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HR & EMPLOYMENT LAW Jackie Le Poidevin, Editor-in-Chief, HR Adviser |
7 Tips to Prevent Illegal Working as Penalties Triple
On 13 February, the civil penalty for employing an illegal worker tripled to up to £60,000 per worker. On the same date, a revised Code of Practice on the right-to-work scheme also took effect. Here, we explain what you need to know about the changes and give some tips to protect your business from fines.
Understand the Legal Framework
If the Home Office discovers that one of your employees is working illegally, you will be subject to a civil penalty unless:
- You can show you’ve carried out a compliant right-to-work check on them, AND
- There’s no evidence you knew or should have known you were employing an illegal worker.
The new penalties are as follows:
- £45,000 per illegal worker for a first breach (up from £15,000).
- £60,000 per illegal worker for repeat offences (up from £20,000).
If you’re fined, the Home Office will also ‘name and shame’ you on its website, which could be reputationally damaging.
In addition, if you employ someone who you knew or had ‘reasonable cause to believe’ was working illegally, you could face criminal sanctions, including an unlimited fine or up to 5 years in prison.
It’s been reported that immigration compliance visits have been stepped up recently, so it’s more important than ever to ensure you’re carrying out right-to-work checks correctly.
Top Tips to Avoid Penalties
These are the key steps you can take to remain legally compliant:
- Make sure you’re complying with the latest Home Office guidance on right-to-work checks, as the requirements have changed significantly over the years. The new Code of Practice on Preventing Illegal working: Right to Work Scheme is at: tinyurl.com/HRA-illegal-working-code
- Train managers who carry out right-to-work checks in the correct rules and provide clear written guidance for them to follow.
- Carry out the checks before the person starts working for you.
- If an employee has a time-limited visa, diarise when this expires and repeat your check in good time. Even if you carried out the initial check correctly, failing to do a follow-up check in time after 13 February means you could face the new, higher penalty if the employee is no longer entitled to work for you.
- Be careful to comply with any conditions attached to employees’ visas.
- Keep a secure copy of all right-to-work documents and checks.
- Consider regularly auditing your right-to-work records and processes to see if the requirements which were in place at the time the check was completed were correctly followed. The new Code of Practice lists which version of the code applied when and there’s a link to access the previous versions.
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HEALTH & SAFETY Emma Lampka, Editorial Board Member, Health & Safety Adviser and Risk Assessment & Compliance |
HSE Launch ‘Asbestos – Your Duty’ Campaign: Your Dos and Don’ts
Asbestos is the single greatest cause of work-related deaths in the UK and is responsible for more than 5,000 deaths every year. It can take between 15-60 years for symptoms to develop after exposure, so although it may not affect people immediately, it may do later in life. To help reduce exposure to this dangerous substance, the Health and Safety Executive’s (HSE) launched their recent ‘Asbestos – Your Duty’ campaign. It focuses on buildings that people use in their everyday lives, such as workplaces, schools and hospitals.
Asbestos was widely used in post-war construction before it was completely banned in 1999. Businesses and organisations responsible for premises built before the turn of the century, and especially those between 1950 and 1980 when the use of asbestos in construction was at its peak, must carry out the necessary checks and understand their legal responsibilities.
People who visit or work in these buildings will not be exposed if asbestos is properly contained. But it can become dangerous when disturbed or damaged. The HSE wants anyone with responsibilities for buildings to do everything they can to comply with the law and prevent exposure to this dangerous substance.
Comply with Your Legal Duties Surrounding Asbestos
Under the Control of Asbestos Regulations 2012, If you are responsible for the maintenance and repair of non-domestic premises you are required to:
Do
- Take reasonable steps to find out if there are asbestos-containing materials (ACMs) present and, if so, how much material, where it is, what type it is (for example, tile, boards, lagging) and what condition it’s in.
- Make a record of the location and condition of the ACMs (or materials which are presumed to contain asbestos). Keep this up to date.
