Illegal workers: duty on employers to carry out right to work checks
It is an offence to employ illegal workers and employers must prevent illegal working in the UK by carrying out document checks before employing people to make sure they are allowed to work in the country.
This article examines the Home Office’s updated statutory Code of Practice preventing illegal working, which came into force on 16 May 2014. The new code applies where the person was employed on or after 29 February 2008 and the breach occurred on or after 16 May 2014.
Right to work document list
The Home Office has compiled two lists outlining acceptable documentation an employer should ask for depending on whether the worker has a permanent or temporary right to work in the UK. Acceptable documentation includes:
- National identity card;
- Birth certificate (if the worker has a permanent right to work in the UK);
- Current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question;
- Current residence card; or
- Current biometric immigration document (if the worker has a temporary right to work in the UK).
There are three steps to conducting a right to work check:
- Obtain original versions of one or more of the acceptable documents;
- Check the documents in the presence of the holder of the documents; and
- Make copies of the documents and retain the copies and a record of the date on which the check is made.
All copies of documents taken should be kept securely for the duration of the worker’s employment and for two years afterwards.
Checks on workers with a temporary right to work currently have to be repeated every 12 months. Where the new Code of Practice applies, the requirement to repeat the check will be linked to the expiry of the permission.
Where there is a TUPE transfer, transferees are provided with a grace period of 60 days from the date of the transfer to carry out their first document checks. The current guidance states that the grace period is 28 days.
If the code is breached
If, as an employer, you are found to be employing illegal workers, you will initially be issued with a notice informing you that the details of your case are being referred to Home Office officials. The referral notice will specify the date on which the breach occurred and the possible decision outcome.
Penalty for employing illegal workers
Employing illegal workers now attracts a penalty of up to £20,000. However, the Home Office will consider a variety of factors when deciding what level of penalty to impose, including where the employer is committing an offence for the first time and where it has committed an offence within the previous three years. If an employer is found to be in breach of the code and does not pay the penalty or object or appeal by the specified due dates, enforcement action will be taken.
Eligibility to work in the UK
While the code removes the burden on employers to undertake yearly checks on documents for employees with visas, it is now crucial that employers establish a robust process in obtaining and checking documentation to establish whether a potential worker is eligible to work in the UK. Employers must also now be cautious when employing students to ensure they are only working the permitted number of hours during term time and vacation.
If you require any assistance or further information about the issues in this article, please contact our Employment Law specialists or call us on 0117 904 6000.
Posted on Jun 2nd, 2014 by Lyons Davidson