Recently, there has been an increase in the number of civil penalties issued by the Home Office and this means that right to work compliance remains a critical issue for all employers, including those in the health and social care sector.  Increased data sharing with HMRC is likely to mean that compliance action will increase further.

Many care providers hire employees who are sponsored by another organisation but carry out supplementary employment for them. This supplementary employment is limited to 20 hours per week.  Similarly, many employers hire students who can usually work up to 20 hours per week during term time.

Home Office guidance does not expressly refer to sleep-ins but does state that employment ‘includes paid and unpaid employment…self-employment and engaging in business or any professional activity’.  If case law on the National Minimum Wage is followed, arguably, sleep-ins would not be included in the 20 hours. However, this is different to the position under the Working Time Regulations where time would be included. Providers erring on the side of caution have generally taken the Working Time Regulations position and aim to ensure that sleep-ins are included in the 20-hour per week calculation. 

We have seen a civil penalty recently issued by the Home Office, partly on the basis that the Home Office considered that hours spent during a sleep-in count towards working hours for the purposes of the 20-hour per week limit.  This was the case even if the worker did not wake at all. 

The Home Office states within the civil penalty notice that they consider a sleep-in shift to be paid employment (albeit potentially under the National Minimum Wage) and attendance for the duration of the sleep-in shift is engaging in business or professional activity, which falls within the definition of employment for these purposes.  They point out that workers are required to be on-site during the sleep-in shift and cannot leave mid-shift due to the nature of the work and the care being provided. 

What does this mean in practice?

Taking a practical example, a support worker does the following:

• A 10-hour sleep-in from 9pm on Monday to 7am on Tuesday (they are not woken)
• A 9-hour sleep-in from 10pm on Wednesday to 7am on Thursday (they are woken for 1 hour)
• 2 hours during Saturday lunchtime 12pm to 2pm.

They are employed on the basis that they are undertaking a maximum of 20 hours of supplementary employment per week (while being sponsored by another employer).

They will therefore be considered to have carried out 21 hours of employment in one week. This exceeds the 20-hour maximum and therefore is considered to have worked illegally in breach of their immigration conditions. Their employer could be subject to a civil penalty.

What are the consequences?

As civil penalties are up to £45,000 for a first offence and £60,000 for a second offence, per illegal worker, it is essential to get this right and ensure that managers in charge of rotas are aware of the potential implications of permitting someone who has a restricted right to work to work an additional hour or undertake a sleep-in.

Civil penalties are not only a financial strain, but can also cause reputational damage and could result in the revocation of a sponsor licence (for those employers who also sponsor workers themselves).

What should providers do?

1. Review employment practices – check whether sleep-in shifts are currently taken into account when calculating the maximum 20 hours per week for those with restricted right to work (such as students and those undertaking supplementary employment).
2. If sleep-ins have not been taken into account, consider whether to report this to UKVI. Advice may be required on this.
3. Communicate the position to key people internally – particularly to managers in charge of rotas and the employees on visas with restricted right to work
4. Update any internal policies to include this point.

Key takeaway

The Home Office has clearly indicated in a civil penalty notice that it considers that sleep-in shifts count towards the 20-hour supplementary employment limit, so we advise ensuring that this is taken into account when planning work rotas.

For advice relating to right to work, civil penalties or sponsorship, contact Hazel Findlay – hazel.findlay@anthonycollins.com. 

To find out more about our expertise in this area and how we help our clients, see our business immigration webpage.