As of 1 July 2021, employers faced an increasingly complex compliance burden that relates to right to work checks following Brexit and the end of free movement for EU nationals, meaning that they can no longer use their EU passports as proof of their right to work.
With the government updating the code of practice for preventing illegal working, the increasing complexity of pre-employment checks means that, more than ever, businesses need to understand their legal obligations and are conducting the right checks.
Failing to do so means they run the risk of considerable penalties, as well as damaging the reputation of their business.
What are my legal obligations to check an employee’s right to work?
All UK employers have a responsibility to prevent illegal working and are legally bound to check the right to work status of all candidates before they start work.
As employers you must:
- Comply with the Home Office’s Right to Work Checks Guidance on how to carry out right to work checks, ensuring the most up to date Guidance is used for each check;
- Conduct follow up checks were necessary;
- Keep proper records of the checks carried out for the duration of the employment and two years afterwards;
- Not employ anyone you know or have reasonable cause to believe is an illegal worker;
- Comply with sponsor duties if you hold a sponsor licence permitting them to recruit overseas Skilled Workers; and
- Not discriminate when carrying out the checks.
When checks are carried out in line with Home Office guidance, employers will benefit from a ‘statutory excuse’ from any illegal working penalty, meaning that by ensuring the checks are conducted properly, a business will not be penalised should illegal workers be found to be employed.
Consequences of getting it wrong
Legally, the consequences of employing illegal workers are significant and can impact your business in several ways. Possible sanctions include:
- A civil penalty fine imposed on your business of up to £20,000 per illegal worker.
- In serious cases, a criminal conviction for the owners or directors of your business personally, carrying a prison sentence of up to five years and an unlimited fine for the business.
- Closure of your business and a compliance order issued by the court;
- Disqualification from being able to act as a director, which means restrictions on being able to hold directorships of any companies for as long as the disqualification lasts;
- Your business may be prevented from sponsoring migrants – which means you will not be able to recruit talented individuals who might require sponsorship to work for the business;
- Seizure of earnings made as a result of illegal working; and
- Depending on the sector, your business may lose its licence to operate. For example, an illegal working penalty may result in the loss of a Gangmasters and Labour Abuse Authority licence. Similarly, businesses operating in the alcohol and late-night refreshment sector or the private hire vehicle and taxi sector may lose their licences where illegal working is discovered.
Not only can illegal workers disrupt the normal operations of your business, but it can also cause irreparable repetitional damage, as the Home Office publishes the names of all businesses who have been found to employ illegal workers as well as the value of the penalties incurred, every quarter, which naturally attracts media attention.
In certain circumstances, penalties for illegal workers can impact the business’s health and safety provisions and/or safeguarding obligations, and can potentially invalidate its insurance.
This is particularly the case where the business has relied on employees being truthful as to their identity, qualifications or skill levels and these turn out not to be as claimed.
Legally compliant right to work checks must be conducted for all employees before employment, and make sure that all candidates, regardless of ethnicity or nationality are legally permitted to undertake the work in question.
These checks must take place before employment starts, or the check will not be effective and protect the business should anyone be found to be working illegally at a later date.
All job applicants should be treated the same way at each stage of the recruitment and onboarding process to avoid the risk of discrimination claims based on ethnicity or nationality. Making sure that consistent policies are applied across the business will minimise the risk of discrimination claims.
Right to work checks are not the only pre-employment checks, as certain industries will have different standards and checks that are legally required, as well as right to work checks, and it may be wise to seek the expertise of a third-party agency to conduct various pre-employment checks.
If you’re looking for pre-employment screening companies, get in touch today.