As part of The Sherrards Training Academy, we have asked our Legal Assistants and Trainee Solicitors to write articles to support their learning, and also to ensure they start to build on their own personal brand. This article has been fact-checked and proofread by Head of the Employment department, Mark Fellows.

On Monday the government issued a consultation paper which proposes re-introducing fees in Employment Tribunals and the Employment Appeals Tribunal, with the main aim ‘to contribute to the continuous improvement of His Majesty’s Courts and Tribunals Service and reduce the cost to the taxpayer to fund these services’. The new proposal comes nearly 7 years after the Supreme Court ruled the previous charging regime as unlawful when trade union Unison successfully argued that it prevented thousands of employees from securing justice.

The proposed fee is £55 to bring a claim in the Employment Tribunal, which is considerably modest in comparison to the previous fee regime This is a one-off fee which is £55 irrespective of the type of claim (but some limited claims will be exempted) or whether the claim is brought by a single claimant or multiple claimants. Unlike the 2013-2017 Tribunal fee regime, no hearing fee will be applied under the government’s most recent proposals.

To start an appeal in the Employment Appeals Tribunal, the same fee of £55 would also apply.

A system for remission from fees would be available for those who genuinely cannot afford to pay the fee (as defined by the government).

It is thought that the proposal may act as an incentive for parties to apply their mind to settlement and engage in negotiations early in the process through ACAS, without the need to proceed to issuing actual claims in the Tribunals, thereby helping to alleviate the huge pressures currently faced by the Tribunal service. It is questionable whether such a modest fee will actually have this impact, but at the same time, it was recognised that if the fee was too high, it might be open to further challenge from the Unions.

The consultation runs for 8 weeks and closes on 25 March 2024 – please stay tuned for further updates from the Employment Team.

Legal Entitlement and Calculation

All full-year workers, with the exception of the genuinely self-employed, are entitled to 5.6 weeks of paid statutory holiday per year. Four weeks of this entitlement must be paid at the worker’s ‘normal’ rate of pay, including regular payments like overtime, bonuses, and commissions, as specified by Regulation 13 of the Working Time Regulations. The remaining 1.6 weeks can be paid at the ‘basic’ rate of pay, that is, the worker’s basic remuneration (as specified by Regulation 13A).

Holiday pay is designed to ensure that workers do not suffer financially when taking time off. For those with regular hours and fixed pay, the holiday pay should mirror what they would have earned if they were at work. From 1^st January 2024, the regulations now specify that certain payments, such as commission payments and those related to professional or personal status, must be included in the calculation of the 4 weeks of normal holiday pay.

Irregular Hours and Part-Year Workers

For leave years starting on or after 1^st April 2024, part-year and irregular hours workers must have their statutory holiday entitlement calculated based on actual hours worked, using the 12.07% accrual method. Alternatively, employers can opt for rolled-up holiday pay, a method applicable exclusively to irregular hour and part-year workers.

Rolled-up Holiday Pay

Rolled-up holiday pay allows employers to include an additional amount with every payslip to cover a worker’s holiday pay, instead of paying it when the worker takes annual leave. The calculation involves 12.07% of the worker’s total pay, representing the proportion of statutory annual leave in relation to the working weeks of each year. If employers choose this method, the entire amount of leave for irregular hours and part-year workers is paid at the ‘normal’ rate of pay.

Considerations for Employers

Employers intending to implement rolled-up holiday pay should review workers’ contracts to ensure compliance and avoid unintentional variations. For those opting not to use rolled-up holiday pay, the existing 52-week reference period method can be employed to calculate holiday pay, considering the worker’s previous 52 paid weeks.

Payment in Lieu

If irregular hour or part-year workers do not utilise their accrued holiday entitlement upon leaving employment, they are entitled to a ‘payment in lieu.’ Employers should calculate this by determining the remaining holiday entitlement and computing the holiday pay for the period. Deductions should be made for any holiday taken during the employment period.

Conclusion

As the new Holiday Pay Calculation rules come into effect, employers must stay informed and adapt their practices accordingly. Compliance with these regulations not only safeguards against legal issues but also fosters a fair and transparent work environment. By understanding the nuances of holiday pay entitlement and calculation, employers can ensure that their workforce is compensated appropriately for their time away from work.

