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07th August 2016

The Importance of Conducting Right to Work Checks

Recent immigration raids by Home Office officials at Byron Burger restaurants across London, which resulted in the detention of 35 individuals, have brought an employer’s duty to complete Right to Work checks to the fore once again.

It is reported that Byron will not face any action following on from the raids as they were able to evidence that they had performed the requisite checks; it has been suggested that fraudulent documents were produced by the employees to the Company as part of those checks.

Employers have a duty to prevent illegal working in the UK by carrying out prescribed document checks on prospective employees before employing them to ensure they are lawfully allowed to work. The Home Office produces detailed guidance (the most recent version is available here An Employer’s Guide to Right to Work Checks together with a useful checklist to assist employers in conducting the checks.

Failure to Check

Employers have faced civil penalties for failing to conduct these checks, and criminal charges for knowingly employing an illegal immigrant, for some time; different enforcement regimes apply according to which legislation was in force at the time the employment commenced. Penalties vary on a case by case basis, with the maximum civil penalty currently standing at £20,000 for each individual who does not have the right to work in the UK. During the period 1st April 2015 to 30th June 2015, 539 civil penalties were upheld, amounting to total fines exceeding £10.5 million.

Since 12th July 2016, the criminal offence has been widened to include circumstances where an employer has "reasonable cause to believe" that a person is an illegal worker, and there has been a corresponding increase in the custodial sentence which can be imposed upon conviction from 2 years to 5 years. The criminal offence will only apply where an employer engages staff under a contract of service, employment or apprenticeship, whether express or implied and whether oral or written.

Employers should also be aware that from this date Immigration Officers have had increased powers to enter business premises to search for documents and to seize and retain evidence in relation to an offence. There are also new powers to impose compliance sanctions or even close a business that continues to employ illegal workers.

Conducting right to work checks

Where an employer can demonstrate compliance with the right to work checks regime, they will have a “statutory excuse” and be excused from paying a civil penalty where they are found to have employed an illegal worker.

The checks must be conducted prior to employment commencing otherwise the statutory excuse cannot be established. They involve a 3-step process as follows:

  1. OBTAIN the employee's original documents (as prescribed in the Home Office guidance).
  2. In the presence of the employee, CHECK that the documents are original and valid.
  3. COPY the documents and keep them securely, recording the date of the check and date for any follow-up checks.

Penalties can also be imposed where checks are not conducted at all, or not conducted in accordance with the statutory requirements. Where the right to work is time-limited, the check will only be valid for that period and subsequent checks will be required to ensure a continuing right to work. Where a TUPE transfer has occurred, employers should note there is a 60 day grace period in which the employer must conduct right to work checks; after this time they are unlikely to be able to establish the statutory excuse.

Discrimination Claims

Employers should also be careful not to fall foul of discrimination claims by implementing pre-employment right to work checks in respect of all employees, and indeed the Home Office has published a Code of Practice to assist employers in this regard, Avoiding Discrimination While Preventing Illegal Working. If an employer establishes that an individual does not have the right to work in the UK, they can then refuse to employ that individual.

The Byron raids again highlight the importance of ensuring that right to work checks are performed correctly, and also of being able to produce documentary evidence to support this. Employers are encouraged to review their current procedures to ensure they are compliant with the statutory regime.

*All information is correct at the time of publishing

Katy Parkinson

Napthens LLP – Employment Law Specialist

Katy is one of our Employment Law Specialists from Napthens Solicitors. Read more

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