Employers should be braced for a fresh round of ‘right to work’ checks and raids by immigration officers, the government has announced. These checks will target the construction, cleaning and care sectors and will begin in the autumn.
Below, we set out a timely reminder of the steps employers must take to avoid sanctions for employing individuals who do not have the right to work in the UK.
Employers will be aware that it is unlawful to employ an individual who does not have the right to work in the UK or who is working in breach of their conditions of stay in the UK.
In order to avoid civil and criminal sanctions, employers need to carry out certain checks before the individual commences employment, and to keep a record of the checks they have carried out. Where an employee has time-limited permission to work in the UK, the employer must also carry out follow-up checks when that permission is due to expire (or after six months where specified documents are relied upon).
Home Office guidance sets out in full the steps that employers will need to take in order to comply with the right to work regime. There is also a checklist explaining the types of documents that are acceptable for checking an employee's right to work and how long the check is valid for.
Under current legislation, employers can face a civil penalty of up to £20,000 per individual they negligently employ without the appropriate right to work. Where an employer knowingly employs such an individual this can result in criminal prosecution. If convicted, employers may receive an unlimited fine or imprisonment of up to six months (or both).
In light of the government's announcement we would encourage all employers, particularly those in the construction, cleaning and care sectors, to ensure that they have carried out all appropriate checks (whilst taking care to avoid liability for race discrimination).
Employers should also be able to demonstrate that that they have appropriate systems in place for record-keeping and follow-up checks.
If concerns arise about an existing employee's right to work in the UK, then, to avoid unfair dismissal liability, the employer should take legal advice before dismissing. This is because any pre-emptive dismissal may be unfair (eg where the employee is able to clarify their right to work). In particular, the employer should not jump to any conclusions about an employee's right to work status. They should instead carry out a reasonable investigation, consult the employee about their concerns and allow the employee the opportunity to comment.
The regime entitling employees to work in the UK is not straightforward, and we would recommend that employers who have any concerns about an employee's right to work in the UK take specialist legal advice. Please contact us if you have any concerns.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at August 2015. Specific advice should be sought for specific cases. For more information see our terms & conditions.