
There are no less than three different regimes which must be followed depending on the employee’s start date. For those employed after May 2014, the relevant provisions are contained within the Immigration, Asylum and Nationality Act 2006 and the new code of practice which was issued in May 2014.
Employers who unwittingly engage an illegal worker can face a maximum penalty of £20,000 for each individual who does not have the right to work. It is possible that employers can avoid a financial penalty if they can show that they carried out the correct checks before the employee started work. This is known as the ‘Statutory Excuse’. This defence would only be open to employers who have retained documentation to evidence the checks that they performed before the employee was engaged. The documents that the employer would have been required to view from the employee would depend upon their immigration status. The Government has produced the Employer’s Guide to Acceptable Right to Work Documents, which acts as a useful guide to navigate through the complexities of immigration checks. However, perhaps of far greater concern is the possibility of a criminal sanction. If an employer is found to have knowingly employed an individual who does not have permission to work in the UK, he/she can be deemed to commit a criminal offence. The penalty can be a prison sentence or an unlimited fine.Employers should pay particular attention to any restrictions on an employee’s right to work in the UK and ensure that systems are put in place which prevent any breaches of the restrictions. This is particularly relevant to students. In 2012 Tesco was fined £115,000 after checks found that students were working significantly longer hours than permitted by their visas. This fine was in respect of breaches involving 23 workers. If employees only have temporary permission to work in the UK, employers were previously required to conduct checks every year. Under the 2014 Code of Practice, employers will be relieved to hear that they are now only required to do a follow up check when the permission expires.
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