England and Wales are now a hotspot for high quality wine producers, and the viticulture sector continues to expand year on year across the UK. While the growth in interest opens up new opportunities for businesses, it brings with it new challenges.
Wine producers, like the wider agricultural sector, often require seasonal workers with informal or irregular working arrangements to meet the fluctuating demands of the business. With this in mind, and as part one of this employment article, Eleanor Bullen-Bell from our Employment Team addresses some of the key issues to consider when employing seasonal workers with a focus on carrying out right to work checks and national minimum wage.
Recruitment and right to work
Employers have an obligation to prevent illegal working and must ensure their workers have the right to work in the UK. If an employer is found to be employing migrant workers illegally, it may face damaging civil and criminal penalties, exemplifying the importance of conducting diligent checks to ensure compliance with the law.
Prior to the commencement of employment, an employer must carry out the relevant right to work checks to establish the identity of the applicant and whether they have the right to live and work in the UK for the specific role at hand. Government guidance provides us with a step by step right to work checklist, which can be summarised as follows:
- Obtain – Obtain the applicant’s original documents or obtain the applicant’s share code and date of birth to access their status via the Home Office portal. Most right to work checks for international workers are now required to be completed via share code/the Home Office approved digital service.
- Check – Conduct a manual document-based right to work check or conduct an online right to work check verification.
- Copy – For manual checks, copy the documents which have been checked, record the date of the check, and retain copies of the documents securely. For online checks, download and retain the profile page, which summarises the completed right to work check.
- Imposter check – you must undertake a video call or meet the applicant in person to verify that their appearance matches that of their ID proving their right to work. A record of the imposter check is required to be kept to ensure a comprehensive statutory excuse for prevention of illegal working.
Employers have an ongoing duty to monitor employees’ right to work in the UK. As part of this, an employer should conduct follow up checks and make a note of important dates (i.e. visa expiry dates) to carry out these checks (especially when an individual has a time-limited visa permission).
To avoid any allegations of discrimination, an employer should establish an applicant’s right to work in the UK at the same stage of the recruitment process for all applicants (for example, once the most suitable candidate is identified).
Employers should also be mindful about seeking to recover recruitment and visa sponsorship costs from individuals. The Home Office is very strict about which costs an employer is permitted to recover from individuals, and trying to recoup charges including the Certificate of Sponsorship or Immigration Skills Charge would be a breach of a company’s sponsor duties. Non-compliance and modern slavery charges arising from debt bondage is a high-profile area of focus for this sector currently, so should be approached with caution.
National minimum wage
The right to receive the national minimum wage (NMW) applies to employees and workers. Compliance with the NMW is assessed by reference to a worker’s hourly rate of pay, which is calculated by dividing the total remuneration in the relevant pay reference period by the total number of hours worked (or deemed to have been worked) over the pay reference period. The applicable rate of NMW depends on the individual’s age and it increases annually in line with inflation, usually in April.
In the agricultural sector, employers often offer accommodation to workers to use while undertaking their seasonal work. It is important to note that accommodation provided by an employer will usually be taken into account when calculating entitlement to the NMW. The accommodation offset figure sets a limit on how much an employer can charge a worker for accommodation without it affecting the calculation of the worker’s earnings for NMW purposes. Since 1 April 2023, the maximum daily rate is set at £9.10 and the weekly rate at £63.70. From 1 April 2024, the new daily rate will be £9.99 and the weekly rate £69.93.
If the employer charges the worker a sum for the provision of accommodation in excess of the offset rate, the difference reduces the amount of the worker’s pay when calculating NMW entitlement. If the accommodation is provided as a benefit in kind (for no charge), the accommodation offset figure can be used towards calculating the worker’s total remuneration. Government guidance makes it clear that the offset should include essential utilities – if employers charge extra for energy or water, that could also take workers below the NMW. The employer must ensure that workers are not paid less than the NMW once the accommodation offset is taken into account to avoid incurring a liability for underpayment.
If you require any further information on the matters covered in this article, please contact Eleanor Bullen-Bell, Sacha Wooldridge or another member of Birketts’ Viticulture Team.
Read more in part two of this article.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at February 2024.