If you have any questions or wish to discuss holiday pay for your business, please contact the Employment Department.

 

Moving job should be a straightforward matter, but more often than not employees either don’t have a copy of their most recent employment contract or, if they do have copy, don’t look at it for myriad reasons.

When an employee leaves, a good employer will typically arrange an exit interview with a leaver. This is an opportunity for the employer to run through a checklist of items that a leaver needs to deal with before they depart e.g. returning company property, handover of work. Employers should also use that meeting as an opportunity to remind a departing employee of their ongoing obligation of confidentiality and any restrictive covenants they are subject to. Collectively these obligations are commonly referred to as post-termination obligations.

However, so often when we are instructed, we discover that this has not happened, meaning that employee may be about to blithely embark on a new role with a direct competitor, may be setting up themselves in competition, may be contacting clients and contacts that are protected or contemplating poaching former colleagues. However, even if an exit interview does take place, an employee may have their own plans regardless.

Post-termination restrictions to watch out for

A well drafted employment contract will typically contain the following suite of post-termination restrictions:

• Non-compete – these clauses are inserted to prevent the employee from working for a direct competitor of their employer. A well drafted clause will normally home in what is meant by a direct competitor. These clauses may even go further and say that an employee cannot set up on their own and work in competition. (Check out the government website for more details) 
• Non-solicitation – a clause of this type will be included in the employment contract where the employer wishes to protect against its clients and contacts from being enticed away to work with the employee somewhere else.
• Non-poaching – this clause is designed to deter the employee from encouraging their former colleagues to leave their employment.
• Non-dealing – this restriction is sometimes inserted to widen the effect of the above covenants, so that a departing employee is prevented from soliciting or poaching, but also that they cannot even deal with / have contact with the people defined in those clauses.
• Confidentiality – this is an ongoing restriction that carries on in perpetuity. If well drafted, the clause will contain a concise list of information that is considered to be confidential and should not be utilised in any way by the employee.

Action points for employers and employees

If you’re an employer, ensure you have an exit interview/meeting with a departing employee. Make it clear to them what restrictions are going to apply to them after they leave and confirm it in writing to the employee.

Review your existing employment contracts and check that they contain appropriate and properly drafted post-termination obligations.

If you’re an employee, familiarise yourself with the terms of your contract and understand what you can and cannot do after leaving employment. If you are unsure, you could either take pre-emptive legal advice or seek clarification from your employer. Ensure that any clarification is in writing, so you can rely on it later if needs be.

If you’re an employer and you’ve discovered that an employee has left and is now acting in breach of their contract or you’re an employee that’s now being pursued by your former employer, please contact Aaron Heslop for a no obligation discussion.

Furthermore, if you’re looking to review your existing employment contracts, we would recommend a discussion with our Employment Team.

Pregnant employees and those returning from family leave to be given priority status in redundancy situations from April 2024

What does this mean?

From 6 April 2024, employees who are pregnant or returning from maternity, adoption or shared parental leave will all have the right to be offered a suitable alternative vacancy, if one is available, before being made redundant. This gives these employees priority access to redeployment opportunities over other redundant employees.

When does this priority status apply to pregnant women?           

Protection under the new legislation begins when the employer has been notified of pregnancy and 18 months from the child’s date of birth if notified to employer before the end of maternity leave (or 18 months from the Expected Week of Childbirth if not notified).

For women who suffer a miscarriage, the protection ends two weeks after the end of the pregnancy, for pregnancies ending before 24 weeks (as pregnancies ending after 24 weeks are classed as stillbirths and the employee would be entitled to statutory maternity leave).  

What about employees who adopt?

The protection begins at the beginning of adoption leave and ends 18 months from date of placement or date of entry into Great Britain (if overseas adoption).

Is it the same for shared parental leave (SPL)?

A parent needs to take only a minimum of 6 weeks’ consecutive shared parental leave before becoming eligible for 18 months of protection.

How does this affect your business?

