Employers have a legal duty to prevent illegal working in the UK and must check that members of staff have the right to work. The implications of not carrying out such checks can be expensive and damaging to a business’ reputation.
Who should employers check?
Right to work checks should be carried out on all employees not just on those who appear to be of non-British descent. Assumptions should not be made on the basis of someone’s colour, nationality, ethnicity or their length of time in the UK. Otherwise, as well as risking someone falling through the net, you might end up with discrimination claims.
When should employers conduct checks?
You should carry out checks before you employ someone. You should also conduct follow up checks where permission to work is time limited e.g. those with a visa with an expiry date.
What happens if I don’t do it?
Employers who fail to carry out these checks and are found to have employed illegal workers may face a civil penalty of up to £20,000 per worker. Employers will also commit a criminal offence if they knowingly employ an illegal worker, which carries up to two years’ imprisonment and an unlimited fine.
You can avoid a civil penalty if you can demonstrate that you have carried out adequate checks before someone starts work; this is known as having a ‘statutory excuse.’ If the Home Office find that you have employed someone without the right to work, but you have correctly conducted document checks, you will not receive a civil penalty.
How to conduct the checks
1. Obtain original versions of one or more acceptable documents
2. Check the documents’ validity
3. Make and retain clear copies and record the date of the check
Step 1: Obtain
Acceptable documents: continuous statutory excuse
- British passport;
- Passport, national identity card, registration certificate or permanent residence card showing that the applicant is an European Economic Area (EEA) national;
- A Permanent Residence Card issued by the Home Office to a family member of an EEA national;
- A current Biometric Residence Permit issued by the Home Office confirming that the applicant is allowed to stay in the UK indefinitely;
- A current passport showing that the holder is exempt from immigration control;
- A full birth or adoption certificate issued in the UK, Channel Islands, Isle of Man or Ireland, which details the names of the applicant’s parents, together with an official document issued by a Government agency or their previous employer confirming their national insurance number;
- A certificate of registration or naturalisation as a British citizen, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer.
Acceptable documents: time limited statutory excuse until the expiry date of the applicant’s visa
- A current passport endorsed to show that the applicant is allowed to stay in the UK and is permitted to do the type of work in question;
- A current biometric residence permit issued by the Home Office which shows that the holder is allowed to stay in the UK and is permitted to do the type of work in question;
- A current Residence Card issued by the Home Office to a family member of an EEA national.
Acceptable documents: time limited statutory excuse for six months
A certificate of application which is less than six months old issued by the Home Office to a family member of an EEA citizen stating that the holder is permitted to work together with a Positive Verification Notice from the Home Office Employer Checking Service.
Step 2: Check
Carry out a check in the presence of the applicant including:
- Name, photographs and dates of birth are consistent;
- Expiry dates for permission to be in the UK have not passed;
- Are there any work restrictions on the visa;
- The documents are genuine, have not been tampered with and belong to the holder.
Step 3: Copy
- Make a clear copy of each document that you have checked.
- Ensure the copy is in a format which cannot be altered.
- Retain the copy securely, electronically or in a hard copy.
- Retain a secure record of the date you made the check.
You should keep the copies for the duration of employment, plus an additional two years after employment ceases.
What does this mean for you?
All offers of employment should be subject to evidence of a right to work in the UK. If you have instructed others to carry out your right to work checks, they should be given training on conducting those checks.
Where can I get more help?
The Home Office have produced a number of guides to assist in carrying out the checks. Employers can use this tool to determine whether a potential employee has the right to work in the UK. There is also a ‘Right to Work Checklist’ which can be found here.
Stephens Scown is the only law firm in the region to have a specialist immigration team. The firm can provide advice and assistance to employers on compliance with the illegal working provisions, carrying out right to work checks and on civil penalty notices. Please contact Lisa Mulholland or Veera Thakur on 01392 210700 or email firstname.lastname@example.org.