Is a solicitor under a duty to warn their client of risks falling outside their retainer?
As many HR and global mobility professionals may know, the Home Office frequently updates its guidance and it’s always a good prompt to refresh your knowledge. You may have seen the recently updated guidance on right to work checks. I know the last thing anyone sitting in HR or global mobility wants or has time to do, is read the 40 page document cover to cover. So the most significant changes include:
Most of the changes are clarifications of the existing guidance that really needed bedding down – a very welcome update to help employers with a workforce that includes members of the Windrush generation, for example. With that in mind, it’s always useful to have a refresher on what is expected of you as an employer in conducting right to work checks.
We are often contacted by employers who are either currently falling short on ensuring right to work checks are carried out properly and promptly, or those that want to get started in the right way. Our advice is that it’s all to do with habits and consistency. Once you know what is required of you, it’s about applying it in practice, making it a habit and applying it consistently. So, what follows is a step by step guide to remaining compliant:
Worth noting, as this is something I’ve been asked numerous times, is that checks should be carried out on every single employee, whether British, European or otherwise.
Sometimes the issues we see aren’t with the quality of the checks, but with the timing. Carrying out a check 2 weeks or even 2 days into the employment means you are in breach of your duties as an employer. The checks should be carried out before the employee starts work, not the day after, or a few hours into the role. In an ideal world the check would take place at least a week before the employee shows up to their first day at work. What’s most common is that the employee reports to the HR team to have the checks carried out first thing in the morning before they get to their desk. So if usual start time is 9:30am, perhaps ask them to come in for 9 to produce their documents. Follow up checks are also required for anyone with a time limited visa, so you should be making a note of visa expiries too.
This is just a small piece of the pie when looking at compliance! At Kingsley Napley we offer mock audits and compliance visits to help you get into shape in case the Home Office show up one day. If you feel that your files could do with a spring clean, get in touch.
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