Government presses ahead with its crackdown on employment of illegal migrant workers
All employers are under a legal duty to prevent illegal working within their businesses and must conduct certain right-to-work document checks before an individual actually commences employment.
Whilst it is common for employers to ask new recruits to bring their passport or other right-to-work documents with them on their first day of work, this will now not be enough to establish a statutory defence and so avoid a civil penalty.
It is therefore a good idea to specify that the offer of an employment contract is conditional on the employee having the right to work and being able to provide evidence of that request. If an employer inherits employees from another organisation, for example on an outsourcing, or the purchase of a business, it also has a grace period of 60 days to carry out “right to work” document checks.
The costs of getting this wrong are significant. The recently introduced Immigration Act 2014 increased the maximum civil penalty for employing a worker who does not have the right to work in the UK from £10,000 to £20,000 for every illegal worker employed.
In the event of incurring a civil penalty, employers also face the (unquantifiable) cost to the reputation of the business being publicly “named and shamed” by the Home Office. Worse, if an employer knowingly employs an individual illegally, the directors or managers may find themselves facing criminal conviction, a fine or even jail.
So how do employers protect themselves from falling foul of the law?
Request Original Documents Proving Eligibility To Work In The UK
The documents required will depend on the individual, whether they are subject to UK immigration controls, and what level of permission they have to work in the UK. Besides British citizens, nationals of the European Economic Area and those with indefinite leave to remain in the UK may work freely.
Home Office guidance sets out the documents an employer needs to see, which include a valid and current passport, birth certificate, and travel documents such a biometric residence permit.
Employers need to be aware of documents that are not acceptable, for example, National Insurance number cards, driving licences and utility bills. Employers are advised to request “right to work” documents from all individuals but must be careful not to target specific groups of employees, because, for example, they have foreign sounding names or accents, otherwise they may find themselves facing a claim in the Employment Tribunal for unlawful discrimination on the grounds of race or nationality.
Check Validity Of Original Documents
It is important employers take time to look at the documents and be satisfied that each one is genuine. Employers are not expected to be able to detect a false document unless it is reasonably apparent that the document is a fake but they should at least check the photographs and the expiry dates of any UK visas.
Where an individual is on a visa with limited leave to remain, employers should ensure that they have a reliable diary system to warn when a visa is due to expire, and to repeat document checks as required.
Retain Copies Of Original Documents & Record The Date
Copies of the original documents should be kept on the individual’s personnel file for at least two years after employment ends, in manual or electronic format- but they should be easily retrievable for inspection by a Home Office official if needed.
Question: Who is responsible for checking the right to work of agency staff or sub-contractors?
Businesses are only liable in respect of individuals engaged under a contract of employment, and not for independent contractors, sub-contractors, or employees of a third-party labour supplier. However, in practice, it is not always easy to identify who the employer is, especially if recruitment has been outsourced.
It is therefore wise that businesses train staff to ensure the right checks are made at the right time on individuals working on all sites, or that the labour supplier can warrant that the relevant checks have been done and agree to take responsibility for any costs resulting from enforcement action.
The increase in the civil penalty has raised the stakes for employers and there is still more regulation to come - but by putting proper procedures in place, employers can reduce the risk of incurring significant civil financial penalties.