- Clearly identify any areas that have not been surveyed.
- Prepare a plan that sets out how the risks from these materials will be managed.
- Take the necessary steps to put the plan into action.
- Provide information on the location and condition of any ACMs to anyone who’s liable to work on or disturb them.
Don’t
- Disturb asbestos. It’s only dangerous when disturbed and if safely managed and contained, it’s not a health hazard.
- Remove asbestos unnecessarily. This can be more dangerous than leaving it in place and managing it.
Your 11-step Asbestos Management Plan
To help you carry out your ‘duty to manage asbestos’, adopt the following plan:
- Are you responsible for maintenance or repair? If yes, does the duty to manage apply to you and your premises?
- When was your building built? Was it built before 2000, are you on a brownfield site or do you use old equipment?
- What information do you have already? Look at building plans, previous asbestos surveys and any other relevant documents.
- Inspect your building. Create an asbestos register to list where asbestos may be present. You may want to use an external service contractor to undertake this survey.
- Determine priorities for action. Use your own internal scoring system to work out what to address first.
- Decide how to deal with the different types of asbestos. If you do not have the internal expertise, consult a specialist on how to treat the different types of asbestos e.g. sprayed asbestos, asbestos cement, etc.
- Write your asbestos management plan. The plan should bring together your asbestos register, plans of work and schedule.
- Test for asbestos. If work is required, you need to test for asbestos first.
- Tell people what you’re doing. You need to tell employees, contractors and maintenance workers about your findings.
- Get the work done. Does the work need a licensed contractor? If you are not sure, consult a specialist who can provide you with appropriate guidance.
- Keep your records up to date. If any work is done on asbestos, your records need updating and you need regular checks on the state of the asbestos.
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PAYROLL Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
Car Allowances: Are You Due a National Insurance Refund?
Where an employee uses their own car for business journeys, you can pay tax-free mileage allowances as long as the amount paid does not exceed the approved amount for the tax year. The approved amount is simply the business mileage in the tax year multiplied by the approved mileage rate for the vehicle in question. For cars and vans, the approved rate is 45p per mile for the first 10,000 business miles in the tax year and 25p per mile for any subsequent business mileage.
It’s also possible to make mileage payments free of National Insurance. However, for National Insurance purposes, the position is considered separately for each earnings period. Under the National Insurance rules, ‘Relevant Motoring Expenditure’ (RME) is disregarded from earnings up to the ‘Qualifying Amount’ (QA).
For cars and vans, the QA is the business mileage in the earnings period multiplied by 40p per mile. The 40p per mile rate applies regardless of the number of business miles in the tax year.
Following a recent Tribunal decision (Laing O’Rourke Services Ltd v HMRC; HMRC v Willmott Dixons Holdings Ltd [2023] UKUT 00155 (TCC)), HMRC accepted that the definition of ‘RME’ was wider than previously thought. This may mean that a National Insurance refund is due.
What has Changed?
Prior to the Tribunal decision, HMRC took the view that car allowances, such as those paid where an employee took a cash allowance instead of a company car, were not RME. Consequently, the full amount of the allowance had to be included in earnings for Class 1 National Insurance purposes.
Refunds
Employers who have paid National Insurance which under the wider definition of RME would not have been due may be able to correct the position via Real Time Information (RTI). Where this route is taken, claims must be substantiated on a pay-by-pay period basis and HMRC will require the following information in support of the claim:
- A list of employees included in the claim, together with their National Insurance numbers.
- Evidence of the business mileage undertaken by each employee.
- The amount of the car allowance payments received by these employees.
- Details of any other Relevant Motoring Expenditure payments received by the employees (such as mileage payments).
- The primary and secondary Class 1 National Insurance contributions that are being reclaimed.
Where it is not possible to correct an overpayment through RTI, claims can be made in writing to HMRC using the reference ‘Relevant Motoring Expenditure’. The claim must include the details listed above, together with an explanation why a correction cannot be made through RTI.