Why employers should not get ‘right to work’ checks wrong

And how to avoid common mistakes leading to tougher sanctions

The attempts of the Home Office to simplify right-to-work checks, and to make it harder for illegal migrants to work in the UK, have put employers on the front line of tighter immigration controls. New proposals in the Immigration Bill 2015-16, currently progressing through Parliament, reinforce the idea that employers bear responsibility for the UK status of those they employ. The difficulty is the ever-changing nature of the right to work checks, which means employers can make mistakes.

Organisations have a statutory obligation to prevent illegal working by carrying out document checks on their employees’ right to work here. Failing to do so can result in a £20,000 civil penalty and, in some circumstances, a criminal conviction. The |Immigration Bill, which could be law by this summer, will bring in a whole host of changes to this checking regime, together with additional powers for immigration enforcement officers. The consequences for employing illegal workers were always serious, but the proposed measures add a new level of severity to the situation.

Businesses employing a high number of low skilled workers, for example retailers, hotels, restaurants and manufacturing companies, should start preparing now for the changes because the repercussions of failing to ensure there are no illegal immigrants in their workforces will be severe.

If implemented in its current form, the legislation allows immigration officers to seize the earnings of anyone found to be working illegally and tightens the rules that determine if a worker has been employed illegally. Currently, an employer commits a criminal offence if it knowingly employs an individual who does not have permission to work in the UK. The bill amends this, so in future an employer may be found guilty if it had ‘reasonable cause to believe’ someone was an illegal worker.

The bill also increases the maximum prison sentence for an employer’s criminal conviction from two to five years and gives immigration enforcement officers the power to issue an illegal working closure notice which will effectively shut down a business for 48 hours. The closure notice can be extended if the Home Office makes a successful application to the courts.

Most employers who receive a civil penalty only do so due to poor practices – all of which can be avoided with some careful planning and training.

There are a number of common pitfalls which can trap unwary employers:

• forgetting to record the date on which a check was carried out (this can be done on the actual photocopy of the document or noted on an internal HR system)
• forgetting to make follow-up checks at the correct time (employers should diarise when these need to happen)
• not carrying out the additional checks required if the employee is a student with work restrictions. Employers must also obtain, copy and retain details of the student’s academic term and vacation times so that they can ascertain independently when it is that a student can work full time
• getting caught out by not retaining evidence of checks for the necessary period of time or by not retaining copies in a secure manner (for example, the evidence and copies should not be kept in an unlocked cabinet in an unlocked office)
• making photocopies of documents that are unclear or not complete. At one time a partial right to work check would be considered ‘mitigating circumstances’ (in other words, something which may reduce the severity of the charge) but this leniency has since been removed – so checking and copying documents correctly is now more important than ever
• only conducting right to work checks after the employee has already started work. Employers should ensure that all initial right to work checks are carried out prior to new recruits commencing work.

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