Pub and Bar: Avoiding illegal working

Anyone who has worked in hospitality since 2016, will tell you that the past eight years have been a difficult time for recruitment and retention. First there was Brexit, which ended the free movement of EU nationals and narrowed the recruitment pool. Next came the pandemic, which saw many more foreign workers return overseas to stay with family – and not all of them have returned. Now, government policy is targeting an overall reduction of net migration, through several routes, including a tightening of worker visa rules.

All of this has made it harder for recruiters to attract talent, across all sectors including hospitality – but it is more important than ever for employers to ensure their workforce has the right to work legally in the UK. Employers found to not be compliant with right to work checks can face civil penalties for illegal working. In February, the government tripled the illegal working penalties. A first breach now attracts a starting fine of £45,000 (formerly £15,000) and subsequent breaches within three years start at £60,000 (formerly £20,000). So, what should employers be aware of when appointing migrant workers?

Most (though not all) migrants will now eventually need a skilled worker visa to work in the UK and obtaining these will require employers to be licensed by the Home Office and to foot the costs of sponsorship. Managerial level staff will generally qualify for this visa on a skills basis, but ‘lower-skilled’ positions such as receptionists, housekeepers and bar and waiting staff may not be eligible.

Even where roles are skilled enough, salary requirements for the skilled worker visa have increased significantly which will be a further big challenge for the sector - especially outside of London. The general salary threshold has gone from £26,200 to £38,700 and requirements can rise even higher for certain roles. There is some scope however, for lower salaries in certain circumstances – for example, if someone is on a student or graduate visa and is moving to a skilled worker one it can be as low as £30,960 (previously £20,960). Even at the cheaper end of the scale, this is prohibitively expensive, and we may begin to see companies turning away from recruiting migrant workers and prioritising British nationals.

If employing someone on a student or graduate visa they will be able to remain in the UK for two years following the completion of their course but won’t be able to remain in the UK without a sponsored work visa unless following this, unless they have another personal basis to remain (for example, if they are a dependant of someone else). While a recent Migration Advisory Committee (MAC) report advised that the government retain ‘the graduate route’ allowing students to spend two years in the UK after completing a course, there have now been measures introduced to cap the number of foreign students coming to the UK, to make recruiting British talent more attractive. For pubs and bars employing large numbers of migrant workers, these restrictions are likely to present a very serious challenge.

In sum, employers must be careful to monitor the visa status of non-UK national employees and ensure they are receptive to their needs on this front. Failure to comply with regulation is rarely done knowingly, but punishment is now more painful than ever.

Q&A

Q: As an employer - how can I ensure my workplace is welcoming and inclusive to all?

A: One of the most important things an employer can do is make it very clear that they will not stand for any forms of discrimination. Clearly expressing this will help employees to feel empowered to report any incidents in the knowledge that you have their back. Make sure this commitment is also codified in official documents, such as the company code of conduct. Also remember that creating a welcoming environment starts at the very top. Make sure that everyone, from the boardroom to the bar is receptive to employee feedback and willing to take accountability and make changes when required.

Q. A recent report showed that more than two thirds of pints of beer and glasses of wine are being served short-measured. Am I legally bound to make sure that beer and wine servings are fully filled?

A: The Weights and Measures Act 1985 (the Act) and The Weights and Measures (Intoxicating Liquor) Order 1988 (the Order) set out the legal quantities which specific alcoholic beverages must be sold at. For draught beer and cider, for example, these are a third of a pint; half a pint; two-thirds of a pint; and multiples of half pint measures. (Trading Standards guidance confirms that this should include the head!) Meanwhile, spirits may either be sold at measures of 25ml or multiples or 25ml; or 35ml and multiples of 35ml.“Non-compliance with the volumes proscribed in legislation can lead to enforcement action. If a customer make a complaint or Trading Standards launch their own investigation, a random premises inspection could take place and may lead to sanctioning. This recently happened in Yorkshire, where a pub licensee was fined £200 plus a £20 charge for serving measures of rum below the required amount. For more serious offences, possibly including criminal proceedings are an option.

This article was first published by Pub and Bar.