Right to Work Checks - are you compliant?
Author: Hayley Gilbert
Applies to: England, Wales and Scotland
Accurate right to work checks are mandatory if employers wish to avoid a financial penalty or, at worst, a prison sentence. Are you getting them right?
Whilst right to work checks are an essential part of the recruitment process, they can often be seen as an inconvenient piece of administration. The task can be delegated to a junior team member who may not understand the importance of getting the check right, and the serious potential ramifications of not doing so. The financial and other penalties for getting right to work checks wrong are severe, and can have longer term implications for employers.
So what does a right to work check involve, what are the penalties for not doing it correctly and why are they so important for employers to get right?
How to carry out a right to work check
Carrying out a right to work check correctly is important because it provides employers with a 'statutory excuse' against prosecution for employing an illegal worker. This means that even if you do inadvertently employ an individual who does not have the right to work in the UK, you cannot be penalised for doing so if you have carried out the correct right to work check before their employment commenced.
The check is simple:
- Obtain the individual's original document(s)
Acceptable documents are contained within the Home Office's guidance on right to work checks, and are updated from time to time, so always ensure that you are looking at the latest version of the guidance.
- Check the document(s) in the presence of the individual
You must physically hold the documents. If the document is false, you will only be liable if it is reasonably apparent that the document is false. Make sure the person in front of you is the person pictured and described in the document.
- Make and retain a clear copy of the document(s), including a record of the date you carried out the check
You can save the documents electronically or in hard copy, in colour or black and white. Just make sure you know where the copies can be found. There is no need to sign the copy. Copies should be kept for two years after the individual's employment ends.
What are the current penalties?
If you are found to be employing an illegal worker, and you have not carried out the correct right to work check, you could be fined up to £20,000 per illegal worker.
If you are found to have knowingly employed an illegal worker, or if you have reasonable cause to believe an individual is an illegal worker, you risk an unlimited fine and up to five years in prison.
Why are right to work checks so important?
The potential consequences for failing to carry out the correct right to work checks go further than the current penalties set out above.
If you sponsor any migrant workers then your sponsor licence could be revoked, which means that those workers cannot continue to work for you. Even if you don't hold a sponsor licence, you may wish to do so in the future. Receiving a civil penalty for not complying with your obligation as an employer to prevent illegal working is likely to negatively affect any future application for a sponsor licence.
You should ensure that your organisation has a robust process in place for carrying out right to work checks and that those responsible understand the potential 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 your organisation is compliant. Our business immigration team can help with all aspects of right to work checks, please speak to your usual contact at Shoosmiths for assistance.
This is the first in a series of three articles about right to work checks. In our next article we explore how to carry out follow up right to work checks and the importance of doing so. Our final article covers how to fairly dismiss an employee where it is suspected that their right to work has expired.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.