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Legislation www.thefis.org 25 Compliance This complex subject is one that all employers must understand and put into action or face significant penalties, so FIS hosted a webinar in May; ‘Right to Work and Modern Slavery’ where Joanne Young, a consultant for the Association of Labour Providers (ALP) and Pamela Zielinski, Construction Programme Manager for Stronger Together, to give a very clear set of rules to follow to ensure all EU workers employed by members are compliant with immigration laws and also, how employers (and employees) can spot signs that some workers on sites may be there under duress and under the control of unscrupulous bosses, who use them as slaves. The right to work status The ALP was set up with the mission for ‘UK labour provision to be recognised as a model of global good practice’ and Joanne gave a thorough overview of what is changing since the free movement of EU citizens ended on 31 December 2020 and exactly what employers need to do in response. The EU withdrawal agreement provided that EU citizens who worked or lived in the UK prior to 31 December 2020 had ways of applying for status that allowed them to maintain that residence or that work in the UK. EU citizens that did not already work or live in the UK before 31 December 2020 (so, people coming to the UK for the first time) will need to prove their status through the immigration system in order to legally live and work in the UK. From 1 January 2021, if you want to employ workers from outside the UK’s resident labour market, you will have to become a Home Office licensed sponsor. If employers do not comply with these new rules, a civil penalty under the Immigration Act is a fine of up to £20,000 per illegal worker. In addition, employers could be stripped of their ability to be a director and businesses can be closed down. Oddly, there is no legal requirement to carry out right to work checks, but where you do carry them out according to the letter of government guidance, you can establish the ‘Statutory Excuse’, which means that even if you are found to have been employing an illegal migrant worker, then you won’t have to pay the civil penalty, because you can demonstrate that you have gone through the process to ensure that the worker was legal. However, life is never straightforward and there is also a criminal offence that says ‘if you know, or have reasonable cause to believe that you are employing an illegal migrant worker’ then you are facing a five-year prison term and/or an unlimited fine and the Statutory Excuse doesn’t apply. The actual process of establishing the right to work in the UK for a migrant worker hasn’t changed, what has changed is the group of people that must be checked: 1. In the presence of the holder, employers should manually check one or more original documents (all listed on the Government’s Right to Work Guide at www.gov.uk/government/publications/ right-to-work-checks-employers-guide) Remember, this can be done online via Zoom or similar but the employer must have in their hand at the time of checking, the original document. 2. Make, date and retain a clear copy of the document. The future now, is all about online right to work checks. Instead of a potential employee giving you a passport to check, they will provide you with a share code which, along with their date of birth, the employer will enter this on the government website www.gov.uk/view-right-to-work ) to double check the individual’s status. Do not accept the individual’s own page as proof, employers must make this check themselves on the government website. This check will reveal exactly what the applicant can and can’t do and for how long, particularly that they have permission to do the job that you have for them. If it doesn’t, you should not take the application any further as you will not have established the Statutory Excuse. After all the checks, employers must retain the worker’s profile page for all the time the person works for you and an additional two years. The Home Office will have a record that the right to work check has been carried out online for an individual, but it won’t know who by, hence, the importance of keeping the profile page safely. From 1 July 2021, new immigration rules apply for EU citizens. They will have had to obtain a visa prior to their travel to the UK, prove their immigration status and right to work online and employers must check this using the share code. Not all border guards understand the new regulations fully, so there are ways that employers who are employing workers from abroad directly, can support those who get stuck there, by advising them to always carry a second piece of right to work evidence, such as a pay slip, contract or settled/pre-settled status documentation etc. Current government guidance states that employers do not have to carry out retrospective checks on workers who were employed before 30 June 2021. Employment covers all forms of employment, including directly engaged CIS workers. A good source of advice is the publication ‘Workforce recruitment and labour supply from 2021’ on the ALP website at ( https://labourproviders.org. uk/immigration-and-right-to-work ) it is amended as necessary and can be freely downloaded. Modern slavery in construction Pamela Zielinski works for Stronger Together, an organisation that tackles modern slavery in supply chains. She manages their programme for the construction sector in the UK. Doing a right to work check will NOT reveal whether job applicants are victims of modern slavery. The definition of ‘modern slavery’ is: one person depriving another person of their liberty, in order to exploit them for personal or commercial gain. Included in this definition, is human trafficking and forced labour and both are of particular relevance to the work sector. Human trafficking is the act of recruitment, transportation, transfer, harbouring or receipt of people by means of threat or use of force or other forms of coercion, of abduction, fraud, deception, abuse of power or the abuse of a position of vulnerability, or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purposes of exploitation. Consideration must also be given to forced labour – where ‘all work or service that is exacted from any person under the menace of any penalty and for which the said person has not offered themselves voluntarily.’ The relevant legislation is the Modern Slavery Act 2015 and employers commit an offence if they know, or ought to know that someone they employ is being forced to perform compulsory labour. The other element of the Act that is highly important is under section 54, which states that every commercial organisation which supplies goods or services in the UK and has an annual turnover of £36m and over, must produce a statement of the steps they have taken to ensure that modern slavery and human trafficking is not taking place in any of its supply chains and in any part of its business. For businesses not turning over at least £36m there is still a requirement potentially, for their clients and customers to be completing a modern slavery statement – and they will need to be engaging with smaller organisations along their supply chain to understand how they operate so they can say they are taking all the appropriate steps.