Currently, the duty to undertake right to work checks applies to employers who employ staff under a contract of employment, service or apprenticeship. It does not apply to workers who are not a direct employee, for example where they are self-employed.
This distinction has meant that most gig economy companies, such as couriers, taxi service providers, and food and goods delivery services, have not been subject to the civil penalty regime, and have been left to regulate themselves. Unsurprisingly, this has led to gig economy companies becoming a haven for illegal work. During random checks two years ago, the Home Office found that two in five delivery riders who were stopped were working illegally. Much of the opportunity to undertake illegal work is created by the availability of substitution clauses. These clauses are used by gig economy companies to allow drivers and riders flexibility to appoint a substitute if they wish. They are however openly used to allow people with no permission to work in the UK to work illegally.
The App Drivers and Couriers Union recognises the issues arising from a lack of regulation in the sector, saying “Unfortunately there is this loophole that allows some bad people to come through. They are not vetted so they could do anything”.
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