Losing the right to work

What happens if an employee’s right to work in the UK runs out? We look at the law and your options

Employees who no longer have the right to work in the UK

We recently received a question via the Advice Line from an employer who wanted to know what options they had if they employed someone whose right to work in the UK had ran out. As this could apply to many employers, we’re sharing the advice given here, just in case it ever applies to your own business... The issue of employees losing the right to work in the UK usually occurs due to time-limitations. To avoid the issue of illegal working, employers should identify those with time-limited rights and carry out follow-up checks on their immigration documentation. This will ensure that the employer is aware of the immigration status expiring in advance, so they can deal with it effectively and ensure they’re not employing an illegal worker.

Is dismissal the only option?

Many employers believe that their only option is to dismiss the employee. Where employers have actual knowledge that the employee doesn’t have the right to work in the UK, this can fall under the potentially ‘fair reason’ of a statutory ban. However, this would be difficult to prove – so instead, a genuine and reasonable belief that the employee is not entitled to work can fall under the ground of ‘some other substantial reason’ (SOSR). Immediate termination can leave the employer open to a claim of unfair dismissal, or even race discrimination – regardless of the illegality of continuing to employee the worker. Therefore, employers should follow a fair dismissal process. Simply suspecting that they’re working illegally will not be enough, so employers need to fully investigate the immigration status of the employee. While employers are not expected to be immigration experts, there are various services available to check the status of employees, including the online Home Office Employer Checking Service. Similarly, alternatives to dismissal should also be considered. This might be important where the employee’s current permission to work in the UK has expired, but a new application is pending.

Potential consequences for employers

Sometimes, after following a fair procedure, a dismissal will be the only option available, as employing an illegal worker can have significant penalties for the employer. The penalty for employing someone who you knew or had ‘reasonable cause to believe’ didn’t have the right to work in the UK covers situations where leave expires, and can lead to a jail sentence of five years and an unlimited fine. Employees can also lose the right to work in the UK for other reasons, which employers should also ensure they’re aware of. This covers scenarios where the employer loses their sponsor licence, or in cases where there’s a TUPE transfer to an employer who doesn’t have a sponsor licence.