The Home Office updated the employer’s guide to right to work checks again on 23 September 2024 (and it is stated to apply to right to work checks conducted on or after 16 August 2024).

What has changed?

Key areas of change include:

1. Confirmation that those with a Biometric Residence Permit (BRP) expiring on 31 December 2024 can create a UKVI account and access their visa, without needing an invitation from UKVI to do so;
2. In relation to supplementary employment; 
3. Clarification about the difference between volunteering, voluntary work and voluntary fieldwork, and
4. Information about the employment of Ukrainian nationals.

What are the changes around supplementary employment?

Supplementary employment is a type of time-limited right to work in restricted circumstances, which an increasing number of organisations are encountering.

As a reminder (and this is reflected in the guidance), to be able to undertake any supplementary employment, a worker must:

• work for their employer (sponsor);
• the supplementary employment must be outside the contracted hours with their employer (sponsor); 
• the supplementary employment cannot be for more than 20 hours in total; and
• the supplementary employment must be in one of the permitted occupation categories (see below).

The amendments to the guidance have now made the following clear (in line with changes to the Immigration Rules made in April but until now not reflected in this guidance):

If a Skilled Worker undertakes supplementary employment this must be in an occupation listed in Table 1, 2 or 3 of Appendix Skilled Occupations.

Previously the guidance stated that the Skilled Worker must undertake supplementary employment in a role on the Immigration Salary List (which is similar to the list previously known as the shortage occupation list but with fewer roles on it) or in a role that is in the same profession and at the same professional level as the job for which their Certificate of Sponsorship (CoS) was assigned. The range of roles in table 1, 2 or 3 is much wider than this.

Note, however, that the guidance sets out that if a Minister of Religion (and various other categories of sponsored workers who are not skilled workers) undertakes supplementary employment, this remains as previously (i.e. these sponsored workers cannot benefit from the wider options available in Table 1, 2 or 3 of Appendix Skilled Occupations).

What happens if you find out the employee undertaking supplementary employment is no longer working for their sponsor employer?

The guidance sets out that if, at any point during the course of employment, you believe that the sponsored worker may have ceased working for their sponsor, or that their contractual hours have changed, you should request further information to confirm whether they are still eligible to carry out the supplementary employment.

If you identify that the sponsored worker is working in breach, you are required to take the appropriate action (which could include taking steps to terminate employment).

How can we help?

We can review any right to work processes or policies you have and advise on compliance with right to work guidance and any improvements that could be made.  We can also advise on whether it may be appropriate to terminate employment if there is a breach and the steps to take in order to do this.

If you have any questions or would like advice on right to work or employing (or dismissing) individuals on the basis that they can work for up to 20 hours per week, or on sponsorship more generally, please contact  Hazel Findlay or Katherine Sinclair.