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The law related to right to work checks and illegal working changed in May 2014. Annabel Mace and Supinder Sian, of the UK business immigration team at Squire Patton Boggs, discuss the changes and explain what employers need to consider if they acquire new workers under TUPE or through Tier 2 or 5 sponsorship.
In any type of corporate restructure, an employer needs first to consider whether it will be acquiring new employees, as this will trigger an obligation to carry out prescribed right to work checks regardless of nationality or immigration status. The law and supporting guidance in this respect changed on 16 May 2014
If employees are transferred to a new employer under the Transfer of Undertakings (Protection of Employment) Regulation 2006, SI 2006/246 (TUPE)--which could be triggered by a change in service provider as well as a corporate restructure--the new employer has a grace period of 60 calendar days from the date of the transfer in which to carry out these right to work checks. Where there has been a change of employer but no TUPE transfer, the checks must be carried out before the new period of employment begins.
If it transpires that any of the acquired employees do not have the right to work and cannot obtain or apply for work permission within the 60-day grace period (either by their own means or through Tier 2 or 5 sponsorship by the new employer), the new employer should take steps to dismiss those employees (subject, of course, to following a fair dismissal process).
An equally important consideration is whether or not any of the employees being acquired are sponsored by the exiting employer under Tier 2 or 5 of the Points-Based System. This will ideally have been established well in
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