Right to Work obligations and its practical application – Contractors

All UK employers have a legal obligation to prevent illegal working, and civil penalties for employing illegal workers can be severe – up to £65,000 per illegal worker and in in serious cases, a criminal conviction carrying a prison sentence of up to five years and an unlimited fine.

Employers can also be penalised if they employ someone who does not have the right to work and they did not carry out the correct checks, or did not do them properly. So, it is critical that right to work checks are carried out in line with the government guidance in place at the relevant time.

We know that right to work must be verified for all employees, but what about those who are not employees such as contractors?

The Home Office guidance on conducting right to work checks on contractors has created a grey area of confusion amongst employers.

The Employer's guide to right to work checks states: “you are strongly encouraged to check that your contractors and labour providers carry out right to work checks in accordance with this guidance on people they employ, engage or supply (or carry out these checks yourself). This includes anyone in your supply chain using a substitute to perform work on their behalf”.

However, this has not created a new legal duty to check every external worker’s right to work.
Nevertheless, it is important that employers make sure the correct checks are carried out to avoid other negative impact. If illegal workers are removed from your business, it may disrupt your operations and result in reputational damage and potential issues with insurance or health and safety if the identity and skill levels of individuals doing work for you are not as claimed.

If a contractor was found to be working illegally on your premises, it would not result in a civil penalty in the same way as an employee in the same situation. However, the other consequences will ultimately disrupt operations and the reputational damage from negative media exposure has the potential to cause immediate and long-term harm to your business.

In light of the sustained increase in Home Office compliance action, with a substantial rise in premises visited, we recommend that you take Home Office advice and ensure those you engage have their right to work verified, by ensuring the suppliers you work with have appropriate processes in place.

CECA Midlands have partnered with the HR Rely Team at Weightmans LLP to provide help and support to members with bespoke tailored packages at an exclusive discounted price. The HR Rely team have specialist sector knowledge and expertise of the built environment and are able to support on matters such as CIJC terms and conditions.

If you would like to discuss any construction related queries or have any other employment related needs please feel free to reach out to Seema Champaneri directly at seema.champaneri@weightmans.com or find out more about HR Rely by clicking the following link to the Weightmans website.