It is a legal requirement for employers to make sure that prospective employees have the right to work in the UK before their employment starts. The risk to businesses is significant given the extent of penalties that can be imposed for employing illegal workers. The Home Office have been conducting more and more spot checks on businesses as part of their ‘Hostile Environment’ policy, which seeks to make it increasingly difficult to work and reside in the UK illegally.
With employers facing civil penalties of up to £20,000 per illegal worker, making sure that you have carried out an adequate right to work check and therefore have obtained a statutory excuse could mean the difference between being in business and not being in business. A valid statutory excuse will allow a business to avoid civil penalties.
Furthermore, an employer who knows or has reasonable cause to believe they are employing an illegal worker will be committing a criminal offence and can face up to 5 years in prison and/or unlimited fine. Despite this, many employers are not completely aware of all the aspects of carrying out an adequate right to work check and many are falling foul of the law in this area.
How to carry out adequate right to work checks?
The three step process:
- Obtain the employee’s original identity documents;
- Check the documents are valid with the employee present;
- Copy the documents, keep the documents securely and record the date of the check.
A ‘repeat check’ is required for certain individuals depending on their status in the UK.
It is important to note that you can only obtain a “statutory excuse” should you be found to have employed an illegal worker, if the steps above are followed and an adequate right to work check is carried out. It is not sufficient to merely obtain the relevant identity documentation. If these steps are not carried out and you are found to have employed someone that does not have the right to work in the UK, you may face a large fine. This is the case irrespective of whether you were unaware that the worker did not have the right to work in the UK. It is important to remember that a person’s immigration status cannot be ascertained merely by their appearance. Employers must balance avoiding unlawful discrimination whilst trying to prevent illegal working. Carrying out right to work to checks on all new employees in the same manner is the safest way to make sure that the business is not being left open to the risk of huge fines and potential discrimination claims.
Right to Work Checks after we leave the EU
With the UK leaving the EU, right to work checks are likely to become more relevant as there will be more people who potentially would not have the right to work in this country. Businesses may also have to carry out more follow on checks than they currently do as more people will be subject to immigration control. Employers must ensure that they have robust systems in place to carry out adequate right to work checks in line with the law. This involves training your staff on the process and the potential consequences for getting it wrong.
We are receiving many enquiries from employers on civil penalty notices, sponsorship licences, work visas and the future of employing EEA workers in the UK. Our Immigration Team is experienced in advising and supporting clients on such matters.
Our immigration solicitors and advisors work in partnership with organisations to improve their immigration practices and advise on immigration issues. To discuss this article or any other immigration issue call 01392 210700 or employment@stephens-scown.co.uk.