Making Right to Work checks throughout your supply chain: an update to guidance

By Tony Machin | October 21, 2024 | Compliance, Right to Work

We’re often asked by employers about their responsibilities around Right to Work checks when they’re working with sub-contractors or someone who is self-employed. In September, Right to Work guidance was updated by the Home Office to address this question. It now includes a strong recommendation to employers to check that contractors conduct Right to Work checks on those they employ or engage, or to carry out the checks themselves.

The latest employers guide to Right to Work lists several reasons why an organisation should check that any workers which they use or supply have the right to work. These include:

1) To avoid disruption and reputational damage

In an effort to crack down on illegal working, the Home Office has publicised that it is actively investigating businesses across the UK. Immigration Enforcement teams have been making targeted visits to those businesses who they suspect are employing workers illegally. Any such visit can be hugely disruptive to the day to day running of your business, particularly if your records are not fully in order or the visit results in the removal of illegal workers, whether you’re their employer or not.

What’s more, an immigration enforcement raid will often hit the headlines. A recent case on a North Wales construction site involved dawn raids by immigration enforcement who removed 13 staff. Ultimately, the two named organisations didn’t face fines, as the illegal workers were subcontractors, but they did face an extensive investigation into their employment and modern slavery practices and the organisations’ names were widely spread across the media.

2) Meet Health & Safety and safeguarding obligations

A Right to Work check is an essential way to confirm that an individual who is working with you is who they say they are. As the new guidance points out, there could be an adverse impact on your health and safety obligations, as well as potential invalidation of your insurance, if you do not correctly confirm an employee’s identity, qualifications and skill levels.

A Right to Work check is also a critical step in your safeguarding obligations and as part of the fight against modern slavery. In many cases, illegal workers live in unacceptable conditions, earning far below the UK national minimum wage and working longer hours than legally allowed.  Immigration Enforcement teams also work closely with the Gangmasters and Labour Abuse Authority and other organisations to allow employees to report labour exploitation and play a critical safeguarding role.

3) Uphold your sponsorship duties

A Tier 2 sponsor is responsible for maintaining compliance for each worker they hire, no matter the circumstances. This includes in the case of contracting workers with a third party: the contract for the work provided is held by the sponsor, and the services provided by the foreign worker are the sponsor’s direct responsibility. So, although you are not required to establish a statutory excuse for a worker who is not your direct employee, you must still carry out Right to Work checks (and retain evidence you have done so) to comply with your sponsor duties.

4) Meet the requirements of industry best-practice standards

Certain employment sectors are regulated by industry-specific standards. For example, for registered care providers, CQC Regulation 19 mandates that employment checks, including Right to Work checks, are thorough and satisfactory, including when conducted by a third party.

In summary, the latest Home Office guidance now strongly encourages employers to check that your contractors and labour providers carry out Right to Work checks on people they employ, engage or supply, or to carry out these checks yourself. This includes anyone in your supply chain using contractors or temporary staff to perform work on their behalf.