Do Your Employees have Permission to Work in the UK?
... Are you sure? Employers have a legal requirement to check their employees have permission to work in the UK. You risk being fined if you employ staff without such permission. Carrying out the correct checks, at the right time and keeping your records up to date may help you avoid such fines.
From our work as employment law advisers, it is clear that the government, through its Immigration Enforcement Department, is becoming more proactive about identifying and fining employers who employ staff without a right to work in the UK.
Employers should ensure that they are carrying out the necessary checks on employees not just at the start of new employee's employment but also throughout their employment.
The Immigration Enforcement Department
The Immigration Enforcement Department was established in April 2012 and is responsible for preventing abuse, tracking immigration offenders and increasing compliance with immigration law. It regulates migration in line with government policy alongside other partners such as the police. It also prevents illegal migration into the UK; and encourages and enforces the return of illegal immigrants from the UK.
If the Immigration Enforcement Department suspects that your business is employing staff without a right to work in the UK, the department will write to you to start an enquiry into your workforce. Should they find that one of your staff does not have the right to work, your business will be fined.
This enquiry process can be time consuming and expensive. It is far better to ensure that you have an appropriate checking system in place.
What checks should employers carry out?
To prevent illegal working in the UK, employers must carry out document checks on people before employing them to make sure they are allowed to work in the UK.
Government tools and services to help you do these checks can be found here:
Most employers conduct these "right to work" checks on employees before their employment start date. Employers might, for example, check and copy passports, residence cards and other documents.
What issues can arise?
It is all very well checking an employee's right at the start of employment, but problems can arise if the checks are not updated. To avoid such problems, employers should:
- check if an employee's right to work has an expiry date. (For example, when does the employee's work visa expire?)
- before that expiry date, check whether the employee's right to work in the UK will continue beyond that deadline.
The penalty – up to £20,000 fine
An employer's failure to carry out the appropriate (and regular) checks is not an offence in its own right. However, if those checks are not carried out and an employee does not have permission to work in the UK, the employer will be liable for a significant fine, (up to £20,000 per employee). The fine is administered under a statutory scheme.
An employer may be liable for a fine only if: (1) the employee was employed at a time when he was not permitted to work in the UK; and (2) the employer did not carry out the appropriate checks.
The fine can be avoided entirely if the employer can establish that:
- it had made the appropriate checks in line with the government's requirements; and
- therefore could not reasonably have known that the employee did not have a right to work in the UK.
However, if those checks were not carried out then the fine will be imposed.
What can you do?
If you do not already have in place checking procedures, take action as soon as possible to instate such procedures. Failing to do so will mean you are in breach of the immigration laws and liable to a fine if your employees do not have UK rights to work.
To discuss the checking procedures and what you need to do to ensure your work force has the right to work in the UK, contact Susan Mayall on 0161 684 6948 or make an enquiry.
Subscribe to our newsletter
Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.
This blog was posted some time ago and its contents may now be out of date. For the latest legal position relating to these issues, get in touch with the author - or make an enquiry now.