Are you Up To Date with the Guidance on Right to Work Checks?

Whether you are for or against 'legal' immigration, the issue of illegal immigration is most definitely high on the UK government's agenda.

In August 2023, it was announced that from 2024 the penalties imposed on employers who are found to be employing people who do not have a right to work in the UK would be tripled, in an effort to curb this "black-market" practice and raise the disincentives for people to come to the UK to live and work illegally.

Currently in order to have a legal right to work in the UK you must be a "...British or Irish citizen or have a UK immigration status which permits you to undertake employment".  In some cases the right to work will be subject to conditions such as the number of hours per week that you may work.  The role of employers in monitoring the right to work and any applicable conditions is a crucial one.  Every employer (no matter their size or organisation) has a duty to prevent illegal working.  This translates to employers having to carry out checks on their employees to ensure that they have the right to work, i.e., if the person is not a citizen of the UK or Ireland, they must have the appropriate visas in place for the role that they are being employed for.  It is unlawful to employ someone who does not have the appropriate right or who is in breach of the terms of their visa, and in such cases the employer could face sanctions, including criminal ones.

Tough Penalties for Employers who Breach Guidance:

The ability to work illegally is a key driver of illegal migration, according to the government's guidance.  It leaves people vulnerable to exploitation and results in unscrupulous employers undercutting compliant businesses as well as negatively impacting on the wages of lawful workers.  The practice is linked to labour market abuses such as tax evasion, breach of national minimum wage and exploitative working conditions, including modern slavery in the most serious of cases.

The government is following through with its promise to curb illegal immigration with a raft of increased penalties for employers who fall foul of the guidance.  Where an employer is found to have employed someone without the right to work, the Secretary of State (i.e. the Home Office) will issue the employer with a notice of liability to pay a civil penalty which from 2024 will rise from a maximum of £20,000 per individual found to be employed in breach of the guidance to £60,000 for each individual found not to have the right to work in the UK.  Furthermore, criminal penalties, such as a prison sentence or an unlimited fine could also be applied where it is found that the employer knew or had reasonable cause to know that an individual is an illegal worker.

What does the Guidance Say?

An employer must follow the government's guidance, as set you by the Home Office in its "Employer's Guide to Right to Work Checks" guidance.  The guidance in this area of law is frequently updated, and it is important that employers are aware of the latest guidance at the time when they take on a new worker that proper records are retained to evidence the checks that were carried out.  The checks recommended within the current guidance can be carried out manually or online, depending on the potential employee's permit status.  In summary, to complete the checks manually, the employer must obtain original documents from the Home Office's list of acceptable documents (section 7 of the guidance) and once those are obtained the employer must carry out the following steps:

• Check to the best of their ability that the documents are genuine by checking that names, photographs and dates of birth are consistent across the documents;
• Check the expiry dates for any time limited permission to be in the UK;
• Check any work restrictions to find out if the prospective employee is able to do the work on offer; and
• Copy each document in a format which cannot manually be altered and retain the copy securely on the individual's file.

Employers who are employing an individual with a time limited permission to work in the UK will need to ensure that there is a process in place to request further evidence of a right to work in the UK from that individual prior to the date of expiration of their current visa.

Given how frequently the legislation and guidance in this area of employment law is updated, employers should ensure that they are aware of the latest conditions by regularly reviewing the Home Office guidance.  Click here to view the latest version.

Open to Discrimination?

As well as ensuring that adequate checks are undertaken and the correct documentation is obtained before employing individuals, it is important to ensure that the process and procedures put in place by the employer are not discriminatory in nature.  To put it bluntly, as an employer if you are only asking certain employees who perhaps have a foreign sounding name to prove their right to work you could be open to accusations of discrimination.  Employers must not discriminate against employees or possible employees based on skin colour, or non-traditional British sounding names.  Therefore, whatever procedure is put in place to ensure potential employees do have a right to work in the UK it should apply to the whole workforce regardless of their nationality or race.

If you have any questions on this aspect of law in relation to your transport operation, then please do not hesitate to get in touch.  You can call us on 01279 818280 or click here to send an email.  We are here to help.

(C) Richard Pelly, January 2024