You’ll need to bear the above in mind for any restructures taking place after April 2024. There will now be more employees who are potentially going to be given priority status, which may mean you’ll need to carry out a selection process amongst priority status employees at risk of redundancy where there aren’t enough vacancies. Careful consideration will need to be applied here to prevent claims of discrimination.

You may also see a take up of SPL because of the additional protections the employee will benefit from.

It’s important to comply with the law as an employee that isn’t offered a suitable alternative vacancy when they have priority status would have a claim for an automatic unfair dismissal, which would mean a compensatory award that is not capped. There’s also no requirement to have two years’ service to qualify for this type of claim. The employee may also have a claim for discrimination. Given the significant penalties, employers will need to exercise extreme caution and it’s strongly recommended to take legal advice before making redundancies.

 

What are the key take away points from the new Carer’s Leave Regulations?

 An employee will be entitled to take one week of unpaid carer’s leave in any 12 month period, where they have a dependant with a long-term care need and want to be absent from work to provide or arrange care for the dependant.

• Importantly, the right will be a Day one employment right. 
• Employees will have the option to take the carer’s leave on consecutive days, non-consecutive days, half days or full days.
• Employees must give written notice of their intention to take carer’s leave, confirming their entitlement to take it. The notice requirement will be at least twice as many days as the period of leave requested.
• Employers will have a right to postpone a request if they reasonably consider that the operation of the business would be unduly disrupted. The employer must give notice of the postponement before the leave was due to begin and must explain why the postponement is necessary. The employer must then permit the employee to take carer’s leave (of the same duration) on a date determined by the employer after consulting with the employee, which must be within one month of the start date of the leave originally requested by the employee.
• Employees will be protected from detriment and dismissal because they choose to take, or seek to take, carer’s leave (or the employer believes they are likely to do so).

To find out more, contact the Employment team or Head of the Department, Mark Fellows.

 

The difficulty for an employer can often be in deciding how to respond and whether to accept the employee’s resignation. Or in some cases, the resignation might be welcome news for the employer, but the employee seeks to retract the resignation, arguing they did so in the heat of the moment.

The general rule is that a resignation from an employee cannot be unilaterally withdrawn without the consent of the employer. If an employee submits a letter of resignation, and a few weeks’ later they realise they have made a mistake, the resignation cannot be retracted unless the employer agrees to it. However, there is an exception to the rule, and that is ‘heat of the moment’ resignations, where it is generally considered that these are not binding on an employee because they may not reflect the true intention of the employee.

The recent case of Omar v Epping Forest District Citizens Advice has provided the Employment Appeal Tribunal (EAT) with an opportunity to clarify the principles that employers should consider if they find themselves dealing with this type of resignation.

So what happened in Omar?

Mr Omar worked for the Epping Forest District Citizens Advice Centre (“Advice Centre”).

• On 3 February 2020, the CEO of the Advice Centre wrote to Mr Omar about his timekeeping. Mr Omar was unhappy with the letter and verbally resigned to his line manager, Ms Skinner. Ms Skinner told him to calm down and indicated that she would not accept his resignation.
• On 5 February 2020, Mr Omar became angry again about another matter, and resigned again, this time giving his one month’s notice. Ms Skinner responded by advising Mr Omar to calm down and again said she would not accept this resignation.
• On 19 February 2020, Mr Omar became angry for a third time, when Ms Skinner queried some holiday dates which Mr Omar believed he had booked. He swore and shouted at Ms Skinner and used words of resignation. In particular, he said he was ‘done with the organisation’ and that Ms Skinner should ‘tell who you need to but I’m off because I’ve had enough’.

Later that day (19^th February), the CEO of the Advice Centre had a meeting with Mr Omar and Ms Skinner to discuss what had happened earlier that day. Mr Omar explained his reasons for ‘blowing up’ – he said he was aggrieved about the letter regarding his timekeeping and added ‘I have been working under considerable pressure for some time as I was also helping my father care for my mother who has dementia.’  Mr Omar alleged that the meeting ended with the CEO asking if he and Ms Skinner could continue working together and that the CEO had offered him an alternative role and given him a chance to think about his position.

