There have been some recent changes in respect of preventing illegal working in the UK– are you up to date with these changes? Do you really know what the law says and what you actually need to do to protect your business? Please do read on as we had too many clients last year getting fines and other penalties as a result of their managers or recruiters not being as knowledgeable or on the ball as they need to be to protect the organisation.
First things first
You cannot employ anyone, even in a voluntary capacity, if they do not have the right to work in the UK. Equally you cannot employ anyone for hours that exceed the permitted hours set out in their visa e.g. students.
It is your duty as an employer to ensure those you employ have the right to work. There is no legal requirement on the employee to inform you if you are allowing them to work beyond the terms of their visa. The responsibility to check and manage your workers is yours!
Penalties for getting this wrong are really steep so don’t be the one to mess it up!
- Failing to carry out document and right to work checks: £20,000 potential fine.
- Employing someone who does not have the right to work: unlimited fine plus up to 5 years in prison.
Note: You do not have a responsibility to check the Right to Work Status of any one you provide work to on a self-employed basis but proceed with caution. We see far too many blurred lines between employed and self-employed status and so we recommend that you seek advice on this to ensure that you are setting up the relationship and maintaining it in a way that ensures self-employed status.
Conducting Right to Work Checks
Whilst Right to Work checks are mostly done manually, for some employers, since January 2019 they can either conduct a manual Right to Work check, or an online Right to Work check. This check, whether manual or online is in order to establish a statutory excuse against a civil penalty in the event that the employee is found to be working illegally.
Even where online checks are possible it should be remembered that not all employees (or prospective employees) will have an immigration status that can be checked online.
What’s the Statutory Excuse?
If you conduct a manual or online check, then you will have established a statutory excuse, should it be found at a later stage that the person was in fact illegally working and you will not be liable for a civil penalty.
Of course, keeping really good records of such checks is a given if you are to properly protect the business. Ideally, if you are in a smaller business, don’t allow such records to be the domain of just one person and kept in a place no one knows about or can easily access. Ensure that several people know where records are filed and that such records are readily accessible in the event of any visits by Immigration Officials.
Manual ‘right to work’ checks
1. Obtain the original acceptable documents as detailed in the Home Office Illegal Working Code of Practice. Here is a link to the documents you might accept although typically you are looking for documents such as passport, immigration status documents, biometric residence permits etc.
2. Check that they are genuine. This might feel uncomfortable or not in line with how you manage your staff, questioning them in such depth, but it is absolutely essential that you check, as carefully as you can, that the documents they have submitted are genuine. Check:
- That the person presenting them is the rightful holder (i.e. the photos and date of birth is consistent with the person’s appearance and that they are consistent across documents
- That the expiry dates have not passed
- That it is indicated in the document that the person is allowed to undertake the type or amount of work you are offering them (check the work restrictions e.g. students may have restricted hours)
- That the documents look genuine and haven’t been tampered with and if you are concerned about any documents for example if you think they may be fake, call the Home Office Employer Enquiry helpline on 0300 123 5434.
- If you notice different names across different documents, ask what the reason for that is and ask for supporting documentation as necessary (e.g. marriage certificates, divorce decree, deed poll).
- If you are unsure about whether a document is genuine then call.
3. Make a copy of each document (either electronic or a hard copy is fine although it must be in a format that cannot be altered at a later stage.)
4. A record should be made to confirm the date the check was conducted, who conducted it and a description of the documents checked.
5. You should also keep a good log of the end dates of any work permits or similar as it is not sufficient to ensure right to work at the start of employment, but that right to work is still in place throughout the contract. Keep your log up to date and ask for up to date documents demonstrating right to work ahead of any right to work expiry. You cannot allow them to work for even one day after expiration of their right to work, so keep on top of this.
The Home Office recommends that documents you have checked and copied are kept for the duration of the person’s employment and for two years afterwards.
Note: Despite doing manual checks there is no harm in doing a visual check too of the actual person when they turn up to work – we have come across cases where the documents check out but a different person turns up to do the work – in this case you may well be providing work to someone who does not have the right to work! Be careful.
Online ‘Right to Work’ checks
From January 2019, certain employers can also establish a statutory excuse by conducting an online Right to Work check. This is a checking service offered by the Home Office. However, bear in mind that not all employees, or prospective employees will have an immigration status that can be checked online.
In order to use the online right to work checking service, you will need to:
6. Access the employer page on gov.uk and go to ‘view a job applicant’s right to work details’.
7. In order to access the service you will need their date of birth and their right to work share code.
8. The online check will tell you the types of work they are allowed to do and how long they can work in the UK if there’s a time limit.
9. You will need to check that the online photograph matches the individual presenting themselves for work.
10. Keep a copy of the response provided by the online Right to Work check (storing the information either electronically or as a hard copy) for the duration of their employment and for two years afterwards.
If the online check confirms that they do not have the right to work in the UK, you will not have the statutory excuse and will need to need to take appropriate to either dismiss the individual or withdraw the offer of employment.
