All businesses are legally required to verify that all of their employees have the right to work in the UK. However this process is not always straightforward and what may seem a small error can have huge consequences for a business. Any business found to have failed to comply with this obligation face fines of up to £15,000 for each worker (for its first offence) and £20,000 for each worker thereafter. Businesses can also be "named and shamed" by the Home Office leading to negative publicity and there can be additional consequences for employers who hold Home Office sponsor licences.
Carrying out a right to work check.
It has been necessary to carry out right to work checks for all new employees starting on or after 29 February 2008. Individuals who were already employed, and have been continuously employed since that date are not subject to verification and a business cannot be fined if they are found to be working illegally.
It is essential that this check is carried out before an individual begins work, and for this reason all job offers should be made subject to the "Applicant demonstrating they hold the right to work in the UK". Particular care needs to be taken when potential employees are given a trial period, as the Government will consider this to be employment and therefore subject to a right to work check. A recent situation encountered was where an employer offered an individual a two day trial period and at the end of the two days it did not offer any further employment. Several months later the business was inspected by the Home Office and was fined £15,000 as the individual did not have the right to work at the time of their trial period.
The requirement to check if someone holds the right to work in the UK applies to all new employees, regardless of nationality. In order to avoid potential discrimination claims it is important that businesses do not make assumptions based on applicant's colour, nationality, ethnic or national origins, accent or length of time they have lived in the UK.
Every business should have a policy for checking employees have the right to work, and should ensure that this is applied and monitored by senior staff who have received appropriate training. There are 3 stages to carrying out a successful right to work check:
- Obtaining evidence - It is important that an individual provides an original document to demonstrate their right to work. In many cases this is likely to be their passport but other documents can be accepted in limited circumstances, i.e. a biometric residence card issued by the Home Office can be accepted if it confirms someone holds indefinite leave to remain. It is important to note that the fact someone has a National Insurance number or a UK birth certificate does not mean that they automatically have the right to work and further evidence may be required.
- Checking documents - This might seem obvious but an employer needs to examine the documents and ensure they look genuine. An employer is expected to check that photographs, names and dates of birth match the information provided by the prospective employee and there are no obvious signs of tampering. Fortunately, employers are not expected to become experts in identifying forged documents and if a document looks genuine an employer will be given the benefit of the doubt, but they are expected to notice and question any obvious inconsistencies or flaws.
- Keep a copy of the document - Not complying with this stage can have significant consequences for a business. If the employer does not retain a clear copy of the document then the check has not been carried out successfully. Best practice is for the person carrying out the check to sign and date the copy before storing it securely. The importance of this is demonstrated by the case of the former Immigration Minister, Mark Harper MP, who resigned after he became aware that one of his employees did not have the right to work, and he had lost his copy of the evidence he had seen when carrying out the initial verification.
When carrying out a check it is important to record any restrictions on someone's visa and ensure that these are complied with. An example of this is that holders of some student visas cannot work for more than 20 hours per week with any breaches for this being the justifying enforcement action.
Not only is it important for an employer to carry out the initial check correctly, but it is also vital that it identifies if and when a follow-up check is required and diarise accordingly. If this action is not taken then an employer will expose themselves to the risk of employing someone after visa expiry. The following table helps demonstrate that whether a follow up check is required will depend on what document is provided to demonstrate someone's right to work:
Follow up check needed after 6 months
Follow up check needed after 6 months
Follow up check needed at end of visa
|A UK or EEA passport||Certificate of Application issued by the Home Office||Passport or biometric card showing time limited visa|
|Biometric Residence Card confirming grant of indefinite leave to remain||Positive Verification Notice from the Home Office||Residence car issued to the family member of an EEA national|
|EEA Registration or Permanent Residence Certificate|
|A current passport confirming exemption from immigration control|
Even if an employer adopts a robust right to work procedure there are a number of potential issues of which they should be aware. A common query encountered is the issue of sub-contractors. Under existing legislation a business is not liable if it contracts with another company, and that sub-contractor employs someone illegally. However in assessing who is liable for any breaches of right to work procedures, the Home Office can apply a similar test to HMRC and argue that a sub-contractors' employee is actually employed by the main business. To minimise this risk businesses may wish to consider adding terms relating to verifying the right to work to any contracts and making provisions for sub-contractors to indemnify them for losses.
Another common issue is where an employee, or potential employee, is unable to produce a visa because of an application pending with the Home Office. Under UK immigration laws anyone who submits an application for further leave, before the expiry of their visa, will retain the same rights and entitlements while their application is processed. This can often take several months to resolve and can be even longer if an appeal is necessary. During this period businesses can protect themselves by carrying out a verification check with the Home Office's Employers Checking Service (ECS). If the ECS verifies someone has the right to employment then the business can employ them for 6 months from the date of that letter but must carry out a repeat check if alternative evidence has not been provided by the end of that period.
A final issue that business should be aware of is non EEA nationals who are married to an EEA national. In these circumstances the non EEA national may be automatically entitled to work, but may not be able to produce evidence of this. On the one hand the non EEA national may be reluctant to go to the expense of obtaining confirmation of right to work from the Home Office and on the other the business should be aware that unless it is provided with a copy of a residence card confirming the individual has the right to work then they will have no statutory defence to any Home Office enforcement action if the person is found to be working illegally.
What should businesses do?
In light of the approach set out by the Home Office businesses should be reviewing their right to work procedures and records to minimise the risk of facing enforcement action. By instructing audits, either internally or through an independent advisor, businesses can identify any issues, rectify them and potentially avoid or reduce the level of any fine imposed, thus allowing them to make significant savings.
If an audit uncovers a potential problem then a business can mitigate the damage by reporting this to the Home Office, as this can result in any fine being reduced by £5,000. A further £5,000 reduction is available where the business has robust procedures in place for verifying the right to work, which further emphasises the importance of implementing a right to work policy.
Verifying that someone has the right to work is not always straightforward and while the Home Office may be targeting "rogue" employers, many employers with good intentions and strong procedures have fallen foul of legislation in recent years. The Home Office announcement should serve as a warning to all within the industry that this is an issue which must be taken seriously.