It is a also a criminal offence punishable by up to 5 years imprisonment and/or an unlimited fine, where an employer is deemed to have known or had reasonable cause to believe that they were employing an illegal worker.
Given the consequences, it is crucially important that a zero tolerance approach is adopted and a process is put in place to ensure that you are doing all you can to prevent illegal working, thereby reducing any risk to the business.
Who is an illegal worker?
A person who is subject to immigration control and whose leave to remain is:
- Ceases to have effect
- Subject to a condition preventing the person from working
Excuse from civil penalty
You can prevent illegal working and the consequences of breaching the duty by carrying out legal right to work checks in line with Home Office requirements.
You will not have an excuse to a civil penalty if you have:
- no record of a legal right to work check being undertaken
- accepted a document which does not belong to the person presenting it
- accepted a document and it is reasonably apparent that the document is false
- accepted a document that does not give a right to work
Legal right to work checks
A legal right to work check needs to be done on all employees. You must therefore ask all potential employees for evidence of their right to work before they start working for you.
Some individuals will have a permanent status that permits on-going employment. These workers are only required to produce their original documentation once before the employment commences.
For those who provide you with time-limited permission to work in the UK, you are required to conduct a follow-up check on their right to work before their current permission expires.
How we can assist you
We have a significant amount of experience in this complex area of law. We pride ourselves in being able to put into place processes that are bespoke to each employer to ensure they are workable within the organisation and crucially, protect the business from any risk.
We also offer audit services to test your processes and systems to ensure that they are full proof and able to withstand Home Office scrutiny.
Training can also be provided to ensure your staff are aware of the obligation placed on you and are able to undertake legal right to work checks with confidence.
Online Legal Right to Work Checks
Since January 2019, employers have two options when checking whether an individual has the right to work for them in the UK. Employers can either:
- Check the applicant’s documents in person; or
- Check the applicant’s right to work online.
All employers will be familiar with in person right to work checks; this guide is intended to outline the process for online right to work checks. The system is relatively new and conducted correctly will provide employers with a statutory excuse against a civil penalty in the event that an employee does not have the legal right to work in the UK. It will not be possible to conduct an online check for all employees, as not everyone will have an online immigration status and in this circumstance an in person check will have to be conducted. The online check currently supports individuals who have:-
- A biometric residence permit;
- A biometric residence card; or
- Status issued under the EU Settlement Scheme.
The first step is to ask the individual to share an online code with you to access the service; they should provide you with the ‘share code’ generated by the service. You will need this code together with the individual’s date of birth to conduct the check.
The online right to work checking service can be accessed at: https://www.gov.uk/view-right-to-work
You should then check that the photograph of the individual is the person presenting themselves to work in the UK. You must only employ the person, or continue to employ an existing employee, if you are conducting a follow-up check, if the online check confirms they have the right to work and are not subject to a condition preventing them from doing the work in question.
If the online right to work check does not confirm that the individual has the right to work in the UK and do the work in question, you will not have established a statutory excuse from this check if you proceed to employ them. If you know or have reasonable cause to believe that they do not have the right to work, and employ them anyway, you risk being found guilty of a criminal offence.
The final, and very important step is to retain evidence of the right to work check on your files. This will be the ‘profile’ page confirming the individual’s right to work. You will have the option to print or save this as a PDF or HTML file. The document should then be stored securely (electronically or in printed form) for the duration of employment and two years afterwards.
For more information on how we can support you, contact us today to speak with our specialist team.