This week Jessica Clough, Chartered Legal Executive, and Gemma Nelis, Trainee Solicitor in the Employment and Immigration team, look at right to work checks and some of the top 5 pitfalls they have seen affecting employers recently.
Right to work checks
As we know, employers are required to check the right to work of all new recruits before they start working for them.
As a result of Brexit and the pandemic there have been a number of changes to the process for conducting right to work checks over the last few years and this has led to a greater awareness by employers of the importance of right to work checks. However, a recent survey by TrustID, an ID Verification Provider, has found that 41% of employers surveyed found completing right to work checks contributed to recruitment delays. In such situations, is it tempting to rush or cut corners in recruitment procedures?
Why are Right to Work checks important?
By conducting an adequate right to work check at the appropriate time, the Employer will be able to benefit from the “statutory excuse” defence if it later turns out the individual is working in the UK illegally.
Businesses face fines of up to £20,000 per breach if a worker later turns out to be working illegally and they cannot rely on the statutory defence. Other penalties include potential criminal liability, director’s disqualification, loss of alcohol licence, loss of sponsorship licence, as well as naming and shaming online.
What are the top 5 pitfalls that we have seen recently?
Some of these may seem fairly basic points but it is amazing how often they occur:
1. Timing of Right to Work checks
It goes without saying but checks must be carried out before the recruit begins work in order to gain the statutory excuse. Most employers are aware of this requirement but will occasionally get caught out. A late check doesn’t mean the business needs to immediately fire the worker (as long as they do turn out to have the right to work in the UK). However, if it later transpires that the worker was working illegally (for example, using falsified documents), or has a time limited right to work which expires and they continue working, the employer will not be able to rely on the statutory excuse to protect them from penalties.
2. Forgetting right to work checks after TUPE transfers
It may not occur to an employer to carry out right to work checks on acquiring staff following a TUPE transfer. While in theory the new employer can rely on right to work checks conducted by the outgoing employer, this is only the case where those checks were: a) carried out correctly in the first place; and b) were carried out in accordance with the current immigration rules (i.e. after Feb 2008). If this is not the case, the new employer has 60 days “grace period” from the date of the transfer in which to conduct fresh right to work checks and gain a new “statutory excuse” in respect of those transferred workers. As a result, it will usually be safer to conduct fresh right to work checks on TUPE’s staff. This is especially the case for EU workers, whose Right to Work status may not have been checked by the old employer after Brexit, and anyone with a time limited right to work.
3. Keeping records of checks
Have you got a record of the right to work check and the date it was carried out to prove you carried out the Right to Work check before a new recruit started work? Is the record stored somewhere secure and filed in a place you will be able to find it again? This is particularly important for employers with Sponsor Licences.
4. Keeping up to date with changes
There has been a flurry of changes to the Right to Work check rules over the past few years. Brexit meant changes to right to work checks for EU workers. When COVID struck, permission was given for “Covid-19 adjusted” right to work checks to be conducted via videocall (although this ability was removed again in September 2022). At the same time, the Home Office has increased its push towards digital right to work checks and removed the ability to rely on checks of physical visa documents for non-settled workers in April 2022. Even right to work checks for British and Irish citizens are constantly changing and moving increasingly online with the introduction of Identification Document Validation Providers. TrustID’s recent survey found 30% of businesses surveyed did not feel prepared for these changes. With all this change, you can see how businesses could get things wrong, and how vital it is to stay up to date with any changes in this area.
5. Forgetting to follow up time limited visas
For those who do not have either British or Irish Citizenship or Indefinite Leave to Remain, their right to work in the UK will be subject to an expiration date. The employer will need sufficiently robust processes in place to ensure they follow up with these workers before their current right to work expires and to conduct a fresh right to work when they obtain new permission to work in the UK. As this date may be in several years after recruitment occurred, it is easy to forget to follow up on these checks and this could lead to allowing illegal working. We recommend diarising to check with the workers at least 3 months before their right to work expires. Lastly, if they lose their right to work, you will no longer be able to employ them, but their termination should still be conducted following a fair process or the business could face unfair dismissal claims.
What to do next?
Check your right to work processes. Are they sufficiently robust? Are your managers and HR teams up to speed with the latest rules? If not, could your business benefit from Right to Work training?
Our team of immigration specialists can help with all of the above points, including conducting in-house right to work training for your HR teams and managers, auditing, and even conducting mock Home Office audits! If you would like to discuss how we can help you out in more detail please reach out to Chris Harber, our Head of Immigration, at [email protected].
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.