In the News
Right to work checks
The Windrush scandal has highlighted some of the complexities around establishing an individual's right to work in the UK. In the wake of the uncertainty, the Home Office has issued new guidance on right to work checks for undocumented Commonwealth citizens. Employers may wish to take the opportunity to review their processes in this area to ensure compliance.
Employers have a duty to prevent illegal working and can face fines of up to £20,000 per worker for employing an illegal worker. To avoid liability, employers must conduct prescribed checks on all employees before they start work. Employers must see an original document or combination of documents from the Home Office's right to work checklist for each employee. The original documents must be viewed in the presence of the individual, copied and retained on file throughout employment and for two years after it ends. The employer must also record the date of the check and that the original document was seen on this date.
Employers can only accept documents which appear on List A or List B of the Home Office's right to work checklist. List A documents show a permanent right to work in the UK (eg a British passport) whereas List B documents show a temporary right (eg a Tier 2 visa or spousal visa). For List B documents, in addition to checks at recruitment, the employer must diarise the expiry date of the visa and repeat the check before expiry to ensure the employee's right to work has been extended.
Where the Home Office advises that it is lawful to employ someone without the prescribed right to work documents – as may be the case for some members of the Windrush generation – the employer should always obtain written confirmation from the Home Office to ensure it has a justification should the Home Office advice turn out to be incorrect.
Skilled visas at the limit?
As reported in the press, the UK has hit the cap on skilled work visas for a fifth month in a row. This has reportedly contributed to a staffing crisis in the NHS, with doctors and healthcare staff unable to get the necessary work visas. It has also created problems for employers outside the healthcare industry.
The UK operates a quota on skilled visas for non-EEA nationals (known as Tier 2 visas). The quota is set at 20,700 visas per year and operates on a monthly basis. Employers looking to sponsor a skilled worker must request a sponsorship certificate from the monthly quota. Requests for sponsorship certificates are given a points allocation, with greater points given for a higher salary. In months where the quota is oversubscribed, requests below a certain points/salary threshold are rejected.
The minimum salary for a Tier 2 visa is normally £30,000 but in April 2018, for example, £50,000 was required to come within the quota. The pressure on allocations is having a real impact on employers recruiting at the more junior or at entry level, where salaries tend to be lower. Employers who have their sponsorship certificate requests rejected can reapply the following month and could also consider increasing the salary on offer to increase the chances of coming within the monthly quota. We are working with a number of employers to reapply following rejections, as well as considering contingency options. However, the issue is perhaps likely to intensify as Brexit approaches and the demand for non-EEA labour increases.
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