However, the Advice Centre argued that the purpose of this meeting was to ensure Mr Omar did not leave his employment on bad terms and that at the end of the meeting, the CEO had asked Mr Omar and Ms Skinner to go away and think about how they could continue working together over Mr Omar’s 1 month notice period. It denied having offered Mr Omar an alternative role and said that Mr Omar did not attempt to retract his resignation.

On 21 February 2020 (his next working day), Mr Omar met with the CEO again. She told him that Ms Skinner had confirmed that she could no longer work with him and that his resignation would stand. The Advice Centre’s case was that Mr Omar said in response that he could not work with Ms Skinner either and that therefore his resignation still stood. It was accepted by Mr Omar that at the end of this meeting, he agreed to the CEO’s requests to put his resignation in writing.

However, Mr Omar did not do that.

Instead, on 23 February 2020 he sent an email to the CEO, stating ‘my understanding is that as a result of my behaviour [Ms Skinner] now wants to accept my resignation as she will be unable/unwilling to work with my going forward, which I understand. However, I wish to retract my resignation as it was a “heat of the moment” resignation’. Mr Omar went on to suggest that the Advice Centre allocate him to a different office.

The Advice Centre refused to accept the retraction of his resignation and treated his employment as terminating on one month’s notice running from 19 February 2020.

Mr Omar claimed he had been unfairly dismissed.

What did the Employment Tribunal find?

The Employment Tribunal concluded that Mr Omar had resigned, and that as a result, there was no dismissal by the Advice Centre. Therefore, in the absence of a dismissal, his claim for unfair dismissal failed. Mr Omar appealed to the EAT.

The EAT Decision

The EAT found that the Tribunal’s decision was ‘substantially flawed’ and that it had not applied the correct legal principles to the case, and that the case would therefore be remitted to a fresh Tribunal to conduct a full rehearing. This means the claim for unfair dismissal will be reheard, and possibly a different outcome will be reached.

The EAT did however use the case as an opportunity to set out guidelines that an employer should consider when dealing with resignations:-

• Words of resignation used by the employee must be construed objectively – consideration must be given to whether, objectively speaking, it would have appeared to the reasonable bystander that the employee really intended to resign.
• What the employer subjectively understood the employee’s words to mean is relevant, but it is not definitive.
• Importantly, the subjective intention of the employee is not relevant (i.e. what was going through their head when they communicated the words of resignation) – the key is what was actually said by the employee.
• It must be apparent that the employee genuinely intended to resign and that they were in their right mind at the time – if an employee is highly emotional then this could lead to a suggestion that their words were not genuinely intended.
• The types of circumstances that might suggest a resignation was not really intended include where the employee is angry and overhasty, is behaving out of character, has a relevant mental impairment, is immature, or is under extreme pressure from another party.
• Aswell as the precise words used by the employee at the time of the resignation, any evidence about what happened after the resignation may also help in judging whether a resignation was really intended at the time. For example, the evidence may suggest the resignation was really intended, but that the employee had simply had a change of heart afterwards, in which case the resignation will still stand.
• The same rules apply to written notices of resignation as to oral ones. However, a written notice will usually indicate to an employer a certain degree of thought and care, which will make it less likely that the employee did not intend to resign.

 

So, what are some useful hints and tips for employers to consider when dealing with heat of the moment resignations…..

Where an employee resigns in an obviously composed and measured manner, it will usually be much less risky for the employer to take the resignation at face value. However, where an employee is visibly upset, angry, stressed, or emotional and impulsively verbalises words of resignation in a pressured or stressful situation, employers should not assume the resignation is valid. Instead, it is good practice to take a step back and assess the situation, consider the exact words used by the employee, alongside the EAT’s guidelines, and decide whether it is reasonable to accept the resignation in all the circumstances.

It would be advisable for managers to take an accurate written note of the exchanges between the employer and employee and to formally record what they understood the employee’s exact words to mean. Any meetings to discuss the resignation should be documented.

It may also be appropriate, to mitigate any risks, to offer the employee an opportunity to take some time out to reflect on the situation. If on reflection they do still wish to resign, employers should ask that they confirm this in writing by giving their formal notice.

