In this new series we will be providing guidance and top tips for employers on the key areas of business immigration. In our first article we focus on the commencement of employment and an employer's obligation to carry out right to work checks.

Background

Employers have a duty to prevent illegal working and are required to carry out right to work checks to ensure that those they employ have (throughout their employment) the right to work in the UK.

Carrying out a right to work check correctly is important as it provides employers with a statutory excuse against prosecution for employing an illegal worker. This means if an employer inadvertently employs an individual who does not have the right to work in the UK (for example due to a high quality fraudulent passport being used), they cannot be penalised if the correct right to work check was carried out before employment commenced (and, where required, during employment).

Why is it important to carry out checks correctly?

If an employer employs an illegal worker and a right to work check hasn't been carried out correctly, the business could be fined up to £20,000 per illegal worker. In addition, if the employer is found to have knowingly employed an illegal worker, or if they had reasonable cause to believe an individual is an illegal worker, the employer risks an unlimited fine and up to five years in prison.

In addition to financial and criminal sanctions those with a sponsor licence could have this revoked or those applying in the future could be refused a licence. This would prevent the business from engaging migrant workers from outside of the EEA and impact upon future recruitment plans. The Home Office also publishes a list of illegal working penalties issued to employers, intending to name and shame those caught employing illegal workers.

Who should you check?

Employers should conduct checks on all potential employees and, to avoid discrimination, all applicants must be treated in the same way throughout the recruitment process. Assumptions shouldn't be made about a person's right to work in the UK or immigration status based on nationality, ethnic origin or accent. All employees should be checked before they start work, this could be on the first day of employment, but must be before they carry out any work for the employer.

If an employer uses an agency to recruit an employee or worker and the individual will be directly engaged by the employer (not the agency), then the responsibility for carrying out the right to work check rests with the employer. It is only the agency's responsibility to make the relevant checks when the individual will be employed by the agency.

Right to work checks are simple, yet they are often seen as an inconvenience which can be outsourced to a third party. However, employers must be aware that the Home Office guidance is clear, employers cannot delegate right to work checks to third parties. If they do, they won't have a statutory excuse and will be liable for prosecution if they employ an illegal worker.

How should you check?

1. Obtain the original document(s)

The Home Office guidance 'An employer's guide to right to work checks' sets out an approved list of the documents employers can accept as proof of right to work in the UK. This list is updated occasionally (so it is important to ensure the latest version is being used). Only the documents which are listed can be accepted and will provide the employer with protection.

The list is in two parts, A and B. If an individual produces a list A document, for example a current or expired passport showing the holder is from the EEA or Switzerland, they have the permanent right to work in the UK and only the initial check is required.

If they produce a list B document, such as a current biometric residence permit indicating the person can stay in the UK currently and do the type of work in question, their right to work in the UK is temporary or time limited. Any statutory excuse will expire when the individual's permission to remain in the UK expires and follow-up checks will need to be conducted. Further information on repeat checks can be found in our 2016 article follow-up right to work checks: are you compliant?

The lists differentiate between documents that can be accepted that have expired and those that must be current. Employers should be careful and ensure that they are clear about which rule applies.

2. Check the document(s)

Original documents must be checked in the presence of the person to ensure that the individual is the person pictured and described. This check can either be done in person or by way of live video link.

Employers must also check that expiry dates (where applicable) haven't passed and that there are no restrictions on the type of work that can be undertaken. For example, migrant students are limited on the number hours they can work during term-time and this will be stated in their right to work document.

If there are inconsistencies in the documents provided (or against other documents such as application forms or P45's), steps should be taken to understand the reason for this. For example, if there is a change in surname due to marriage, a copy of the marriage certificate should be retained.

Employers will not be able to rely on a statutory excuse (and could be liable for a civil penalty) if they accept a right to work document where it is reasonably apparent that the document was false. The Home Office don't expect employers to be able to spot a high level forgery, however they'll expect employers to take steps to check the authenticity. Useful guidance is set out in 'An employer's guide to acceptable right to work documents.' This includes checking the overall quality of the document and looking for substituted pages, altered information, typos or blurred/smudged details.

3. Retaining copies of the document(s)

For passports, any page with the document expiry date, the holder's nationality, date of birth, signature, leave expiry date, biometric details, photograph or information confirming the holder has an entitlement to enter/remain in the UK and undertake the work in question must be copied. All other documents must be copied in full (including both sides of a biometric residence permit/card). The date that the check is made must also be recorded on the document itself or in a separate record. We also recommend the name of the person doing the check is noted should any questions arise at a later date about whether the originals have been seen.

Copies can be saved electronically or in hard format, in colour or black and white, but they must be clear. It is also important to ensure that they can be easily located so they can be produced to the Home Office if requested. Copies must be kept for two years after the employment ends. If a clear copy of the document(s) have not been made and retained employers won't have a statutory excuse.

Next steps

Employers should ensure they have a robust process in place for carrying out right to work checks and that those responsible understand the serious consequences of getting it wrong. Training relevant staff regularly is key. It may also be helpful to carry out an audit from time to time to ensure that checks are being carried out correctly. Our business immigration team can help with all aspects of right to work checks, so please speak to your usual contact at Shoosmiths for assistance.

Next time we'll be looking at employing non EEA migrants, including how to carry out the resident labour market test.