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Amendments to the Code of Practice
Amendment Taxation
22 August 2015


The Inland Revenue and HM Customs & Excise have now been merged as HM Revenue & Customs (HMRC). Para 1.2 Tax and employee records should be kept for 6 years from the end of the tax year
Amendment Para 1.3 VAT
22 August 2015

The VAT threshold for the current year is £60,000.
Amendment Para 2.2.1 Preventing illegal working
22 August 2015

The legal requirements are wrongly stated. Where a worker is from the EU or other European Economic Area country then it is sufficient for them to present either an identity card or a passport. Two documents are required only in more complex circumstances. The information in the Appendix to the code is correct.
Amendment Para 2.2.2 Workers Registration Scheme
22 August 2015

Evaluation Requirements
· As a minimum, there are copies of completed application forms for each worker that needs to register with the Home Office within 1 month of them starting work with the Labour Provider.
Amendment Para 2.4.3 Working holidaymakers
22 August 2015

Under the scheme, visas are issued for 2 years but the visa holder is only permitted to work for 1 year.
Amendment Para 2.7 Data Protection
22 August 2015

(L) To release personal details about your workers to a third party, you must first obtain the individual’s written permission to do so
Amendment Para 3.1 Employment Contracts
22 August 2015

(L) Workers must be issued with either a contract of employment or a contract for service. If workers are on a contract for service, this must be issued and signed by the worker before they commence their first job.

Where there is a contract for services there can be no grievance or disciplinary procedures. However, the same rules in respect of minimum wage, holiday pay and sick pay apply. The TLWG would however require a complaints mechanism to be in place to prevent a NC being raised in section 4.9
Amendment Para 3.2 Written Service Level Agreements with Customers
22 August 2015

(L) The Employment Agencies and Employment Businesses regulations 2003 makes it a legal requirement to: o Provide the hirer (Labour User) with a set of terms of business or a letter setting out all the terms agreed. These terms must be listed in a single document and if changes are made, a new statement issued. These terms must specify: o If the LP an agency or business

* Details of any fee
* The amount of the fee or how it is calculated
* The circumstances, if any in which refunds or rebates should be made
* The procedure to follow should a worker provided be unsatisfactory

(L) Workers pay should not be withheld for any reason e.g. non -payment by the client
Amendment Para 3.3 ACU2 forms
22 August 2015

It seems that HMRC (formerly Inland Revenue) makes no use of these forms and they are generally not supplied.
(G) An accurate list of workers supplied should be provided to each customer on a regular basis. This may include information such as hours worked.
Amendment Para 3.4 Health and safety issues
22 August 2015

Evaluation Requirements

* The Labour Provider should have their own copies of risk assessments that have been carried out for each site they send workers to. If risk assessments carried out by their customers are job specific, then the Labour Provider should have copies of the risk assessment for each job performed by their workers.
* Any H&S issues found that are under the control of the Labour User (such as blocked fire escapes) will be recorded as an observation for the labour user only, not a non-compliance against the labour provider.

Amendment Para 3.4.2 Employer’s liability insurance
22 August 2015

(L) This is the responsibility of whoever controls the workers (generally the labour user).
(G) If it is the responsibility of the Labour User, the LP should check that their customers have the required ELCI.
Amendment Para 3.4.3 Providing transport
22 August 2015

There is uncertainty about the legal provisions as to when a PSV licence is required. The TLWG has decided to take the lowest common denominator position.

(L) A PSV licence is required only if the vehicles have more than eight passenger seats and workers are charged.

(L) Drivers need the appropriate licences only if they are driving vehicles classed as PSV vehicles.

(L) Drivers from the EU can drive in the UK without swapping this for a UK licence. Drivers from outside the EU can only stay on a non-EU licence for a maximum of 1 year.

(L) Workers must give their written permission for this deduction to be made.
Amendment Para 4.4 Income tax and national insurance
22 August 2015

L) In 2004/05 the earning threshold for national insurance contributions is £94 a week. The Lower Earning Limit (above which details must be included on form P35) is £82.
Amendment Para 4.5 Minimum wages
22 August 2015

(L) The agricultural minimum wage is £4.85 for manual harvest workers and £5.40 for other adult workers. These figures will increase on 1 October 2015 but the

(L) The National Minimum Wage is £4.85. This will increase to £5.05 on 1 October 2015. For workers under 21 the figure is £4.10, increasing to £4.25 on 1 October 2015.
Amendment 4.9 Harsh or inhumane treatment
22 August 2015

Where contracts for services are used there will no disciplinary or grievance procedures. There will need to be complaints mechanism to enable workers to appeal against poor treatment

(L) If workers are on a contract of employment, then there should be disciplinary and grievance procedures.

If workers are on contract for services, then the TLWG require a complaints mechanism for worker to address ill treatment.
Amendment Section 2.2.1 Preventing illegal working (Code of Practice)
16 November 2004

* (L) Section 8 of the Asylum and Immigration Act 1996 requires all employers in the UK to make basic document checks on every person they intend to employ. By making these checks, employers can be sure they will not break the law by employing illegal workers.

* (L) It is a criminal offence to employ someone aged 16 or over who has no right to work in the UK, or no right to do the work you are offering. The legislation gives employers a statutory defence against conviction for employing an illegal worker. You can establish this by checking and copying certain original documents belonging to your employee. It also obliges you to ensure that your recruitment practices do not discriminate against individuals on racial grounds.

From 1 May 2004 the Government introduced changes to the types of document, which you, as a UK employer, will need to check under Section 8 to avoid employing illegal workers.

