Major increase in illegal working penalties from January 2024

The potential penalties for failing to do proper “right to work” checks are set to triple from January 2024, up to a maximum of £60,000 per illegal worker.

Late last year, the government announced that as part of their measures to discourage and crack down on illegal immigration, there would be stronger action against businesses that either knowingly breach right to work check rules or don’t take appropriate measures to make sure they’re compliant. This included the first increase in “civil penalties” (fines) since 2014, and it’s a major increase on what was already a very costly risk – jumping from £15,000 for a first offence and £20,000 for repeat offenders to a huge £45,000 and £60,000 respectively.

Who’s at risk of these increased fines?

These penalties apply to employers who unknowingly employ someone without the legal right to work in the UK because they didn’t carry out appropriate checks at the recruitment stage and/or at relevant points during their employment – e.g., when an employee’s permission to remain in the UK is about to expire, or a sponsored employee has a change of role.

Knowingly employing an illegal worker (or if they have reason to believe you are) is treated even more seriously – i.e. as a criminal offence – which can result in imprisonment for up to five years or an unlimited fine. Companies that are given a fine for employing staff illegally will also be named in quarterly reports published on the government’s website.

How can you make sure you’re complying with the law?

Thankfully, there’s just a change to the fines, not the steps to prove an employee’s right to work in the UK. So, if you already have good measures in place to check all documentation and keep accurate records, you don’t need to update your practices – just make sure that you:

• Conduct right to work checks on all prospective employees (including UK nationals) before they start.
• Carry out follow-up checks on any employees whose right to work is time-limited – it’s a good idea to put any expiry dates in your diary so you don’t miss them.
• Maintain training for those carrying out the checks so they’re up to date on the correct procedures and aware of their responsibilities.
• Keep accurate records of the checks carried out, including the dates and who conducted them, and periodically audit your records to make sure nothing has been missed or expired.
• Take action quickly when you become aware of a potential issue.

For more information on right to work checks, HR & Employment Law clients can check out our factsheet in Atlas.

Reducing the risk of fines

As long as you can demonstrate you’ve carried out the necessary checks in line with Home Office guidelines, you’ll have a defence against being held liable for unwittingly employing an illegal worker. As well as this, the fines can be reduced if you:

• Report the suspected illegal worker to the Home Office, via the UK Visas & Immigration helpline, rather than waiting to be inspected – However, reporting someone this way is a very serious step with potentially huge negative implications for the individual. If you end up being wrong or do it too prematurely, it could lead to damaging claims of things like race discrimination and constructive dismissal – so make sure you only do it if you’re absolutely sure you have strong grounds or evidence.
• Actively cooperate with the Home Office during any inspection – e.g., providing full access to your premises and records, and being prompt in providing full, honest answers and evidence.

Each of these steps can lead to a £5,000 reduction per worker.

Protect your business with quick, market-leading employee screening checks

This is an area that’s always been high-risk for companies who get it wrong, but the laser focus on immigration in politics right now has made that potential cost even higher.

It’s not all bad news, though. Thorough processes and an honest and transparent approach with both your employees and the Home Office will help protect your business.

And we can help make that easier for you. We’re part of something bigger – a group of companies designed to make compliance and growth simple for small businesses – and our sister company uCheck provides a market-leading employee screening portal and quick, accurate right to work checks.

The best news? As a Citation client, you can get access to uCheck’s portal for free and stay on top of your employee screening, to help reduce the risks of slipping up on right to work checks.

We’ve also updated our Right to Work factsheet for HR & Employment Law clients in Atlas – take a read of it here.