Alternatively, if you are unable to carry out the online check because the person has an outstanding application, appeal or administrative review with the Home Office, then you will need to contact the Employer Checking Service. A positive notice from the Employer Checking Service will provide you with a statutory excuse for 6 months, after which you will need to conduct a follow up check on its expiry.
What’s the risk of employing someone illegally?
We gave the headlines earlier, but if you are interested in a bit more of the detail…if you are found to be employing someone illegally and haven’t carried out the requisite checks, you risk:
- A civil penalty of up to £20,000 per worker (although this is issued on a case by case basis and will be reduced depending on whether you have been found to be employing illegal workers in the past three years, whether you had reported the illegal workers, if you actively co-operated and if you have any evidence of right to work checking practices).
- In serious cases a criminal conviction and a prison sentence of up to 5 years and an unlimited fine.
- Closure of the business and a compliance order issued by the Court.
- Disqualification as a Director.
- Losing the ability to sponsor migrants.
- Seizure of the earnings made as a result of the illegal working, and
- If you are in the alcohol/late night refreshment sector/private hire vehicle/taxi sector, review and possible revocation of a licence.
As an employer you are liable for the penalty, even if the check was (or wasn’t) completed by a member of staff, or by a third party (e.g. recruitment agency).
Workers and the Self Employed
As well as checking your employees, even if you are not the direct employer of various individuals, we recommend that your directors consider what risk is posed if you don’t check the Right to Work status of your workers (i.e. associates, self employed contractors, agency workers etc). The risk will be different (negligible to moderate to high) for different businesses given who actually makes up your ‘peripheral’ workforce.
In theory you don’t have to check their Right to Work but if by any chance a self employed worker is later established to in fact be an ‘employee’, then you will have exposed yourself to significant financial risk by not checking their documents when they first started delivering a service to you.
Here are our top tips to help you stay within the law:
Time limits and Risk management
- If you are acquiring staff as a result of a TUPE transfer, you have a grace period of 60 days from the date of the transfer to ensure that you have completed the checks for the new employees.
- Dismiss from employment any employee who has got to the end date for working as specified in their passport on the basis that it is now unlawful for you to employ them. Also, ensure that any such dismissals take place early enough otherwise you will be having to pay notice in lieu to an employee who can legally no longer work for you, rather than being able to ask them to work their notice.
- If someone advises you that there is a delay in their right to work paperwork but you should have it within a few weeks, contact the Home Office for advice. If you choose to take a risk and continue employing them that is entirely your choice, but in the absence of any other information from the Home Office, we would usually recommend you dismiss them as above, but advise them to reapply to you once they have the correct paperwork.
Remember that if you have students who have limited permission to work during term times, you must also obtain, copy and keep details of their academic term and vacation times covering the duration of their study in the UK.
Avoid Discrimination and other legal issues
- Remember that it is unlawful to discriminate against someone because of their age, disability, race, ethnicity or nationality, so make sure that your recruitment and selection procedures result in equal treatment of all applicants.
- In all of this, please don’t forget your responsibilities under GDPR (data protection) legislation as you’re collecting and holding a lot of personal information.
Information audits and management
- Conduct an employee audit to ascertain who you already have on the books who is operating under a work permit – remember to include all zero hours and bank staff. Consider the documentation you have from other workers e.g. contractors, agency workers etc.
- Ensure that you have an administration system set up that allows you to log all the return to work checks and ensures that you know when to conduct follow up right to work checks with those employees who are coming to the end of the period during which they can legally work.
- Identify in your organisation any ‘black holes’ that may exist e.g. managers who you know will not check documentation, remote workers who are difficult to manage from an admin point of view, third parties who undertake the checks for you. Take appropriate steps to ensure that these ‘black holes’ do not unwittingly expose your organisation.
If it’s all feeling a bit much, Jaluch…
1. Can run Right to Work workshops for your supervisors, managers and HR team.
2. Can carry out an audit for you to ensure you have done what you need to do in respect of right to work checking.
3. Carry out a wider HR audit to check you have your bases covered and identify any black holes.
4. Create documents and document processes to ensure you are as protected as you can be when recruiting and document checking.
5. Dismiss any employees who no longer have the Right to Work.
6. Deliver training in Diversity and Inclusion, Unconscious Bias, Gender Intelligence to help you avoid discrimination claims and unnecessary grievances.
7. Can create eLearning for your managers on topics such as document checking, recruitment best practice etc. so you can easily train both existing supervisors and managers up and also any newly appointed members of staff as it’s the new employees who sometimes trip you up.
8. Provide template employment documents including contracts, policies and an employee handbook.
Our style when giving advice or delivering training is down to earth, plain English, we try never to scare monger, and above all we get how hard it is to manage staff in these very legally challenging times. Everyone can make a mistake, anyone can have a gap in their knowledge, we’re here to support with a friendly face and a no nonsense approach – no contract required as Pay as you Go is one of our payment options!
More information needed?
Visit Gov.uk and read Right to Work checks
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The information contained within this article is for general guidance only and represents our understanding of employment and associated law and employee relations issues as at the date of publication. Jaluch Limited, or any of its directors or employees, cannot be held responsible for any action or inaction taken in reliance upon the contents. Specific advice should be sought on all individual matters.