These types of situations are undoubtedly a tricky area for employers and no two ‘heat of the moment’ resignations are the same. You, as the employer, have to tread carefully, as if you were navigating through a jungle (see what we did there!). If you have any questions about the effect of this decision, or would like any employment advice more generally, please do not hesitate to get in touch with our Employment team who will be happy to assist.

The obvious theme being the ‘dismissal’, and the fact that employment is ending or has ended. However, in many cases, those concepts are used interchangeably as if they all represent the same claim, yet they are all very distinct and separate claims that have to be considered against the applicable legal principles. A bit like an Urban dictionary, we will tell you what they really mean…

Summary Dismissal

This one is easy – a summary dismissal is a dismissal of an employee without any notice (and without paying them any notice either). Thus, it is quite common in cases of gross misconduct for the employee to be summarily dismissed. 

 

Wrongful Dismissal

This is a breach of contract claim, namely that the employer has dismissed the employee in breach of the terms of the employment contract.

If the employment contract provides that the employee is entitled to 3 months’ notice on termination, but the employer only gives 2 months’ notice, then this will give rise to a wrongful dismissal claim. It is a contractual claim, and the employee will point to the fact that they have suffered loss – 1 month’s loss of salary and benefits.

Often this claim is pursued when the employer terminates without any notice (see summary dismissal above), but the employee contends that the employer did not have grounds to terminate without notice. This claim is not concerned with the fairness of the procedure followed; it is simply an anaylsis of whether the employer has breached the employment contract.

This claim can be pursued in the Employment Tribunal but a cap of £25,000 applies on the value of that claim. Thus, if the wrongful dismissal claim is worth more than £25,000, it may need to be pursued in the High Court.

 

Unfair Dismissal

To bring a standard unfair dismissal claim, the employee needs 2 years continuous service with their employer. No such service requirement exists for wrongful dismissal claims.

If an employee has more than 2 years of continuous service and is dismissed by their employer (irrespective of whether notice was given), they can claim that they have been unfairly dismissed.

The Employment Tribunal will consider three key issues. Firstly, did the employer have a potentially fair reason to dismiss the employee. There are currently 5 recognised potentially fair reasons – capability, conduct, redundancy, breach of a statutory duty or restriction, and some other substantial reason. The dismissal must be for one of those reasons. Secondly, the Tribunal has to be satisfied that the employer followed a fair procedure in reaching the decision to dismiss and thirdly, that the employer acted reasonably in treating that reason as sufficient to warrant dismissal.

Thus, this claim is not about notice; it is about the fairness of the dismissal and will involve an analysis of the reason for dismissal, the procedure followed and whether the decision to dismiss was reasonable. 

 

Constructive Dismissal

The fundamental principle of a constructive claim is that the employee has resigned, as opposed to the employer expressly dismissing them. Note that like an unfair dismissal claim, the employee needs 2 years of continuous service with their employer to pursue a constructive dismissal claim.

In many cases, the employee will resign without notice, but equally, claims can be pursued even if the employee works their notice following their resignation. The employee typically argues that they are resigning either in response to a repudiatory breach of their employment contract by the employer (an express or implied term) or that the employer has engaged in cumulative conduct over a period, resulting in a ‘final straw’ incident, leaving them no choice but to resign.

There is much case law on examples of successful constructive dismissal claims, which can include reductions to, or non-payment of, salary or where the employer has breached trust and confidence.

In essence, the employee has to prove that they have been dismissed ‘constructively’ by their employer. If they are able to overcome that burden, then the Employment Tribunal will consider the fairness of the ‘dismissal’. 

All clear…well, brace yourselves…it is possible for an employee to be summarily dismissed (for say gross misconduct), who then alleges that they were unfairly dismissed (because, for instance, they do not believe the employer followed a fair process in dismissing them) and also alleges that they were wrongfully dismissed (on the basis that the employer did not have grounds to terminate without notice)…

We like to keep things straightforward at Sherrards; we cannot say the same for the law.

