to checks for agency workers and contractors. Some have taken it to mean they must check the right to work of every external worker on site, whether that be cleaners, builders, or self-employed contractors. As we’ll hear shortly, that’s not the case. 

Previously, the guidance simply said employers ‘may wish to check’ right to work documents for any contractors/ agency workers. The updated guidance says ‘you are strongly encouraged to check that your contractors and labour providers carry out right to work checks in accordance with this guidance on people they employ, engage or supply (or carry out these checks yourself). This includes anyone in your supply chain using a substitute to perform work on their behalf.’

That shift in language has caused some confusion. The switch change in wording from ‘may wish’ to ‘strongly encouraged’ is deliberate change in emphasis by the Home Office but it hasn’t created a new legal duty to check every external worker’s right to work. That said, it is obviously important that employers make sure the correct checks are done by those meant to do them and so avoid potential reputational risks, operational disruption, and potential issues with insurance or health and safety if workers haven’t been properly vetted.

So let’s get a view on this. Earlier I caught up with immigration expert Alex Wright who joined me by video-link from Manchester:

Alex Wright: “Yes, I think there's been a bit of confusion over the difference between workers and people that you employ. The Home Office guidance is reasonably clear that you do need to make sure that everyone who's working for you, you do a right to work check on, and that's absolutely correct. Anybody that you're directly employing, you should absolutely do your right to work check on, keeping all the usual records and making sure you know exactly know exactly what their status is. I think some of the confusion has arisen around people who might be working with you, but not necessarily for you. So that's people who are contractors, people who are agency workers. Ultimately, the responsibility for right to work checks stops with their direct employers. So if you're employing through an agency, it's the responsibility of the agency, or contractor, to make sure they are taking out appropriate right to work checks on the people that they provide to you. Again, I think one of the things to remember is, whilst that's not necessarily your responsibility to do those individual checks, which I think has been the concern, it's certainly your responsibility to make sure the companies that you're working with have appropriate checks in place. So when you are getting in touch with an agency, or a contractor, to do a piece of work and you're going to have dozens of people on your site who maybe don't work for you directly, it's important to make sure that you're satisfied they have good right to work procedures in place. So when you're instructing them, you definitely want to be asking questions about the kind of processes they have, the kind of checks they have in place, and the kind of data they can provide to you because if the Home Office show up at your site tomorrow and they start speaking to these workers and wanting to check their status, you want to be satisfied that you did everything you could in your relationship with the contractor to make sure that the people on your site have right to work.”

Joe Glavina: “If the employer doesn’t carry out checks in this situation then, as I understand it, they don’t face the risk of a civil penalty, but there is the risk of reputational damage.”

Alex Wright: “I think it's important. Obviously, if one of your own workers is found to not have the right to work, then yes, that employer can be found in breach and there can potentially be civil penalties and all sorts of issues which we've talked about many times before. If it's not someone who works for you directly the civil penalty would be the responsibility of their direct employer. So that civil penalty would go to the agency or the contractor, etcetera. But again, I think reputational damage is an issue. There certainly was a circumstance a couple years ago that was reported quite widely in the press where a large company, I think it was their cleaning agency, did not have the appropriate right to work checks and the name of that company was taken through the press a fair bit even though they had done everything right from their side and I think it's certainly easier from a reputational damage management perspective if you can at least say, no, these weren't our direct employees but when we contracted with that agency we asked for assurances on X, Y and Z in relation to right to work and we believe that we did all the due diligence we could as someone contracting with a third party to make sure the people being provided to us were working in the UK lawfully.”

Joe Glavina: “So I guess the key point for employers to take on board is check your agreements carefully.”

Alex Wright: “I think that's it. You know, when you're starting out and you're entering a contractual agreement, I think it's perfectly legitimate to ask them, okay, can we have a look at your right to work check policies? Can we have a conversation about the type of documents and records you keep and make sure that you keep them for the appropriate periods of time and if something were to happen, would you be able to provide that evidence in order to support someone's right to work status in the UK?”

Joe Glavina: “Finally Alex, to be clear, the position is different for sponsor license holders, isn’t it?”

Alex Wright: “Yes. If you are sponsoring a worker directly you maintain the ultimate responsibility for that individual and you can be liable if they are found to not hold the appropriate permissions in the UK.”

That Home Office guidance is called ‘Employer’s guide to right to work checks’ and is available from the government’s website. We’ve included a link to it in the transcript of this programme for you.

LINKS
- Link to Home Office guidance