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Avoiding falling foul of Right to Work legislation in TUPE situations

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UK Right to Work legislation stipulates the following in TUPE situations –

‘TUPE regulations provide for Right to Work checks carried out by the transferor (the seller) are deemed to have been carried out by the transferee (the buyer).  As such, the buyer will obtain the benefit of any statutory excuse acquired by the seller.

However, if the seller did not conduct the checks correctly, the buyer would be liable. For these reasons, employers who acquire staff through TUPE regulations should undertake a right to work check on all new TUPE members of staff.’ 

We recognise that there may be practical problems in undertaking these checks before the employment commences for workers acquired as a result of a TUPE transfer and for this reason a period of grace has been provided during which you should undertake the check. This period runs for 60 days from the date of the transfer of the business.’

This gives rise to several challenges and potential risks in TUPE situations; acquiring organisations should take steps to mitigate against these risks:

RISK– Relying on the inherited Right to Work checks on file received from the seller. Are they complete? Are they correct? Have time limited expiring visa’s been recorded, so that re-checks can be completed? If checks do not exist or have not been undertaken correctly (i.e. cannot establish a ‘statutory excuse’) then you will be liable for prosecution.

RISK – Have you inherited checks for staff that have left the business? Right to Work checks needs to be retained for 2 years post-employment and then destroyed within a reasonable time period.

RISK – Right to Work checks contain sensitive, personal employee data and as such represent a GDPR concern. Has the data been safely, stored and securely transferred to you?

RISK- The Home Office gives the ‘buyer’ 60 days to complete new checks on staff. Do you have the resources to train and educate staff to conduct checks in this timescale?

RISK – Issues of discrimination? It is also advisable to consider conducting checks on all staff, as opposed to selected foreign nationals, to avoid any potential discrimination issues.

You have the 60-day grace period, granted by the Home Office to ensure all new employees have the Right to Work in the UK. When you and your business are tasked with many other administrative tasks associated with the transfer, 60 days can be challenging!

You need a quick and easy way to automate Right to Work checks on your new employees, so that you can focus on the business transfer at this crucial moment for your company. You can now perform Right to Work checks within seconds on a mobile device with Rightcheck. The Rightcheck app will guide you through an intuitive process, in line with the latest Home Office guidance, to ensure right-first-time compliance on all checks conducted on your new employees.

With the new automated ‘share code’ feature in our app for EU nationals, as well as built-in document combinations for all nationalities, you and your HR team can carryout checks on all staff with ease – regardless of nationality.

To find out more about how Rightcheck can assist your organisation in TUPE situations, send us a message at sales@rightcheck.io or give us a call at 02476 158 830.

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