 

First the controversy with skipping the queue for the Queen’s lying-in-state, then the conviction of his brother for child sex offences and now his resignation from ITV on the back of the disclosure of his affair with an employee. The most recent controversy regarding his affair raises a myriad of employment law issues, such that this scenario could very easily find its way into an employment law exam paper. The reality is that had Schofield not resigned, ITV would have had a legitimate basis to take disciplinary action:

• It is being suggested that when the affair was investigated by ITV bosses in 2020, Schofield denied that it had happened. Clearly that is a dishonesty issue, and one which is sufficient on its own to result in a breakdown in trust and confidence. Such a breakdown will very often result in dismissal. Clearly there may have been mitigating circumstances that would have influenced that denial, not least the fact that Schofield had only just divulged his sexual orientation publicly in early 2020. Nevertheless, he lied to his employer about a very serious issue, and those indiscretions are often irretrievable.  
• It also raises the question about whether his actions were contrary to any ITV policy on relationships at work, which are commonplace within many organisations. There can be numerous implications of colleagues engaging in personal relationships at work, and particularly so in this case where one of the employees has the public profile that Schofield does.
• It would appear that the issue resulted in a feud between Schofield and his co-presenter, Holly Willoughby. Clearly, the dynamic between them is crucial to the success of a breakfast show and if that relationship has also broken down, it is difficult to see any other outcome than him being removed from that role.
• You can also understand ITVs concern about the reputational damage associated with this fall out. There has been some suggestions that it might mark the end of This Morning but such is the concern about the damage to the brand, that ITV have engaged a barrister to review how the matter was handled in 2020. Most disciplinary policies will have a list of offences that constitute gross or serious misconduct and that will typically include actions of the employee that serve to bring the employer into disrepute. Putting aside the rights and wrongs of the treatment that Schofield is now receiving, the fact remains that his actions have created a situation where ITV and This Morning is under some unwanted scrutiny.

With all of the above in mind, you can understand Schofield’s decision to resign, as clearly his position had become untenable. In many employment situations, it can be better for the employee to resign if facing the inevitable dismissal or disciplinary action; the difference here that this situation is being aired so publicly that the damage has already been done for both parties.

Mark Fellows, Head of Employment at Sherrards solicitors.

Hot on the heels of the US Federal Trade Commission’s (“FTC”) proposal for a complete ban on non-competes, the UK Government has announced its intention to limit post termination non-compete clauses to just three months. This comes as part of a wider announcement of proposals which the government says have been made to help boost the economy, in this case by promoting competition and productivity in the workplace.

When will this happen?

It’s unclear at the moment when this restriction will come into force. Any reform to the rules on non-complete clauses will require primary legislation, which the government’s press release states it will be done “when parliamentary time allows”, so when that will be is anyone’s guess.

What’s the impact of this change?

At first glance, this will cause alarm for many employers, particularly those in recruitment or sales where the exposure of former employees joining a competitor or setting up in competition is a real concern. However, there’s long been criticism in the courts for non-compete clauses with judges seeing them as unreasonable restraint of trade, particularly where there are non-dealing and non-solicitation clauses which can arguably offer sufficient protections to a business’ legitimate interests, without there being a total ban on competition.

What we do know is that the government have confirmed that limiting non-compete clauses will not affect restrictions during garden leave or paid notice periods (the proposal relates to post-termination only), or change the position on confidentiality clauses or non-solicitation clauses (which prevent employees from contacting previous customers, clients or suppliers in an attempt to win their business).

However, amongst other things, the government’s press release was silent on:

• non-dealing clauses (which sit somewhere between non-solicitation and non-compete clauses and are generally, therefore, easier to enforce than non-compete clauses); and
• whether the proposals will have retrospective effect (it’s likely that they will so an employee who spends 3 months of garden leave would likely not be restricted after the end of their employment, regardless of whether the restriction is longer).

What should employers do now?

Until the proposal becomes law, there’s no legal requirement to amend any existing restrictions, however employers that currently have restrictions beyond 3 months, or who are considering introducing them, should think carefully about whether these are likely to be enforceable now, and in the future.

Restrictive covenants are a complicated area and for the best chance of them being enforceable, they should be regularly reviewed. This is particularly important because the courts will only consider whether a restriction is enforceable at the time it’s entered into, not at the time the employer seeks to enforce them (by which time the employee/former employee may have a far more senior position, making the restrictions even more important).

