Many retailers and leisure operators employ casual staff from time to time as part of their operations and often these staff can come from outside the UK. This is an update and reminder of UK employers’ duties to prevent illegal working.

The Home Office policy

Employers in the UK have a legal duty to prevent illegal working. The Home Office, therefore, imposes an obligation on employers to carry out right to work checks. A right to work check means that the employer checks a document e.g. passport, visa etc. which is acceptable for showing permission to work.

This must be done in the presence of the holder of the document and before the employer employs them to ensure they are legally allowed to do the work in question. The employers are also required to conduct a follow-up check on people who have time-limited permission to work in the UK.

Checking a person’s documents to determine if they have the right to carry out the type of work that the employer is offering comprises three key steps:

  • obtain the person’s original documents;
  • check them in the presence of the holder; and
  • make and retain a clear copy, and make a record of the date of the check.

If there is a breach

If the employer carries out document checks as above and pursuant to the Home Office published Employers Guide to Right to Work Checks (copy can be provided upon request), they will have a statutory excuse against liability for a civil penalty. This means that if the Home Office finds that they have employed someone who does not have the right to work, but they have correctly conducted document checks as required, they will not receive a civil penalty (see below) for that illegal worker.

If, however, they fail to carry out these checks correctly, or at all, and they are found employing someone illegally, the Home Office will take action against them. They could face a large financial penalty, known as a civil penalty, of up to £20,000 for each illegal worker.

If the UK employer knows that they are employing someone who is not allowed to carry out the work in question, they will not have a statutory excuse, regardless of whether they have conducted document checks.

They will commit a criminal offence if they knowingly employ an illegal worker and may face up to two years’ imprisonment and/or an unlimited fine. The level of the breach and the amount of any civil penalty for which they may be liable will be determined on a case-by-case basis by Home Office officials.