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Employment Update for Small Businesses
May 2023

Dear Subscriber

There have been some significant changes to the way you should carry out right to work in the UK checks on new starters, and that is covered in this month’s update.  Also, as I am sure you will have noticed that there seem to be quite a few bank holidays at the moment, we consider what employers’ legal duties are with regards to bank holidays – particularly extra bank holidays, such as the one on 8th May for the coronation.
Please contact me if you would like to find out a bit more about any of the subjects raised in this update or if you need any help or advice.

Please forward this email to any of your contacts who might find it of benefit.

Peter Etherington
Tel: 01664 668164

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Peter Etherington
Right to Work in the UK
How to conduct appropriate checks
We strongly advise that you check every new employee’s right to work in the UK before they start working for you. Normally at the offer stage is best. If you only carry out checks on people who you suspect may not be UK nationals, that could lead to claims for race discrimination.

It used to be that you needed to see a whole host of original documents that you had to photocopy or scan and retain, but things have changed recently.

It is still the case that the easiest check for any UK national who has a passport (current or expired), is to show you their passport for you to check, photocopy or scan, record the date the check was carried out and file it. However, for others (such as EU nationals with a residence card) there is now an online checking system via the gov.uk website. The individual needs to obtain a share code from the Home Office (which they can do online) and provide it to you. You then input the share code along with their date of birth into the relevant web portal, and check the photograph there matches the individual. Finally you need to retain evidence of the check.

You can find full guidance on how to carry out both manual and electronic checks here.

If you wish to employ someone who does not have the right to work in the UK, you would need to apply to become a sponsor in order to then issue them with a sponsorship visa. That is a much more complex process and you may benefit from separate specialist advice to help you through the process. We could direct you to an external resource if that is something you would like to explore.

What, another bank holiday?
What are the legal requirements?
There is no statutory requirement for employers to give staff a day off on a bank holiday or to pay more if they are required to work on one. The only statutory holiday requirement is to give workers a minimum of 5.6 weeks’ paid holiday per year (28 days for someone working a 5-day week). In many cases, employers give 20 days plus bank holidays, which meets the legal requirement (as there are no less than 8 bank holidays each year).

Any entitlement to take bank holidays off or to be paid more to work on them, is a contractual matter. So you should check your contract to see what is says. There are a number of possibilities such as:

  1. 28 days per year, including bank holidays
  2. 20 days each year plus bank holidays
  3. 20 days each year plus the 8 standard bank holidays

This will then govern what you need to do when there is an additional bank holiday. In the case of 1, above, in 2023 you would only need to give 19 days plus the 9 bank holidays to comply with statute and your contract. However, you may choose to grant the additional bank holiday anyway.

For 2, above, you would need to give 20 days plus 9 bank holidays, as you do not put any cap on the bank holidays.

For 3, above, you would need to give 20 days plus the 8 normal bank holidays, and you could either have staff work on 8th May (the additional bank holiday) or, you could give notice for them to take it as a day’s leave out of their 20 day entitlement. Again, you could choose to grant it to them as an additional day if you wish.

Whatever you do, make sure part-timers receive the same entitlement on a pro rata basis as full timers.  So if you grant full-timers an extra day, that means they get 29 days in total or 5.8 weeks. So part time staff should also receive 5.8 weeks in the same year, including any bank holidays that fall on their working days and are taken as paid leave. It makes no difference if the extra bank holiday does not fall on one of their normal working days.

National Minimum and Living Wage
The current National Living Wage and National Minimum Wage rates are:

  • £10.42 per hour for workers aged 23 and over
  • £10.18 per hour for workers aged 21 to 22
  • £7.49 per hour for workers aged 18 to 20
  • £5.28 per hour for workers aged 16 and 17
  • £5.28 per hour for apprentices under 19 and those over 19 in their first year*

*N.B. Apprentices over 19 and who have completed at least one year are entitled to the appropriate rate for their age.