16 July 2021
All employers have a responsibility to check the right to work of their employees.
If you know or have reasonable cause to believe you are employing an illegal worker, you will be committing a criminal offence (that carries a maximum sentence of five years’ imprisonment) and will be subject to a civil penalty (up to £20,000 per illegal worker).
Your company can also be publicly named and shamed.
However, employers have a statutory defence against the civil penalty (although not the criminal charge) if they:
i. check and retain copies of specified documents evidencing an employee’s right to work on or before the first day of employment; and
ii. for those with temporary immigration permission, undertake follow-up checks on the expiry of immigration permission.
The key points for employers to remember are as follows:
- Make sure your right to work process and policy is documented
- Make sure that all job offers are conditional on a successful right to work check
- Make sure that when carrying out the document check, a record of the date on which the check took place is retained
- Make it a contractual obligation that any employee with an immigration status in the UK should inform you of any changes which might affect that immigration status
- If an employee does not have the right to work, it should be a contractual term that their employment will be summarily terminated
- Make sure that you keep right to work checks for the duration of an employee’s employment and for two years after they stop being an employee
- You need to carry out checks on any employees who work for you as a result of an acquisition or outsourcing
Who needs a right of work check?
All employees, regardless of nationality, require a right of work check.
An employee means someone who is employed under a contract of employment, service, or apprenticeship. The contract of employment can be express or implied, oral or in writing.
This does not apply to agency workers where the agency or service provider is the employer. In such instances, it is for the agency to conduct the right to work check although, to minimise reputational risk, you should always ensure that your agencies or service providers are aware of their duties by asking to see their right to work policies.
When should the checks be completed?
All checks should be completed before employment commences. This can be on the first day or as part of the onboarding process and should be the first thing an employer does.
Alternatively, employers could check a prospective employee’s right to work status at interview, although it is important that everyone is checked to avoid any potential issues of discrimination.
As part of the checking process, make sure any expiry dates are written down and ensure that any new checks are carried out as necessary.
The right to work process
There are two methods of checking an employee’s right to work: (i) a physical check; and (ii) an online check.
You should check the original documents in the presence of the employee on or before the first day of employment.
You should ensure that the information on the documents is accurate and that it matches what is said on, say, the employee’s CV.
You need to make sure you take a signed and dated copy for your records (which can be dated and stored electronically) – the date, or lack of a date, is the most common reason why right to work checks fail.
Note, however, that temporary Covid concessions allow you to perform the check over a video call (and provide the employer with a temporary statutory defence) although you must see the original documents once the restrictions are over.
These can be used where the employee has a Biometric Residence Permit (BPR) or has been granted an immigration status under the EU Settlement Scheme (i.e., they have pre-settled status or settled status). The process is as follows:
i. The applicant completes their form which can be found at https://www.gov.uk/prove-right-to-work. This generates a right to work code.
ii. The employer, using the applicant’s date of birth and the right to work code, then completes a form which can be found at https://www.gov.uk/view-right-to-work.
iii. The system will then inform you whether or not the applicant has the right to work and any conditions (you will see a picture of the applicant, any conditions and the expiry date of those conditions).
iv. Employers need to keep a screen shot of the online check on their HR system and re-do the check when necessary.
The online check will be the only way an EEA national’s right to work from 1 January 2021 as the Status Outcome Letter from the EU Settlement Scheme is not proof of a right to work. It is important to note that it is not necessary to re-do right to work checks of EEA nationals who started their employment before 31 December 2020.
What documents should I check?
The documents you should be checking depend on the nationality of the employee.
|BRITISH/IRISH||EEA/SWISS NATIONALS||NON-EEA NATIONALS|
|Passport (which can be expired); or||Until 1 July 2021 – passport or national ID card||Immigration status document (e.g. Biometric Residence permit); or|
|Birth certificate and an official document with NI number (P45 etc)||After 1 July 2021 – online check||Online check|
Which documents are acceptable?
Acceptable documents can be split into three different types:
i. List A – which provide the employer with an unlimited statutory defence;
ii. List B1 – which provide the employer with a statutory defence until the expiry date of the document; and
iii. List B2 – which provide the employer with a statutory defence for six months.
|LIST A||LIST B1||LIST B2|
|British/Irish passport (which can be expired); or||A current work permit in a current passport which allows the work in question; or||An Application Registration Card issued by the Home Office stating that the named person is permitted to take the employment in question, together with a Positive Verification Notice from the Home Office Employment Checking Service; or|
|UK birth certificate together with an official document with NI number and name issued by government agency or previous employer (P45 or P60); or||A current immigration status document with a photo which allows the work in question together with an official document with their National Insurance number and their name issued by government agency or previous employer (P45 or P60)||A Positive Verification Notice from the Home Office Employment Checking Service to the employer or prospective employer which indicates that the named person may stay in the UK and is permitted to do the work in question.|
|Certificate of naturalisation or registration together with an official document with NI number and name issued by government agency or previous employer; or|
|An EEA passport or national ID if the employment commenced before 31 December 2020 (does not have to be valid or current); or|
|A Biometric Residence Permit indicating settlement, indefinite leave to remain or no time limit (but check BRP is current and has not expired)|
What if an employee cannot provide documents?
If an employee cannot provide documents, you should use the Employer Checking Service. This is not the same as an online check. The Employer Checking Service is used when a migrant cannot present an original document or online check code because an application is pending with the Home Office.
After gaining the migrant’s consent to do so, you can file a request for the Home Office to check their records via the following online form: https://www.gov.uk/employee-immigration-employment-status.
The Home Office will (hopefully) confirm that an application is pending and provide you with a statutory defence for six months. If a decision has not been made on the application after six months, you should resubmit the request to the Employer Checking Service.
The Home Office works with HMRC and tip-offs from the public to detect illegal working.
The first step will usually be a letter or email from the Home Office requesting information about a particular employee and asking you for a copy of your right to work check.
The Home Office will then consider your response and inform you that the employee is either legally or illegally working.
If illegally working, you will be expected to terminate their employment immediately (suspension with or without pay is not enough).
If your right to work check did not establish a statutory defence, the Home Office will issue a civil penalty.
Calculation of the penalty
The starting figure is £20,000 per illegal employee. Any mitigating factors are then applied:
i. First penalty in three years – less £5,000
ii. Self-reported illegal working – less £5,000
iii. Evidence of active cooperation – less £5,000
First-time offences may just get a warning if the employer self-reported, actively cooperated and has effective policies in place.
Right to work checks and TUPE
The benefit of right to work checks passes to the new employer where TUPE applies.
If right to work checks have not been done or are defective, the new employer must carry out a document check within 60 days from the date of transfer to have a statutory defence.
We therefore highly recommend that as part of any TUPE process and/ or due diligence process for a corporate transaction which involves employees, you check whether or not proper checks have been carried out.
If they have not been, you need to ensure that the relevant checks have taken place.
The Home Office publishes a useful right to work checklist for employers. This can be found by clicking here.
If you have any enquiries about this or any other employment law matters, please contact Gill Brown or Jacqueline Kendal in our Employment Law Team:
Alternatively, click here to go to our contact page.
This article is current at the date of publication set out above and is for reference purposes only. It does not constitute legal advice and should not be relied on as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.
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