Detailed guidance on what procedure you should follow is given in Appendix 1 (Legal requirements) but a summary of action you must take is as follows:

* (L) Ask any potential employee to provide evidence of identity and the right to work in accordance with the guidance relating to List 1* (see Appendix 1 for further information), for example, a passport showing that the holder is a British Citizen, or an Application Registration Card (original documents only).

* (L) Ask any potential employee to provide evidence of identity and the right to work in accordance with the guidance relating to List 2* (see Appendix 1 for further information), for example, the specific combination of a National Insurance card together with a full UK birth certificate, or a work permit together with a passport that shows the holder is able to stay in the UK and can take the work permit employment in question (original documents only).

* (L) Take reasonable steps to ensure that the documents presented to you are correct, for example, check photographs, names and dates of birth match the employee, check expiry dates etc.

* (L) Copy all relevant parts of the documents and retain only your copies.

Amendment Section 2.2 Right to work in the UK (Appendix 1)
16 November 2004

Nationality, Asylum and Immigration Act 2002
It is a criminal offence to assist a person into the UK who is not entitled to enter. Penalties for people trafficking have recently been increased to a maximum of 14 years imprisonment.

Asylum and Immigration Act 1996, Section 8
It a criminal offence to employ someone, aged 16 or over, who is not entitled to work in the United Kingdom or whose leave does not permit them to take the employment in question.

If the offence is tried summarily in a Magistrates Court, the maximum penalty for employing someone who is not entitled to work in the UK is currently £5,000 per worker. If however the offence is tried on indictment in a Crown Court, then there is no upper limit to the level of fine that can be imposed. The offence of employing an illegal worker was made triable both ways from 1 October 2004 under Section 6 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004.

Section 8 also provides a statutory defence for employers against conviction for employing an illegal worker. An employer can establish this defence by checking and copying specified original documents belonging to the employee.

Any one of the following single documents is acceptable -

* A passport showing that the holder is a British citizen, or has a right of abode in the United Kingdom.
* A national passport or a national identity card showing that the holder is a national of a European Economic Area (EEA) country or Switzerland. EEA countries are: Austria, Belgium, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Swedenand the UK.
* A residence permit issued by the Home Office to a national from an EEA country or Switzerland.
* A passport or other document issued by the Home Office which has an endorsement stating that the holder has a current right of residence in the United Kingdom as the family member of a national from an EEA country or Switzerland who is resident in the UK.
* A passport or other travel document endorsed to show that the holder can stay indefinitely in the United Kingdom, or has no time limit on their stay.
* A passport or other travel document endorsed to show that the holder can stay in the United Kingdom; and that this endorsement allows the holder to do the type of work being offered if they do not have a work permit.
* An Application Registration Card issued by the Home Office to an asylum seeker stating that the holder is permitted to take employment.

If one of these documents cannot be produced then one of two combinations of documents must be produced -

The first combination is a document giving the person's permanent National Insurance Number and name (a P45, P60, National Insurance card, or a letter from a Government agency) together with one of -

* A full birth certificate issued in the United Kingdom, which includes the names of the holder's parents.
* A birth certificate issued in the Channel Islands, the Isle of Man or Ireland.
* A certificate of registration or naturalisation stating that the holder is a British citizen.
* A letter issued by the Home Office to the holder that indicates the person named in it can stay indefinitely in the United Kingdom, or has no time limit on their stay.
* An Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the person named in it can stay indefinitely in the United Kingdom, or has no time limit on their stay.
* A letter issued by the Home Office to the holder that indicates the person named in it can stay in the United Kingdom, and that this allows them to do the type of work being offered.
* An Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the person named in it can stay in the United Kingdom, and that this allows them to do the type of work being offered.

The second combination is a work permit or other approval to take employment that has been issued by Work Permits UK along with one of -

* A passport or other travel document endorsed to show that the holder is able to stay in the United Kingdom and can take the work permit employment in question.
* A letter issued by the Home Office to the holder confirming that the person named in it is able to stay in the United Kingdom and can take the work permit employment in question.

An employer must satisfy himself that the potential employee is the rightful holder of any of the documents and that these documents should also allow them to do the type of work being offered. The employer must carry out the following steps when checking all of the documents presented by a potential employee -

* Check any photographs, where available, to ensure that they are consistent with the appearance of the potential employee.
* Check the dates of birth listed to be satisfied these are consistent with the appearance of the potential employee.
* Check that the expiry dates have not been passed.
* Check any United Kingdom Government stamps or endorsements to see if the potential employee is able to do the type of work being offered.

The employer must make a photocopy or a scan of the following parts of all documents -

* The front cover and all of the pages which give the potential employee's personal details, in particular the page with the photograph and the page which shows his or her signature.
* Any page containing a United Kingdom Government stamp or endorsement which allows the potential employee to do the type of work being offered.

Employers can check either a single document from list one OR a specified combination of documents from list two. An employer does not have to check against both lists in respect of each worker employed.

A leaflet on the legislation is available from the Home Office here.
More detailed guidance is available here.

The Home Office operates an Employers' Helpline on 0845 010 6677.

In 1999, the Government issued a code of practice to help employers follow section 8 without discriminating against individuals in the basis of their race. The code is available here.

Amendment Section 4.5 Minimum Wages (Licence to Operate Page 65 and Page 67)
15 November 2004

* (L) Depending on the type of work, workers are entitled to at least the Agricultural Wages Order (AWO) minimum rates for standard workers (currently £4.85 per hour for manual harvest workers and £5.40 per hour for other adult standard workers) or the National Minimum Wage (£4.85 per hour, £4.10 per hour for workers under 21, and £3.00 per hour for workers aged 16 & 17 from 1 October 2004).

* (L) Under AWO, adult packhouse and field workers other than manual harvest workers have to be paid a minimum of £5.40 per hour. Non AWO workers should be paid at the minimum wage rate.

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