Right to work checks

23 June 2016

Doing the correct Right to Work Check might well save you from prison

Consider the following (not at all uncommon) scenario: you’ve had a vacancy in one of your teams for months now and it is really impacting the team’s morale. Good news though - you have just secured a brilliant candidate to fill this vacancy and you are really excited that they can start next week. You will be away on a business trip next week though so you will ask the Sales Manager to welcome the new recruit and show him around. Job well done – apart from the fact you completely forgot that the candidate said something about extending his visa and you didn’t ask to see his passport or any other documents to confirm his right to work in the UK. This might now mean you will be sent to jail for wilfully failing to conduct the appropriate Right to Work Check and your business might even be shut down by the Home Office.

What is the Right to Work Check?

The Right to Work Check is a three-step process which all employers must follow every time they employ a new member of staff, to ensure that they have the correct right to work in the UK. The three steps are to Obtain, Check and Copy the appropriate documents. Employers don’t need to reinvent the wheel and are encouraged to use the Home Office checklist which can be accessed here. To complete the process it is worth adding steps four and five – to keep the copies for at least two years after the end of employment, and to diarise and follow up on any further checks that are necessary if the right of work is time limited. There are technicalities that catch out a lot of employers: you must see the original document with the person present, you need to conduct the check before they start working for you and the copies taken must be clearly date stamped to show that.

What are the changes?

Currently, an employer who fails to conduct the Right to Work checks will be liable for a civil penalty up to £20,000 per employee found to be illegally working in the UK. Further prosecution is only possible if it can be shown that the employer knew about the illegal worker’s status. Turning a blind eye and purposely not conducting the correct checks can therefore go unpunished.

The Government is introducing changes within the Immigration Act 2016 which will come into force from 12 July 2016. The threshold required for employers to potentially face prosecution will be lowered from “knew” about the employee’s illegal status to “had reasonable cause to believe” that the employee is disqualified from employment by reasons of the employee’s immigration status. Any employer who knows or has reasonable cause to believe that someone is working illegally could face up to five years in prison.

What should you do?

The above changes essentially mean that conducting the correct Right to Work Checks will be even more important than ever and but is absolutely essential that you take the time to review your procedures for checking the right to work to avoid penalties. If the documents provided to you don’t look right or you have any doubt at all about the candidate’s right to work in the UK you should seek further advice. It might even be a good time to ask someone to audit your existing process and documentation and advise you on the best way forward. You’re at the right place – please email HRSolutions@mhllp.co.uk and we’ll be happy to help.