The relevant statutory instrument implementing the new maximum civil penalty was made by Parliament on 23 January 2023 and comes into effect on 13 February 2024.
From the same date, a new Code of practice on preventing illegal working will also come into effect. This code of practice sets out:
- how an employer may establish a statutory excuse against liability for an illegal working civil penalty.
- an overview of the process under which the civil penalty regime is administered; and
- how liability is determined, and the penalty amount is calculated for a first breach and a repeat breach of the right to work scheme.
Any employer issued with a penalty notice on or after 13 February 2024 will be subject to the penalty calculations in the new code of practice unless the illegal working identified in the notice ceased on or before 12 February 2024. This includes a maximum £45,000 civil penalty being imposed for a first breach of the scheme and a maximum of £60,000 per illegal worker for repeat breaches.
This means that unless the employment began and ended before 13 February 2024, an employer of an illegal worker will be subject to the higher penalty. If the employer has a completely compliant right to work check history for the employee, this should provide a statutory excuse against the penalty unless there is also evidence the employer knew or should have known they were employing an illegal worker. However, it is important to be aware that seemingly minor deviations from a compliant right to work check will mean that a statutory excuse is not available. It is therefore very important to have compliant right to work checks on file for all employees.
It is advised that employers consider undertaking the following actions to minimise the risks of being liable for civil penalties and being subject to compliance action due to illegal working:
- carrying out periodic internal and/or external audits of right to work check documentation and processes;
- providing ongoing training to staff involved in completing right to work checks;
- taking specialist immigration and/or employment law advice where right to work queries arise; and
- taking swift advice where potential illegal working is identified.
Source: Lexology
This provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented and the judgments made in every aspect of the case. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, we cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.
