As an employer, you have a duty of care to conduct right to work checks to ensure you’re staying compliant with the law. If you employ migrants from outside the EU, the Home Office have issued new guidance for you to follow.
Here’s what you need to know.
(Updated as of 06 April 2020)
“All employers in the UK have a responsibility to prevent illegal working. You do this by conducting simple right to work checks before you employ someone, to make sure the individual is not disqualified from carrying out the work in question by reason of their immigration status. This guidance provides information on how and when to conduct a right to work check. You should also refer to the code of practice.”
The law on preventing illegal working is set out in sections 15 to 25 of the Immigration, Asylum and Nationality Act 2006 (the 2006 Act), section 24B of the Immigration Act 1971, and Schedule 6 of the Immigration Act 2016.
- As the employer, you are liable for the civil penalty even if a member of your staff performs the right to work checks
- Statutory excuses will not suffice is the checks are performed by third parties such as a recruitment agency or professional advisor
- It is a criminal offence to employ someone who the employer knows or has reasonable cause to believe is an illegal worker – employers can face sanctions such as
- A civil penalty of up to £20,000 per illegal worker
- In serious cases, an unlimited fine, and up to five years in prison
- Closure of the business
- The inability to sponsor migrants
- In most cases you will be able to conduct either a manual or online check. In certain circumstances, you will need to contact the Home Office’s Employer Checking Service (ECS) to establish a statutory excuse
- You should not discriminate when conducting right to work checks. You should conduct right to work checks on all potential employees
- You are required to carry out an initial right to work check to prevent illegal working on all people you intend to employ before you employ them. Once you have completed this check, you will be required to carry out follow-up right to work checks if the individual’s permission to be in the UK and to do the work in question is time-limited
Right to work checklist
“Found here, the checklist explains the types of documents that are acceptable for checking an employee’s right to work and how long the check is valid for.
All employers are expected to comply with the law and ensure their employees have the right to work in the UK by carrying out the correct checks”
Right to work involves 3 simple steps:
- Obtain All employers are expected to comply with the law and ensure their employees have the right to work in the UK by carrying out the correct checks.
- Check the documents are valid with the employee present.
- Copy and keep the documents securely. Record the date of the check.
Code of practice for employers: avoiding unlawful discrimination while preventing illegal working
“Employers have a duty to prevent illegal working in the UK by carrying out document checks on people before employing them to confirm they have a right to work here. Failing to conduct these checks is not itself a criminal offence, but if an employer only carries them out on people who they believe are not British citizens, for example, on the basis of their colour, or ethnic or national origins, they could find themselves accused of discrimination and it could be used as evidence against them in proceedings under the Equality Act 2010 or the Race Relations (Northern Ireland) Order 1997.
This is why we recommend that you, as an employer, obtain a statutory excuse for all prospective workers as this will protect you from liability for a civil penalty if the person in question is an illegal worker, whilst also demonstrating consistent, transparent and non-discriminatory recruitment practices. Where the employee only has a limited entitlement to remain in the UK, these checks should be repeated as prescribed in the guidance and ‘Code of practice on preventing illegal working: civil penalty scheme for employers’ in order to retain the excuse.”
- This code of practice is applicable where employment commences on or after 16 May 2014 – all employers in England, Scotland, Wales and Northern Ireland must adhere
- Though this is a statutory code approved by the Secretary of State, it does not impose any legal duties on employers, not is it an authoritative statement of law; only the Courts and Employment tribunals can provide that
- Other discrimination grounds under the 2010 act include:
- Age / disability / gender reassignment / marriage and civil partnership / pregnancy and maternity / religion or belief / sex or sexual orientation
Civil penalty scheme for illegal working: code of practise, 2014
“The civil penalty scheme is designed to encourage you to comply with your duty as an employer to prevent illegal working by carrying out document checks. It also means that you will not face a criminal sanction if you have failed to act with due care and diligence in doing so. The civil penalties we impose are intended to be proportionate to the level of non-compliant behaviour and are therefore calculated on a sliding scale.”
- If found employing an illegal worker, you may be issued with a notice informing you of the case referral
- At this point, you are advised to consult the Home Office guidance which details your right to object and appeal
- If payment is to be made, this can be done via:
- Fast option (within 21 days) which reduces the penalty by 30%
- Instalment options are usually up to 24 months
- Determing liability and the penalty amount is based on factors such as:
- If you have a valid statutory excuse
- If you’ve been found to be employing illegal workers previously
- If you have mitigating circumstances
- If you’ve actively cooperated
- If you have effective document checking practises
Please be advised that the above information is not exhaustive as there are more requirements and points to consider.
For more information on right to work checks, send an email to firstname.lastname@example.org or contact us on 01204 531 535 to book a telephone/Skype consultation. The fee is £30.
To limit the spread of the Coronavirus (COVID-19), until further notice, our drop-in service and all scheduled appointments will be held remotely. Please be advised that whilst our remote drop-in service will be held on Mondays between 10am – 1:30pm, our Friday service (usually held in Preston) has been cancelled for the foreseeable future.
Thank you for your cooperation and stay safe.
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