Employers will be aware of their obligation to ensure their workers have the right to work however the recent case of the Immigration Minister Mark Harper MP (Immigration minister quits over cleaner's visa) shows how easy it is to make a costly mistake in this area by failing to keep copies of documents or by failing to carry out ongoing checks.
In order to fulfil their legal obligation employers need to ensure that they check and take copies of documents showing that workers have the right to work in the UK. However, this practice raises another issue for employers: How to ask workers for proof of their right to work without discriminating against them on the basis of their race or nationality?
To assist employers the Home Office have published a draft code of practice on avoiding unlawful discrimination while preventing illegal working.
The draft code recommends that employers have clear written procedures for recruitment of workers based on equal and fair treatment. It is essential that when recruiting employers ask all candidates for proof of their right to work and do not only ask candidates from ethnic minority backgrounds.
Employers should also retain copies of documents and should ensure that they have robust systems for ensuring they monitor any visa expiry dates and carry out repeat checks on workers' right to work.
Once the code is approved it will have statutory force and may be taken into consideration by courts and tribunals.The Home Office have also introduced a draft code of practice on the civil penalty scheme for employers. This code of practice explains how penalties will be assessed and administered, when employers will not be liable for employing an illegal worker and details how to carry out a right to work check. All employers should familiarise themselves with this guidance to ensure they comply with their legal obligation to prevent illegal working."