Member Article

Unexpectedly, Home Office guidance Employer’s guide to right to work checks has been updated to expand on the required steps for employers who are taking on an individual to carry out ‘supplementary employment’. It now helpfully gives clarification on what steps should be undertaken to ensure that right to work checks for this category of employees are done correctly. 

Who can carry out supplementary employment?

Routes which include a right to carry out supplementary employment are limited to:

• Skilled Worker
• Intra-Company Transfer routes in place before 11 April 2022
• Senior or Specialist Worker (where transitional arrangements are applicable)
• T2 Minister of Religion
• International Sportsperson 
• Creative Worker
• Government Authorised Exchange
• International Agreement (only if the worker has been granted as an employee of an overseas government or international organisation)
• Religious Worker

What is supplementary employment? 

Supplementary employment is work that a sponsored worker is able to carry out in addition to the work that they are sponsored to do under their Certificate of Sponsorship (“CoS”). 

Supplementary employment is permitted where this is:

• in a job that that is on the Shortage Occupation List, or in the same profession and same professional level as the job for which their CoS was assigned;
• for no more than 20 hours per week;
• if the individual continues to work for their sponsor and any supplementary work takes place outside of the contracted hours for that sponsored employment.

What does an employer need to do?

When employing someone who is sponsored by another employer (and they will be carrying out ‘supplementary employment’ for you) it is essential that you conduct a right to work check, in line with the guidance, prior to their employment with you commencing. 

What has changed? 

Previously, the guidance stated that an employer should ensure that “the individual is able to carry out the employment you are offering”.  However, the new guidance clarifies what steps an employer should actually take to be sure of this information. 

This includes the employer: 

• Carrying out a right to work check to confirm that the individual can do supplementary employment e.g. asking the individual for a share code and carrying out an online check on the Home Office website. The output of this check will confirm the end date of the individual’s permission to be in the UK and also any work restrictions that they are subject to, such as only working for their sponsor plus supplementary employment. 
• Obtaining a letter, or other evidence from the individual’s sponsor which confirms the individual is still working for their sponsor, their job description and occupation code of their sponsored employment, and their normal working hours. 
• Asking the individual if they are doing any other supplementary employment with another employer to ensure they will not be doing more than 20 hours supplementary employment per week. 

It is also important to note that overtime with their sponsor and in the role for which they are sponsored does not count as supplementary employment and would be considered part of their sponsored employment. Albeit such overtime must comply with the Working Time Regulations and meet the relevant salary criteria of the route on which they are being sponsored. 

We regularly see sectors such as Health, Care, Veterinary, Hospitality, and other sections which rely on shift-workers, taking on employees who have the right to carry out supplementary employment. These sectors are often under close scrutiny by the Home Office so it’s important they do all they can to ensure compliance and complete correctly carried out right to work checks.

In light of the recent tripling of civil penalty fines for employing illegal workers, which can be up to a maximum of £60,000 per breach, this clarification on carrying out right to work checks for supplementary employment is therefore welcome for these sectors and any employers who face this issue. 

 

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