CIPD: “How to avoid a £20,000 fine for employing illegal workers.
Employers have a legal duty to prevent illegal working in the UK and avoid unlawful discrimination while doing so. The implications of not checking employees’ right to work can not only be costly and damaging to an organisation’s professional reputation but may also disqualify the business from entering into public procurement contracts.
Both immigration legislation, and the new statutory codes that came into effect on 16 May 2014, set out employers’ legal duty as guidance that companies need to follow when recruiting staff. Organisations trying to operate within the legal framework often come up against the same set of problems when following this guidance:
Q What should I do if my chosen job candidate cannot provide evidence of the right to work?
It is an employer’s responsibility to check that a potential employee has permission to work in the UK. If an employer recruits someone, or continues to employ someone, who fails to provide the requisite documents as evidence of their right to work here, the business may be liable for a civil penalty of up to £20,000. Employers should always give potential employees an opportunity to demonstrate they have the right to work, and keep the job offer open while they do so. However, if the company needs to recruit urgently, it is not obliged to keep the time frame for doing this open ended.
Q What is a ‘statutory excuse’?
A ‘statutory excuse’ protects a business from a potential civil penalty being imposed on the company for employing workers illegally. Companies can obtain a statutory excuse by simply checking their employees’ documents that demonstrate they are allowed to work in the UK. The Home Office has published a list of acceptable documents in ‘An employer’s guide to right to work checks’. This guidance also provides tips on how to conduct these ‘right to work’ checks correctly.
Q What is ‘indefinite leave to remain’?
If employees have indefinite leave to remain (ILR), it means they have no restrictions on their ability to work in the UK. However employers should still request to see their documents confirming their status as detailed in List A of the code of practice for preventing illegal working. Note that an ILR stamp in an expired passport will no longer be accepted, but instead employers should give the employee any opportunity to provide an updated document (for example, a biometric residence permit).
Q How long should I keep right to work documents?
Employers should keep their employees’ right to work documents for the duration of their employment, plus an additional two years after they cease employment with the business.
Q Do I need to check staff recruited via an employment agency?
If an organisation employs staff under a contract of service, and use an employment agency to recruit them, it is the business that will be employing them which is responsible for checking their right to work for the purposes of the immigration rules. Employers cannot delegate the check to the agency and may be liable for a penalty if they do so. If, on the other hand, those recruited are not the company’s employees and are employed by the agency instead, the end-user company will not need to check their right to work. It is good practice, however, to do checks on all employees.
Q Can businesses employ someone claiming asylum?
Asyulm seekers may have permission to work in the UK while their application is pending. Whether this is the case or not this can be verified by an application registration card (ARC) – it will be confirmed on the card if the asylum seeker is permitted to work.
Q Is an employee who’s won an appeal entitled to work here?
Employers should be very cautious if they are told by employees they have won an appeal on a Home Office visa or immigration decision. If necessary, employers should take independent legal advice. If employees have won their appeal, the Home Office will usually grant them leave to stay, however they may still be subject to conditions that prohibit them from undertaking the work the employer is offering. Until an employee can produce valid right to work documents, an employer can use the employer checking service to verify the person’s right to work. This will provide the employer with a statutory excuse for six months from the date of a positive response.