The code of practice gives guidance to employers on avoiding discrimination while still preventing illegal working. The code replaces the previous 2008 code of practice on preventing illegal working.
The new code of practice repeats a large number of the good practice points from the 2008 guidance with which employers should be largely familiar, i.e
- Employers should have clear and fair written procedures for recruitment of all workers.
- Immigration checks should be carried out on all prospective workers, not just those from an ethnic minority or with a foreign accent.
However, importantly the code of practice introduces increased penalties for employing illegal workers. The fine has risen from £10,000 to £20,000 per illegal worker.
The code also brings in some other important provisions, effective from 16 May 2014 :-
- The "grace" period for employers to conduct checks on employees acquired after a TUPE transfer has been extended from 28 days to 60 days.
- The number of documents considered to be suitable proof of right to work under List A (proof of permanent right to work) have been reduced and List B (proof of temporary right to work) has been redrafted with updated definitions. This should simplify right to work checks.
- The requirement to annually check an employee's proof of right to work for those employed since 16 May 2014 on temporary visas has been relaxed and it will only be necessary to check them when the visa period is due to expire.
- From 16 May 2014, all documents making up proof of right to work must be valid ( and not expired) at the point when they are checked (unless belonging to a UK resident, someone with Right of Abode in UK and European Economic area, Swiss nationals with permanent residence and their families, who still remain exempt).
- There is a new requirement for employers who employ students. This also covers employers offering internships and work experience placements. Employers will now need to request student course details and term dates to verify a students study periods. This will assist employers in discharging their obligation of ensuring that the student is not in breach of their visa conditions whilst working for them.
Claire Taylor-Evans, solicitor with Boyes Turner's Employment team comments:
"The change with the most impact for employers is likely to be the removal of the requirement for annual checks for those with temporary permission to work in the UK. Whilst this is a welcome relaxation of the administrative burden on employers it does mean there will be more focus on making sure all the correct documents are in place at the outset of employment and proper diary systems are in place to ensure checks are made in good time of the expiry."
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.