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Right to Work Checks and Dismissals

Avoiding costly fines and possible jail time.

Employers have a legal responsibility to carry out right to work checks at the outset of employment. A right to work check is simply a check to ensure that the job applicant is allowed to work for you in the UK. There are a number of steps which must be taken in order to comply with the immigration requirements and failure to comply can result in

Right to work checks and dismissals

Employers are obliged to ensure that their employees have the right to work in the UK, and undertaking right to work checks can provide employers with a statutory excuse where an employee is later found to be working illegally and can avoid an employer being liable for a penalty.

In summary, a Right to Work Check must be carried out before employment commences and involves:-

  1. A review of the applicant’s original documentation;
  2. A check in front of the applicant to confirm that the documents are valid; and
  3. A copy of the documents being retained along with a record of the date the check was carried out on.

If an employer is found guilty of employing someone who it knew or had ‘reasonable cause to believe’ did not have the right to work in the UK the responsible individual at the employer company could be sent to jail for 5 years and have to pay an unlimited fine.

An employer could also receive a fine of up to £20,000 for each illegal worker if it employs someone who does not have the right to work in the UK and it failed to carry out the correct checks or do them properly. It is therefore important to ensure that an employer is fully aware of the requirements for doing right to work checks correctly.

Dismissals

The requirements under Immigration law do not stop at conducting Right to Work checks at the outset of employment. Employers must maintain evidence throughout an employee’s employment that they continue to have the right to work in the UK. For employees who have temporary visas allowing them to work in the UK it is essential for an employer to implement a monitoring and management system to ensure that it is aware when its employee’s visas will come to an end.

If it becomes apparent that an employee no longer has the right to work in the UK, then that will be a potentially fair reason under the Employment Rights Act 1996 to dismiss them. This would fall under a Some Other Substantial Reason (SOSR) dismissal and it would be deemed to be fair if the employer has a reasonable and genuine belief that the employee no longer has the right to work in the UK.  However, appropriate processes must still be followed.

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