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2024 Home Office Code of Practice Update – Preventing Illegal Working

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Employers and recruiters take note – the new Home Office code of practice on preventing illegal working comes into effect in January 2024.

This code updates the version issued by the Home Office in March 2022 and should be applied to all Right to Work checks undertaken from 22 January 2024. This includes situations where follow-up checks are required to maintain a statutory excuse, even if the initial check was undertaken using a previous version of the code, which was current at the time.

This code is aligned to the UK Government’s announcement of increased penalties for any business, or organisation that fail to comply with their Right to Work compliance obligations:

  • Penalty level for first breach £45,000 (per worker)
  • Penalty level for repeat breach £60,000 (per worker with no limit on the number of fines)

How do we comply with the code?

The code (which should be read in conjunction with the related Home Office Employer’s Guide) details how businesses must address Right to Work compliance, and in the process of doing so acquire a ‘statutory excuse’.

The Home Office will determine if you have a statutory excuse against liability for a civil penalty. You will have a statutory excuse if you have correctly carried out the prescribed Right to Work checks before employment commences.

Where an employee has a time-limited Right to Work, and you have, therefore, established a time-limited statutory excuse, you are required to conduct a repeat Right to Work check to retain the statutory excuse.

It is your responsibility to demonstrate that you have complied with the requirements to establish and, where necessary, retain your statutory excuse.

What other important issues does the code detail? 

Discrimination: The guide makes it clear that it is unlawful to discriminate against individuals on grounds of protected characteristics, including race, when carrying out Right to Work checks. A separate Code of Practice for employers, gives further advice on how to operate checking processes that are non-discriminatory and in accordance with statutory equalities duties. Employers should apply checks to all employees, whether or not they may already believe the employee to be legally in the UK.

Using an Identity Service Provider (IDSP): Since 6 April 2022, employers have been able to use Identity Document Validation Technology (IDVT) via the services of an IDSP to support Right to Work compliance.

Transfer of undertakings: Employers who acquire staff as a result of a Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) transfers are provided with a grace period of 60 days from the date of the transfer of the business, to correctly carry out their first statutory Right to Work checks in respect of these acquired employees. There is no such grace period for any follow-up checks to retain the excuse, where applicable.

What action do you need to take now?

We urge you to study and review this updated guidance against your current processes and procedures that address your compliance with Right to Work legislation.

Need more support?

With this new code of practice, effective from January 2024, and other changes coming to Right to Work legislation, it’s now more important than ever to ensure your business is compliant.

With Rightcheck, you can join thousands of HR professionals who have adopted the platform to streamline and digitise Right to Work compliance. Rightcheck is the leading Government-approved IDSP provider who can provide you with a Right to Work compliance solution.

To stay up-to-date with the latest news and legislation, don’t forget to subscribe to our blog to keep updated with the latest news, including receiving any updates to Government legislation directly to your inbox.

Should you have queries regarding this information, please contact info@rightcheck.io we will be happy to assist.

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