Employers require to carry out Right to Work checks on all new employees before they start work. For existing employees, employers require to ensure, if their right to work is time-limited, that they carry out Right to Work checks at the appropriate point. For British citizens and EEA nationals, employers require to see a valid passport or ID card.
For potential employees who are neither British nor from the EEA, the documentation you can rely on starts to become more complicated.
As well as actually seeing the correct original document(s), an employer is also under a duty to retain a copy of the document, (even when an employee leaves your employment, you must continue to retain that document for 2 years) and the employer is required to take all reasonable steps to ensure the documentation is genuine.
It sounds pretty straightforward so far, but it is not difficult for businesses to make an innocent mistake which can lead to pretty catastrophic consequences.
Firstly, the business may face civil penalties of £15k to £20K per employee and, if that was not penalty enough, if that business has a Sponsorship licence to employ PBS migrants, it may find that their licence, itself, is at risk of suspension or, worse, revocation by the Home Office.
Finally, in the worst case scenario the business owner or manager responsible for the employment could find themselves facing a criminal penalty which carries with it the risk of a custodial sentence.
We set out below some common mistakes that employers can make, based on real life cases where businesses have consulted us after having been served with Illegal Penalty Notices by the Home Office.
5 Common Mistakes that Employers Make
Evidence from previous employment
Employers will often say to us, "Well, he used to work at the large supermarket down the road, he must be legal" - Do not, under any circumstances, rely on someone's previous work history to satisfy yourself of that individual's current right to work.
Out of Date Visas
Often, an employee will have the right to work at the date of commencement of employment; however, the employer will then forget to diarise the visa expiry date. If this employee is caught working at the premises, the fact that at an earlier date, a right to work existed, will not be a defence against illegal employment.
Ensure your business has robust HR systems in place to ensure that all visa expiry dates are diarised ahead in order that you can then check to obtain a Positive Verification Notice from the Home Office.
National Insurance Numbers
Clients often come to us and say, "She/he had a National Insurance Number, that means they had a right to work". Again, the fact that someone has a National Insurance Number does not evidence a current right to work and evidence that you saw a National Insurance Number will not provide a defence against a Civil Penalty.
"He told me he'd bring the documents in"
New employees are often introduced at a time when businesses are at their most stretched and meeting the urgent business needs can often, at the time, seem more important than the immigration paperwork. Adopt this approach at your peril - the duty is on you to ensure that you have seen the right paperwork before employment starts, otherwise you will have no defence against a civil penalty.
"She was only filling in for a few weeks. I didn't think this counted as work" or "he/she was only helping out while I went to the bank"
The Home Office tend to particularly target small businesses such as grocery shops and restaurants owned by ethnic minority business people. The Home Office take a very wide view on what constitutes "employment" and, if someone helps you out by stacking shelves or washing dishes, then the Home Office will classify this as employment irrespective of whether you pay them or not.
Drummond Miller can help you with
- Understanding your legal obligations as an employer.
- Advising you on right to work checks.
- Ensuring you check and keep records of the correct documentation.
- Advising you on follow-up right to work checks.
- Challenging both Civil and Criminal Penalties