If you’re an employer in the UK, it’s your legal duty to prevent illegal working, regardless of the number of employees you employ. The ramifications of not checking employees’ right to work can be costly and damaging.
The law on preventing illegal working is part of the Immigration, Asylum and Nationality Act 2006. The Government has since introduced a statutory code and amended the legislation to strengthen the civil penalties that you as an employer may be liable to.
The legal duty that an employer must follow begins before an individual is recruited. Any employer who employs someone they know or has reasonable cause to believe has no right to work in the UK is committing an offence. The civil penalty can be up to £20,000 per illegal worker and in some circumstances, a prison sentence of up to 5 years.
So what do you need to do as an employer to protect yourself?
As part of your recruitment process, it’s your responsibility to ask the individual to provide documentary evidence of their right to work in the UK. The Home Office has published a list of acceptable documents in ‘An employer’s guide to right to work checks’. This guidance also provides tips on how to conduct these ‘right to work’ checks correctly. The document the individual needs to provide may be as straightforward as a valid passport.
What steps do I need to take?
You should check the original document(s) in the presence of the holder, make and retain a clear copy and make a record of the date of the check. The Home Office have a checklist that can be completed with each of these steps. This process then forms a ‘statutory excuse’, which may help your defence if a worker is found to be illegal.
If the employee’s right to work in the UK is time limited, you must repeat the checks in line with the guidance.
Which employees should I check?
Checks should be conducted for all new employees and you should not make any assumptions about an individual’s background or work status. There may be different rules that apply to existing employees who started before May 2014. In these circumstances, it’s best to seek advice.
It’s worth noting that if you have employed the individual through a third party recruiter or if you have new employees as a result of a TUPE transfer from another business – you must still complete the required checks.
If in doubt always seek advice or clarification from the Home Office.