Most employers will be aware of their obligation to check before an individual starts employment that they have the right to work in the UK. They may not be aware that in the 6 months to 31 December 2015, over 1200 penalties were issued against employers for failing to comply with the rules with a gross penalty value in excess of £20 million. From 12 July 2016, a new tougher regime comes into force so there is no room for complacency.
Under the current rules, employers may be liable for a civil penalty or commit a criminal offence:-
- A civil penalty may be imposed if an employer employs someone without the right to undertake the work for which they are employed. The fine can be as much as £20,000 for each individual employed incorrectly. It could also be damaging for your business reputation as The Home Office identifies in a public register the names of those employers to whom a civil penalty has been issued and for how much.
- A criminal offence will be committed if an employer knowingly employs an individual who does not have the right to undertake the work for which they are employed. From 12 July 2016, this offence is amended to include employing an illegal worker in circumstances where the employer had reasonable cause to believe that the employee does not have the appropriate immigration status. This is a much lower threshold and so vigilance is needed to avoid falling foul of the rules.
With this in mind, employers would do well to remind themselves of the rules. Here is a brief summary:-
- Remember to carry out “right to work” checks before an individual starts employment – conducting the checks on the day that they start work will not be sufficient;
- Always request the correct prescribed original documents to establish eligibility to undertake the work on offer;
- Check the authenticity and validity of the original documents in the presence of the employee or prospective employee. You are not expected to be an expert in identifying false documents but you should make reasonable checks to satisfy yourself that the individual is the person named in them;
- Copy and keep the documents securely and record the date of the check and date for follow-up checks;
- Conduct follow-up checks on those who have a time-limited permission to work; and
- Don’t forget to carry out original document checks within 60 days where you acquire employees as a result of a transfer under TUPE.
There is plenty of Government guidance online, such as Right to Work Checks and if you would like to enquire about our free audit of your checking process, please call or email a member of the Employment Team below.