For advice and assistance with drafting enforceable restrictive covenants, contact the Employment Team at Sherrards.

No one is in any doubt that in various sectors, there is a skills shortage affecting not just the UK but the whole world. This, together with the immigration changes introduced by the UK Government earlier this year and the inherent difficulties in bringing staff into the country because of Brexit, is making it on some occasions tricky for employers to find the staff they need.

When the employer has finally found the ideal candidate, the legal obligation to conduct basic checks on every UK-based employee to verify that they have the required permission to work in the UK must be carried out before they can start work. These must be carried out indiscriminately on all potential employees, regardless of their nationality, race, or ethnicity. Sometimes these checks result in questions about the authenticity of the documents provided.

After the hard search, whilst it may be tempting to overlook the reliability of such documents, employers need to be vigilant about the Right to Work checks as the repercussions of getting this wrong for both the business and the individual(s) carrying out the check by way of civil and criminal penalties are severe and may have lasting implications.

During the COVID-19 pandemic, rules were introduced to make the right to work checks slightly easier to carry out, these could be made via video and by using copied rather than original documents. This flexibility was removed back in October and what follows below, is a recap of the checks involved along with the potential fines for non-compliance:

What are right to work checks?

Right to work checks involve the process of UK employers verifying an individual’s eligibility to legally work within the UK, on either a full-time or temporary basis. There is also a review of the type of work to be undertaken by the proposed individual as it is important to ensure that both aspects of the checks are fully compliant with Home Office regulations.

Are right to work checks mandatory?

All employers are legally required to conduct detailed checks and to formally record their findings. In the event of any alleged breach, employers may be able to rely upon a statutory defence if they are able to demonstrate consistent and compliant measures were undertaken during the hiring of individuals, who require permission to work in the UK.

 What are the necessary steps that must be taken by employers to ensure a right to work check is compliant?

There are three steps to be undertaken to ensure that a right to work check is compliant:

Step 1 –obtain all relevant documentation

Step 2 –check all documentation is valid and compliant

Step 3 –retain copies of all submitted items and completed checks

 Is there a specific way in which right to work checks must be conducted?

 All UK employers have to conduct their employee right to work checks manually, in person or through compliant Home Office processes via the online Identity Service Provider (IDSP). All checks must be carried out on all potential applicants, regardless of race, ethnicity, or nationality.

Are there any additional services that employers can use to carry out compliant right to work checks?

There is a free, online Employer Checking Service (ECS) available to all employers allowing them to fulfil their duty to conduct right to work checks.

This service provides an almost instant immigration status check and can be used in circumstances where potential employees are unable to provide acceptable documentation at the time of the manual documentation checking; which can happen where potential employees are awaiting Home Office decisions on pending applications, reviews or appeals.

Are there any penalties for non-compliant employers?

Failure to perform right to work checks correctly can result in serious enforced ramifications, including:

• Criminal Prosecution (of up to 5 years on average)
• Civil penalty fines of up to £20,000 per breach (per illegal employee)
• Sponsor Licence suspension / revocation (or down-grading) which can have a serious effect on business plans.
• Enforced debt action
• County Court judgement
• Business closure

How can a solicitor help with right to work checks?

Right to work checks are a mandatory, legal requirement. Online or digital checks require the employer to check the relevant document or information online and retain a record of the check.

Employers are not expected to be experts on fraud detection – but there are certain expectations on employers to perform their legislative duties under the prevention of the illegal working regime and the Code of Practice for employers.

There are also previous Codes of Practice which may apply when the period of employment started during the time that the previous code was current, and where no repeat check of an existing employee’s right to work has been required.

If an employer fails to carry out its checks correctly, the business will find itself at significant risk of facing one of the above stated penalties. An employer who knowingly employs someone without the correct immigration status may be committing a criminal offence.

It is therefore always advisable for employers to seek specialist immigration advice at each stage of the employment process, particularly since the sweeping changes set out in our immigration briefing earlier this year can now be seen in the existence of a new set of visas which may not be as familiar to the employer, with different checks required for different visas.