Right to Work Checks for Employers

Penalties for employing illegal workers

If an employer is found to have employed an illegal worker, they may be liable for a civil penalty or in the worst case be subject to criminal prosecution.

Civil penalties for employers caught employing an illegal worker can include:

• First offence £45,000 fine per illegal worker
• Subsequent offence £60,000 fine per illegal worker
• Revocation of Sponsor Licence, meaning the end of employment for all sponsored workers
• Loss of Liquor Licence
• Disqualification from becoming a company director for six years

If subject to a criminal prosecution, on conviction a court can impose a six month prison sentence, a fine of up to £5,000 or both.

The Right to Work checks

There are four types of Right to Work check:

• The manual check – mostly for British/Irish nationals (although a few other exceptions apply for a limited period)
• The digital check – the Home Office has approved certain digital companies to provide digital checks via the use of an app – mostly applies to British and Irish nationals who have a valid passport
• The Home Office’s online Right to Work check – for every non-British/Irish national who has a valid visa or other status that can be verified through the Home Office’s online system
• The Home Office’s Employers Checking Service – a service employers use to submit a request to the Home Office to establish a person has a Right to Work when the employee has a specific visa application outstanding with the Home Office or when the person’s existing visa has expired but they have made an application to extend their status or are appealing a refusal to extend their status.

Employers completing the right check, at the right time, and establishing a Right to Work at all times is essential to comply with the law and avoid a civil penalty. There are additional rules in respect of the inspection of original documents and Right to Work reports received and the retention of relevant documents for specific periods of time.

How we can help

We can offer advice and support depending on the level of involvement required by your business to remain fully compliant. Our services include:

• Training of relevant personnel in your business on the Right to Work system and the specific checks that should be undertaken for employees depending on their immigration status.
• Audits on the Right to Work checking system your business has in place, the checks undertaken in respect of all employees and provide recommendations to avoid breaches and streamline your processes.
• Advice on individual cases including establishing a Right to Work for a potential employee, conducting relevant checks when an employee’s visa status is in transition and when relevant, in respect of dismissal procedures when an existing employee is unable to establish a Right to Work.

Staff recruitment, retention and how to avoid discrimination claims under the Equality Act 2010

Under the Equality Act 2010 an employer cannot discriminate against an employee, or a potential employee, on the basis of a protected characteristic as defined in the Act. One of the protected characteristics is race. An employer’s obligations under the Equality Act, and potential liability to claims brought under the Equality Act, creates an uneasy tension in complying with Right to Work laws and the Equality Act simultaneously. An employer, for example, is told in various codes of conduct that they should not consider the Right to Work status of a candidate during the recruitment stage but MUST establish a Right to Work before any person commences employment. This separation may appear simple in theory, but in practice can create very real problems for employers.

Our expert advice

• We can advise employers on best practice procedures to adopt during recruitment to correctly balance their legal obligations and including in respect of how job vacancies should be advertised
• We can advise employers when specific issues arise during the recruitment process with particular candidates and how they should be handled within the law

TUPE Right to Work Checks

Transfer of Undertakings (Protection of Employment) (TUPE) Regulations 2006 provide that Right to Work checks carried out by the transferor (the seller) are deemed to have been carried out by the transferee (the buyer). As such, the buyer will obtain the benefit of any statutory excuse established by the seller.

However, if the seller did not conduct the original checks correctly, the buyer would be liable for a penalty if an employee, who commenced work on or after 29 February 2008, is later found to be working illegally. Also, a check by the buyer may be the only way to determine when any follow-up check should be carried out in respect of employees with time-limited permission to work in the UK. For these reasons, employers who acquire staff in cases of TUPE transfers are advised to undertake a fresh right to work check on those staff they have acquired.

Thankfully, the Home Office recognises there may be practical problems in undertaking these checks before employment commences for workers acquired as part of a TUPE transfer, and for this reason a 60-day grace period is permitted during which the new employer should undertake the check.

How our team can assist

We understand that this is normally a period of intense activity for a business and we can assist in the following way:

• Audit the Right to Work checks undertaken in respect of all employees and provide recommendations to avoid breaches and streamline your processes for the future
• Advice to your HR personnel as required on complex cases

Receiving a Civil Penalty for Employing an Illegal Worker

The Home Office routinely carries out unannounced visits on employers to investigate illegal working. If the Home Office suspects illegal workers are employed, it will issue a ‘Civil Penalty Notice’. This Notice will set out how many illegal workers are alleged to have employed and state the amount of the fine to be paid.

An employer has 28 days to reply to the Notice setting out their explanation in respect of the allegations and this can include setting out a full or partial defence to the allegations in the Notice. If an employer accepts they do not have a full or only a partial defence, representations should be set out in respect of the amount of the fine they should be liable to pay.

The Home Office will then respond with a final decision and specify the number of days for payment of the fine imposed. If the employer does not accept the decision or the amount of the penalty, they can appeal the decision to a local Court. This appeal must be lodged with the Court within 28 days of receipt of the Home Office’s final decision.

The worst case scenario is when the Home Office believes an employer has “knowingly” employed an illegal worker and the employer can be subject to criminal proceedings.

How we can help

The impact of receiving a Civil Penalty or being subject to Criminal Proceedings for employing illegal workers can be devastating on a business financially and reputationally, and on the employer personally. The level of the fines may mean the survival of a business is put at risk. Further serious consequences can include losing licences including a liquor licence and a Sponsor licence. The loss of a Sponsor Licence has the result that sponsored workers can no longer work for the employer. At the very worst, if the employer is subject to criminal proceeding and a conviction is received the employer can receive a prison sentence of up to six months.

• We can prepare a full response to the Notice in respect an employer’s liability and if relevant, set out a full or partial defence to the Notice, or seek to negotiate the level of fine to be imposed
• When a final decision from the Home Office is received we can fully advise of further options, including when appropriate appealing to a court

Why choose us?

Our Immigration law specialists understand the serious challenges Right to Work laws pose for employers generally and the added complexities that can arise during recruitment and under TUPE arrangements. For these very reasons, our Immigration law experts are strategically embedded within our Employment law Team. Our combined Employment and Immigration law Team can provide expert advice and support to ensure full compliance with Immigration laws, Right to Work laws, non-discrimination obligations arising under the Equality Act and issues under employment law.

Contact us by filling out the enquiry form or emailing Mark below.

Speak to our immigration for employers solicitors today

If you’re looking for advice on right to work Checks for employers, get in touch with our expert lawyers today.

Contact us on 0131 270 7700, visit our offices in Edinburgh, Glasgow, East Lothian, Shetland or Orkney, or fill in our enquiry form to request a call back.