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.
It is important that employers are proactive in seeking out the correct identification documentation at an early stage. Conducting the checks on the day that the employee commences work will not provide the employer with a “statutory excuse”. Employers are also required to request sight of original documents and retain copies for the duration of the individual’s employment and for two years after termination.
Employers should be aware that if they acquire employees as a result of the Transfer of Undertakings (Protection of Employment) Regulations 2006, they must check original identification documents within 60 days of the date of the transfer. Employers may be surprised to learn that they cannot rely on checks carried out by the previous employer.
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.
In order for an employer to minimise the risk of any discrimination complaints, they should carry out checks on all prospective employees. The Home Office issued a new Code of Practice in May 2014 (Avoiding Unlawful Discrimination While Preventing Illegal Working), which offers useful guidance.
Ideally employers should conduct the recruitment process in the normal way and only raise the issue of an applicant’s right to work in the UK once the successful candidate has been identified on the basis of merit, but before the employment commences.
To minimise the risk of any potential claims, employers should ensure that any offer of employment is made conditional on the prospective employee having and maintaining the right to work in the UK.
Employers would be well advised to deal with background and identification checks consistently to ensure that there can be no allegations of discrimination, whilst also complying with the necessary checks to enable them to rely on the ‘statutory excuse’ if an employee is found not to have permission to work in the UK. The Home Office codes of practice represent important guidance for employers, particularly in light of the harsh financial penalties for non-compliance.
The author, Kristie Willis, is a solicitor for BTMK Solicitors LLP.
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