Illegal working checks - are you protected?

The Home Office is focussing on the prevention of illegal working. Are your practices for checking right to work documents up to date and being adhered to?

As an employer, you may be liable to a civil penalty of up to £20,000 for each illegal worker if you fail to carry out the necessary checks on individuals before they commence work and are found to be employing someone who doesn't have the right to work in the UK.

Also, knowingly employing an illegal worker, regardless of whether you have conducted documents checks, is a criminal offence and could result in up to 2 years' imprisonment and/or an unlimited fine.

This particularly impacts the healthcare sector due to the number of individuals employed. There is also increased risk to service users if the employer has not completed the correct checks as it may not be possible to verify an individual's identity or qualifications. This poses potential safeguarding risks, reputational damage and could impact disclosure requirements for future tenders.

How to conduct checks

Employers should conduct right to work checks on all potential employees before employment commences - do not make assumptions.

To prevent the risk of discrimination, you should treat all job applicants in the same way during recruitment.

1. Obtain. Obtain original documents from the list of acceptable documents produced by the Home Office, which is periodically revised and updated.
2. Check. Employers bear some responsibility for ensuring that the document is genuine and has not been tampered with. To discharge this burden, you must check:that the names, photographs (with the persons appearance) and dates are consistent across documents, to detect potential fraudulent documents, and that the expiry dates in date and any work restrictions permit them to undertake the work on offer;
3. Copy. Make a clear copy of each document, which cannot later be altered, and retain the copy (electronically or in hardcopy), ensuring that you record the date of the check. The requirement for copying differs depending on the document checked. You must retain copies securely for not less than 2 years after employment has ended.

Employers beware...

1. The requirement to check an employee's right to work does not end at the point of recruitment. Follow up checks can be required e.g. when permissions to work expires. You must have a system in place to allow you to monitor when repeat checks are required. If you fail to carry out repeat checks when they are required, you will no longer benefit from the statutory excuse and may be liable for a civil penalty and/or prosecution.
2. Where transfers of employees can feature on a regular basis, checking that transferring employees have the right to work can often be overlooked. As the new employer, this is your responsibility. Although you have a grace period of 60 days from the date of the transfer to correctly carry out the right to work checks on all transferring employees.

Summary

As an employer failure to undertake the correct checks can result in civil and criminal prosecutions. In order to avoid these penalties it is important to ensure that:

1. you do not make assumptions about a person's right to work or their immigration status on the basis of their colour, nationality, ethnic origins, accent or length of time they have been resident in the UK;
2. you have systems and processes in place to check and retain copies of the correct right to work documentation; and
3. any procedures in place are reviewed and updated to take into account the latest Home Office requirements.

For further information or guidance please contact Jennifer Featherstone, a member of the Shoosmiths' business-immigration team or a member of the healthcare team on healthcare@shoosmiths.co.uk.