Amid a Home Office crackdown on illegal working practices, it has published an independent survey on employer awareness of correct right to work checks. Alexander Finch, senior associate at Vanessa Ganguin Immigration Law examines the common – yet consequential mistakes that the survey reveals
The Home Office has published the results of a survey it commissioned into employer knowledge of right to work (RTW) checks and it is rather revealing. Of all businesses surveyed, 80% answered at least one compliance question incorrectly and are therefore at risk of non-compliance. Of these:
- 11% did not say all employers in the UK had a responsibility to carry out checks
- 51% said they would accept a driving licence or bank statement
- 64% said employers were required to recheck all employee documents every five years
- 12% did not check documents correctly
The survey confirms what most of us immigration lawyers already knew – that using a driving licence is the most common mistake employers make during checks.
Incorrect checks do not afford any protection from civil penalties, which in the last recorded quarter amounted to more than £20 million in issued fines. The new survey of 2,152 businesses across different private sector industries was published two days after a Home Office announcement that tackling illegal working will be a key priority and involve extending RTW rules for the first time ever to zero-hour workers and the gig economy. Currently, companies using such flexible arrangements are not required to check the status of on demand workers as they do with employees.
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The Home Office says major food delivery companies Deliveroo, Just Eat and Uber Eats already voluntarily carry out checks to ensure delivery riders are eligible to work and that this is going to soon be required by sectors such as construction, beauty salons and couriers. This major change is likely to require primary legislation, so won’t come into force for a while.
Unsurprisingly, the Home Office-commissioned survey of RTW awareness warned of “a potentially increased risk of non-compliance for employers hiring agency or zero-hours workers.”
The survey conducted by researchers at Verian also revealed that micro and small businesses answered key compliance questions incorrectly more than larger employers, where checks are more likely to be conducted by HR staff.
Asked who has a responsibility to conduct checks, 81% of employers using agency workers incorrectly said that recruitment agencies were responsible.
Most employers were correctly aware they were responsible for RTW checks, with 89% saying that all employers in the UK had a responsibility to carry them out. However, with more than one answer available, there were many misconceptions too: 62% thought recruitment agencies had this responsibility, 48% said the Home Office, 46% said employees themselves and 44% subcontractors.
Employers who conducted manual checks were asked which documents could be acceptable proof. While almost all employers (96%) knew that UK or Irish passports were, many wrongly stated that driving licences (62%) or bank statements and utility bills (47%) could be accepted.
Employers in manufacturing, construction and wholesale and retail trade were likeliest to accept incorrect documents (69%, 70% and 72% respectively).
The report also reveals uncertainty over whether documents had to be rechecked with 64% of employers incorrectly saying documents had to be rechecked every five years rather than at the expiry point of a worker’s permission.
Only 24% of employers using a digital identity service provider (IDSP) to carry out checks were aware that relevant documents must be kept for the length of employment plus an additional two years.
When employers were asked if they believed illegal working was common in their sector, the highest across all sectors was construction (41%), followed by accommodation and food services (39%).
The research revealed no evidence of discrimination resulting from performing RTW checks. To avoid discrimination issues, it is crucial employers apply checks consistently across all workers regardless of nationality or ethnicity, adhering to government codes of practice.
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There have been digital developments and changes to RTW guidance in recent years and since the pandemic, yet keeping on top of these and carrying out checks properly shouldn’t be too complicated. Nonetheless this survey confirms many employers are making mistakes which can lead to devastating consequences.
Hiring someone you have reasonable cause to believe is working illegally could land employers with a civil penalty of up to £60,000 per illegal worker, in serious cases, a criminal conviction carrying a prison sentence of up to five years and an unlimited fine, inability to sponsor other migrants – who may have to leave the country, closure of the business and disqualification as a director.
We are seeing a real ramping up of Home Office enforcement activity – a recent National Audit Office report found that more than 10 times as many cases were referred for compliance checks in 2024 compared with 2022.
It’s crucial to check guidance updates, compliance procedures and record-keeping. To protect themselves, employers must keep on top of manual RTW checks, using the Home Office’s online checking service, how to use IDSPs, when to recheck workers and how long to keep records.
It’s heartening the survey found 89% of employers visit the Home Office website for information – as they should to keep up with updates. And it is great to see that us professional advisers at least score higher (59%) than social media/radio/TV/newspapers (16%) and friends or family (14%) as trusted sources of RTW information. Hopefully this article will help us rank a bit higher.
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