Background
Our client is a fine dining restaurant located in a remote village in Cheshire. Due to the shortage of staff in the hospitality industry and the remoteness of the restaurant, the Director has been struggling with operating his business since the ease of lockdown and is desperate for staff to join permanently.
Unfortunately, most candidates are either inexperienced and/or unable to commit on a long-term basis. His recruitment attempts within the local area have also not been very successful as the local population is not familiar with the cooking techniques and spices used in the cuisine. In addition to these, the Director is also particularly worried about complying with the Home Office requirements as the Home Office previously raided the restaurant while it was under the ownership of another person, who was later subject to a civil penalty for employing illegal migrant workers.
The Director came to A Y & J Solicitors for guidance on how he can employ migrant workers and ensure he does not repeat the footstep of the previous owner.
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We were instructed that the restaurant was recruiting for a number of positions, including Restaurant Manager, Floor Manager and various chefs. The Director had begun speaking to a few potential candidates before we began the process of the application; however, most candidates are reluctant to move to Cheshire for the roles. The Director had sought to recruit from outside the UK as his business struggles with the shortage of staff.
The application itself was relatively straightaway. Our client’s main concern was their ability to comply with their sponsor duties as the previous raid is still frequently discussed within the local village. We first reviewed the restaurant’s HR system, including how they currently conduct their Right to Work Check and how documents are stored and how to work attendance is monitored.
We could see that the Director had done all he could to comply with the UK employment law before approaching us. However, they did make one common mistake when conducting the Right to Work check. During our compliance reviews, businesses often accept the UK driving licences as a Right to Work check document or are under the impression that if someone is British, you are not required to conduct a Right to Work check for them.
However, my question to these clients is: How do you know someone is British without seeing their proof of identity? Just because a person ‘looks and sounds British’ does not mean they hold British nationality or have the Right to Work in the UK. They may have been living in the UK for a long time and adopted the customs in the country without any status. Therefore, it is essential for businesses to ask for at least one form of proof of identity for all of their prospective employees to establish their Right to Work.
When conducting the check, it is also important to note that UK driving licences are not a form of accepted ID for Right to Work check because whilst it confirms the person’s address, it does not confirm their nationality and/or status in the UK. For information on how to conduct a Right to Work check correctly, we advise referring to the guidance and official checklist on the government websites to ensure the checks are done correctly and properly to avoid landing on the wrong side of the Home Office inadvertently.
Result:
We provided extensive advice on revising its current HR system to comply with its sponsor duties fully. Regarding their Right to Work check, we also advised the client to rectify their mistake as soon as possible and ensure the correct ID documents are kept on both a physical and electronic file.
We also shared tips on how to avoid employing overstaying, such as setting up a flagging system to monitor their migrant workers’ visa expiry dates and process on conducting an online Right to Work check on the government website.
We are confident that the company will be fully compliant with their sponsor duties so long as they implement our advice and will be ready for a Home Office with ease.
