Every employer is aware that it is unlawful to employ someone who does not have the right to carry out the work in question, and employers can be subject to a civil penalty of up to £20,000 per worker for any breach of this.
Avoiding the £20,000 penalty
It is possible to establish a statutory (legal) excuse in respect of such penalties provided that the employer checks the worker’s documents prior to employment commencing, and then repeats the checks for those workers who have time limited permission to work in the UK.
Generally, UK nationals and European Economic Area (EEA) nationals have the automatic right to work in the UK, whereas migrant workers from the rest of the world will need to establish this right to work by showing that they have appropriate permission under one of the tiers of the UK points based system, by way of another form of visa, or under other European Treaty rights.
However, it is important that checks are carried out consistently on all employees and below we detail our top tips on what to do and some potential pitfalls.
Obtain an original of one or more documents listed in the Home Office’s Guidance.
The Home Office has produced a helpful right to work checklist which details those documents that can be relied on.
This list is “non negotiable” and no other documents “will do”. You have been warned!!
Check the document in the presence of the holder.
It is surprising the number of employers who arrange for reception staff or managers to take copies of the document but then in fact pass these copies onto the HR function to validate. This is not strictly compliant. Whoever is in the migrant’s presence when the document is presented should be the person doing the check. HR can of course assist, but the ultimate responsibility lies with this individual, so ensure that he or she has had appropriate training.
- Make a copy
Take a clear copy of the document(s). If the copy is blurred, illegible or has information missing/cut-off the statutory excuse will not be achieved. This sounds obvious but you’d be surprised.
This copy should then be marked as a true copy of the original, clearly signed and dated, and then stored or scanned and filed securely. Beware Biometric Residence Permits (BRP’s). It is mandatory to copy the front and back if the statutory excuse is to be secured.
- Check the documents thoroughly
It is not simply a matter of taking a photocopy. Make sure you check the validity of the documents, for example that the photos are consistent with the actual appearance of the individual and that any stamps/endorsements look genuine.
If you are given a false document, you will only be required to pay a civil penalty if it is reasonably apparent that it is false, and that means it has to be properly checked.
- Specifically check the terms of the visa:
Make sure the job you provide does not break any conditions or restrictions on the type of work an individual can do, or the hours they can work (see below). The terms of the visa or work permission should clearly say what these are. Again, a proper considered check is vital to securing a statutory excuse.
- Beware students:
It is important to be aware that non EEA migrants who come to study in the UK under Tier 4 of the points based system are generally entitled to work for a maximum of either 10 hours or 20 hours per week term time (dependent on the course and the educational establishment), and for any period during vacations and following the end of the course to the expiry of their visas.
Since May 2014 it has been the employer’s responsibility to check the dates of working against the student’s published term time tables. If a student is found to be working over the permitted hours during term time then they will be working unlawfully and you will not have a statutory excuse. That additional extra hour of work could therefore cost the business £20,000 per student, so do be sure to check.
- Beware discrimination claims:
In an attempt to avoid a £20,000 penalty do not then risk a claim of discrimination, which could prove even more costly. Presumptions should not be made about a person’s right to work in the UK based simply on the basis of their background, appearance or accent. As stated, apply the checks consistently to all workers regardless.
- Be mindful of ANY staff that have come TUPE
Yes, that four letter word again. Any employer who “inherits” employees under the Transfer of Undertakings (Protection of Employment) Regulations 2006 would be wise to carry out the right to work checks on all transferring employees if it wishes to be certain it has the statutory excuse.
You have a grace period of 60 days to do this and although you may be able to rely on any checks previously carried out by the transferor, there is no guarantee that these will have been done correctly.
- Don’t risk it:
£20,000 is the fine for unlawfully employing a worker subject to immigration control, if this is by mistake / oversight / incompetence. If you know the migrant does not have permission to carry out the work in question then the penalty is unlimited and the owners of the business can be sent to prison for up to two years, and this is set to rise to five years.
- If you are audited and fail – take urgent advice!
If, for whatever reason, a statutory excuse is not obtained and the employer finds that it has unknowingly employed a worker unlawfully or finds itself the subject of a Home Office audit, or even “raid”, all is not lost. There are still ways in which to seek to avoid or mitigate any civil penalties but in that eventuality it would certainly be sensible to seek urgent professional advice.
If you would like a review of your current employment practices with a particular focus on your starter and leaver processes, contact Amelore for more details.