October 18, 2016

Illegal working: practical steps to protect your business

Illegal working is a pressing concern facing the Government, with repeated promises from ministers to tackle the issue.

There have been high profile cases where the Government has acted, the most eye-catching recently being the Byron Burger sting that saw dozens of workers arrested and the business criticised for colluding with immigration officials.

With recent changes to legislation beefing up the punishments to businesses employing illegal workers, make sure you follow these practical steps to protect your business.

Illegal working and employer duties

To comply with the Immigration, Asylum and Nationality Act 2006, employers have a legal duty to prevent illegal working and thus must check a person has the Right to Work by checking certain specified documents – residence permit, visa, passport etc. (see a full list here).

Failure to do so can result in a financial penalty of up to £20k for each worker found to working for the business illegally.

Where an employer intentionally employs or allows a person to work illegally they can face a criminal charge and, if found guilty, could be imprisoned for up to two years (the Immigration Act 2016, expected to come into effect October 2016, raises the maximum sentence to five years).

Every person who has been offered employment in the UK will need to be checked to ensure they are eligible to work in the UK before they are allowed to start work, known as a right to work check.

These checks should be carried out for all employees who have been given a conditional offer of employment to ensure individuals are not being unlawfully discriminated against because of their nationality at any stage of the recruitment and selection process.

Checks are also required for employees transferring to your employment following a TUPE transfer.

Preventing illegal working: obtaining the relevant documents through a right to work check

There are three basic steps to conducting a right to work check:

(1) Obtain original versions of one or more of the acceptable documents.

The acceptable documents fall into two lists, A and B.

Under list A the acceptable documentation can be a passport or nationality identity card showing the person is a EU national (see Government website for more) or a Biometric Residence Permit.

Under list B, employees and potential employees should produce a passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question, or a Biometric Residence Permit which indicates the named person can currently stay in the UK and is allowed to do the work in question.

A combination of documents from either list A or list B would suffice.

Essentially, list A documents show an ongoing right to work in the UK; list B documents show a right to work for a limited period.

(2) Carrying out the checks

The original documents should be checked in the presence of the employee to ensure they are genuine, and that the person presenting them (the employee/prospective employee) is the rightful holder and allowed to do the type of work offered.

A right to work checklist is available and should be completed in all cases to ensure compliance.

(3) Retention of records

All copies of documents taken must be kept securely (electronically or in hard copy) for the duration of the employee’s employment and for two years afterwards.

You must also record the date you conducted the check.

Additional evidence from students

Where the check carried out is for a student with a limited right to work in the UK during term time, the employer is also required to obtain and retain evidence of their academic term and vacation dates.

Unsure about an employee’s or potential employee’s right to work?

If in doubt about a potential or current employee contact the Employer Checking Service Enquiries on the Home Office Website.

It’s important not to make any assumptions about nationality, colour, accent, ethnic origin or length of time spent in the UK when considering whether to make a check.

And of course you can also contact the Moorepay employment law team to discuss your particular concerns or queries – contact the team or call 0345 184 4615.

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About the author

Francis Scoon

Francis has over 20 years’ experience of Employment Law and HR related issues gained in both large public and private organisations. As well as representing SMEs, Francis has worked in the Employment Department of a large regional law firm, advising preparing and representing cases on behalf of claimants. Before joining Moorepay, Francis was a Senior Advocate where, in addition to maintaining a caseload of employment tribunal cases covering all aspects of employment law, he managed a team of advocates and an administrator.

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