Checking an employees right to work

Peninsula Team

April 25 2016

It is illegal to employ someone who does not have permission to work within the UK and it is a criminal offence to knowingly employ an individual as an illegal worker. Illegal working is increasingly becoming a problem in the UK and the Government has recently introduced more severe penalties for those employers who add to the issue by providing employment to people who do not have the right to work here. In order to comply with the current legislation, employers should carry out certain checks on all potential recruits to establish whether they have the right to work in the UK. As some employees may only have a limited right to work subject to their visa or permit, there is also a duty to periodically check that the employee still possesses this right and the visa or permit hasn’t expired, been revoked or not renewed. If you fail to conduct the necessary checks, and you are found to employ illegal workers you could face a financial penalty of up to £20,000 per illegal worker. Further to that, if you are found to knowingly employ illegal workers you could face up to 2 years’ imprisonment and an unlimited fine as this amounts to a criminal offence. An employer should fulfil the following steps as part of the ‘right to work’ check:
  1. Obtain relevant original documents from the employee before employment starts.
  2. Check them in the presence of the employee (compare names, dates and faces).
  3. Photocopy and keep a copy of the documents along with the date when the check was made.
Although you are not required to have extensive knowledge on immigration documents, when checking you should be satisfied that the documents are genuine; that the originals are provided and they have not been altered in any way. You should compare the photos and check that they look like the individual in question, compare the date of birth is consistent across all documents and make sure that the documents are still valid. If you carry out the necessary checks and they are done correctly, you will have a defence against the fine, meaning that if some of your workers are found to be illegal you will not be liable for a civil penalty. However, carrying out the check is not a defence if you knowingly employee an illegal worker.  

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