Every employer in the UK has a responsibility to prevent illegal working.
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.
An employer needs to carry out certain checks, before an individual commences employment, and to keep a record of the checks it has carried out.
The checks must be carried out before an individual starts working for you.
To avoid any potential discrimination claims, you must undertake document checks for all workers, irrespective of whether you know them to be British.
Under the relevant legislation, an employer who employs illegal workers, may be liable to a civil penalty or commit a criminal offence:
A civil penalty of up to £20,000 per illegal worker may be imposed if an employer negligently employs someone without the right to undertake the work for which they are employed.
A criminal offence will be committed if an employer knowingly employs an individual who does not have the right to undertake the work for which they are employed. On summary conviction, an employer may receive an unlimited fine or imprisonment of up to 5 years (or both).
If there are no restrictions on an individual’s right to work in the UK, then you do not need to undertake further checks during the course of their employment.
An employer is excused from paying a civil penalty (known as the “statutory excuse”) if it can show that it has complied with any prescribed requirements in relation to the employment of an individual.
Right to work checks can be achieved by undertaking a series of specified steps:
If the individual is subject to restrictions and/or the document they present has an expiry date, you must make a note of this date and undertake a new document check on or before the relevant date in the future. You must retain documents during the course of each individuals’ employment and for 2 years after they have stopped working for you.
UK Visas and Immigration (UKVIS) has published 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 (see HERE).
There is also an online interactive tool which can be used to check which types of document give someone the right to work in the UK and what a right to work check involves for each of them (you can find this HERE). The employer must check the validity of the original documents and satisfy itself that the individual is the person named in them.
If you employ students, you need to check the working time restrictions on their visa and you will need to obtain a print-out of the semester timetable from the institution as some students are able to work full-time during their holiday periods.
Where an employee or potential employee has made an application to UKVIS to remain in the UK beyond the expiry date of their current permission or provides a copy of a Certificate of Application (or if you are in doubt as to whether the individual is eligible to work), you need to carry out an additional check by using the Employer Checking Service (see HERE).
Due to COVID-19 there are temporary changes to the way you can check documents. You can find guidance about the adjusted process HERE, in short:
Disclaimer: This note does not contain a full statement of the law and it does not constitute legal advice. Please seek legal advice if you have any questions about the information set out above.
Copyright © 2013 - Oury Clark.