Recruitment Matters – Illegal Working and the importance of Right to work checks

Entry Level Jobs

With more than 26% of its workforce[1] made up of foreign born workers, the Hospitality Industry relies on migrant workers perhaps more than any other sector. Whilst the diversity of the workforce no doubt enriches the industry and provides excellent recruitment opportunities for employers it carries with it an increased risk of employers falling foul of “right to work” legislation and facing potential hefty penalties.

Where a business is found to be employing a worker illegally they may face a civil penalty of up to £20,000 per illegal employee. Criminal sanctions can also apply in circumstances where the employer knows that it is employing an individual without the necessary permission but carries on regardless. There also inevitably follows adverse media publicity, damage to business reputation and for those employers who are licensed sponsors (i.e who employ other migrants on employer- linked visas), the risk of losing the sponsor licence and sponsored highly skilled staff.

Employers can avoid the civil penalty if they can demonstrate that they carried out checks on the employee’s documents before they started work. This defence applies only if they are checked BEFORE employment commences, not on the first day.

 

Who should you conduct checks on?

In order to avoid accusations of discrimination, right to work checks should be made on all potential employees. You should not make assumptions about a person’s right to work in the UK or their immigration status on the basis of their colour, nationality, ethnic origin or accent. The policy should be enforced across the board.

 

So what do you check?

Most workers will be able to produce a passport issued by the UK or a country within the European Economic Area which will evidence the individual’s entitlement to work in the UK. There are a number of other immigration status documents that will be acceptable if they cannot produce this such as a registration certificate or residence card. These documents give the holder a permanent and unrestricted right to work in the UK. Once you have seen an original document, you should photocopy the document and retain on the individual’s personnel file a record of having completed the check.

If an individual cannot produce the above documents it is likely that they will have a temporary permission to work in the UK (for example a time limited visa), you will need to take a copy of the visa and other various documents (depending on the type of visa they have) and diarise to recheck that the individual has applied to extend their visa before the expiration of their current visa.

 

How do you perform the check?

The Home Office do not expect employers to be experts in identifying fraudulent documents, but it is important that you take reasonable steps to satisfy yourself of the authenticity of the paperwork provided to you. For example does the new recruit look like his passport photo? Are the official watermarks present? Does the document look like it has been tampered with? If you have any doubts in relation to the authenticity of the document you can ask the Home Office’s document checking service for assistance.

Staff involved in recruitment should be trained on how to conduct checks and you should ensure that you have an adequate system in place to ensure that checks are carried out before commencement of employment and before any temporary permissions expire.

 

What about employing students?

Individuals who have entered the UK on student visas are only permitted to work part time during term time ( the number of hours permitted will be set out in the passport or Biometric Residence Permit). In order to satisfy yourself that any student workers are not in breach of their visa conditions you should request a copy of their student timetable to ensure that you are aware of their academic term and holiday dates. They will be permitted to work for you full time during holiday dates.

 

And finally…

It is prudent to ensure that all offers of employment should be made subject to provision of satisfactory evidence of right to work in the UK.

If your organisation’s checking procedures have been less than comprehensive, it is important that you carry out an audit as soon as possible. If the Home Office discover that you have illegal workers before you do… it’s too late!

For further information contact the author, Claire Taylor Evans, a senior associate in Boyes Turner’s Employment Team, and a specialist in business immigration law.

 

Checkbox

  • Remember to check before the employee starts work
  • An EEA passport is valid proof of the ability to work in the UK. If the applicant cannot produce this there may be other documents they can produce
  • If the applicant cannot provide these documents, they will normally have a time limited right to stay and work in the UK.
  • If the potential recruit has a student visa they can only work part time during term time. Outside of term time they can work full time
  • The rules apply to all employees - including part-time workers and those on zero-hours contracts

 

[1] Labour Force Survey 2013

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