Agencies have a requirement to check that a worker has the right to work in the UK under both the Conduct of Employment Agencies and Employment Businesses Regulations 2003 and UK Border Agency [UKBA] Preventing Illegal Workers.
In the past, agencies have checked a worker’s right by simply obtaining a copy of the passport and, where necessary, the visa. The introduction of the Preventing Illegal Working rules by the UKBA changed all this.
Whilst there is no legal requirement to carry out the UKBA prescribed checks, where these checks have not been carried out and an illegal worker is found, businesses will be fined up to £10,000 per worker. Where UKBA believes the business was knowingly employing an illegal worker a criminal prosecution could be brought carrying with it an unlimited fine and a potential jail term.
While it is essential that agencies ensure their processes are brought up-to-date to comply with the requirements, however large numbers of employers and recruiters are still failing to adequately assess an individual’s right to work in the UK, according to professional employment provider, Giant group.
Data obtained under the Freedom of Information Act revealed a total of 1270 Notification of Liability (NOL) notices for a Civil Penalty were issued to employers of illegal workers in the UK in the last year. The value of these penalties equate to 10.8 million.
While these figures are down slightly on those reported last year, it is still a concern that so many employers and recruiters are failing to carry out sufficient checks on employees despite the on-going clampdown on illegal working. And with fines for those who fail to ensure eligibility to work set to double, employers and recruiters are at risk of severe financial implications.
Compliance and efficient checking of an individual’s employability rights have been hot topics over recent months, with more being done to raise awareness of the legal requirements for employers and recruiters. However, the number of NOL’s issued still remains high. As fines are set to rise it’s vital the correct processes are implemented to reduce the associated risk on businesses.
Action to be taken
If you engage temporary workers via recruitment agencies, make sure that you:
- work with the recruitment agencies to assess whether or not each worker they supply is protected by the AWR;
- remember that from day one of an assignment you must provide agency workers with access to certain facilities as well as information on permanent job vacancies;
- provide recruitment agencies with all requested information about comparable direct hires in good time and ensure you cover pay (which is much broader than simply basic salary), duration of working time, night work, rest periods and breaks, and annual leave;
- are aware that recruitment agencies’ fees are likely to increase if the AWR requires them to pay the agency workers they supply more when they have completed the twelve week qualifying period;
- tackle the subject of the AWR and any likely fee increases before assignments commence; and
- enter into contracts with recruitment agencies which protect you from liability under the AWR and apportion risk between you and the recruitment agencies fairly and appropriately.
Recruitment agencies that supply AWR agency workers should:
- ensure that they have systems in place to request comparator information from their clients and that this is chased up on a regular basis if it is not provided;
- train staff on the AWR and the business’s processes and procedures for ensuring compliance with the AWR; and
- make sure that their contracts with clients include a clause requiring the client to provide comparator information, as well as other AWR related clauses that protect the recruitment agency from liability and apportion risk fairly and appropriately.
Software tracker ensures full UKBA sponsored worker compliance
Responding to the needs of companies sponsoring non-EU workers into the UK, uComply has launched new integrated immigration compliance software which is simple to use yet meets the exacting standards of the UK Border Agency (UKBA) for exemplary record-keeping.
“As former MD of a major recruitment group, I know how onerous the UKBA requirements to check and constantly monitor sponsored employees can be for busy HR professionals. So I set out with a team of experts to develop a software system that would be easy for staff to use but would eliminate the need for costly specialist legal advice, while proving a complete audit trail in case of a UKBA inspection.’ Says Managing Director Kim-Marie Freeston.
“We have achieved this with uAuthenticate, which quickly validates Right to Work documents from the UK and overseas presented by potential employees (identifying fakes in seconds) and uSponsor, which allows organisations to control and monitor the status of sponsored workers at all times, reduces the need to employ immigration legal services, is always kept up-to-date with changes in immigration law and helps eliminate paper or disparate systems.”