The Right To Work: What Do You Need?
Your friendly Government Website is very clear on the implications of employing an illegal worker. A cool 5 years of jail time and an unlimited fine could be imposed upon an individual found guilty of employing someone for which they “had reasonable cause to believe” did not have the right to work in the UK. This applies if you, as the employer, had any reason to suspect that:
- They were not entitled to enter or remain in the UK;
- Their permission to be in the country expired;
- They were not allowed to do certain types of work; or
- You knew the papers were false or incorrect.
You can also be penalised if you employ someone who does not have the right to work and you are unaware of it because you did not perform the correct checks. If this happens, you can be looking at paying up to £20,000 for each illegal employee. If that wasn’t bad enough, the Immigration Enforcement Authority can then publish your business’s details to warn other businesses not to employ illegal workers and make sure that you get a good reputation in your industry for hiring illegal staff.
For those employers that wish to run the risk, in 2017 the Employment Appeal Tribunal confirmed that there is, in fact, no strict requirement for an employer to perform the document checks required to confirm proof of the right to work.
At Kate Underwood HR, we primarily work with small and medium-sized organisations, so we are keenly aware that it can only take one illegal worker to cripple your business. We take care of the checks, so our clients don’t have to worry about it. If, however, you’d like to perform these checks yourself, below are the documents you need to check…
What Proof Is Required?
Below are three lists of documents that can be accepted as proof of the right to work within the UK. You must obtain one or more of the original documents mentioned; which list it is in will determine how long the ID is valid for.
As the title suggests, the items within this list will only need to be seen once and from that point will serve as acceptable proof of the right to work in the UK for the entire duration of their employment. For long term confidence that all of your employees have the right to work, ask to see a:
- Passport showing that they are a British Citizen
- Passport showing that they are a national of a European Economic Area (EEA) country, or Switzerland
- Birth or adoption certificate issued in the UK, Channel Islands, Isle of Man or Ireland, together with an official document displaying that person’s National Insurance number and their name (issued by the Government or a previous employer)
- Certificate of registration or naturalization as a British citizen, together with and official document displaying that person’s National Insurance number and their name (issued by the Government or a previous employer)
This next list of documents will only be valid proof of the right to work for the duration specified in the document and once the document expires you will need to chase up eligibility further. Failing to do this is the most common way that employers find themselves in the first category, of “having reasonable cause to believe” that their employee did not have the right to work in the UK.
- A Passport that has been endorsed allowing an employee to a specific type of work
- A Biometric Residence Permit issued by the home office, indicating that the person can currently stay in the UK and is allowed to do the relevant work
- A residence card issued by the home office indicating that they have derived a right of residence to the UK, EEA or Switzerland because of family links
- A current immigration status document issued by the Home Office, together with an official document displaying the person’s permanent National Insurance number and name.
- Work Visas are amongst the most common forms of temporary proof to work documentation. If you sponsor Visas as an employer, or regularly hire workers on industry specific work visas, you must keep track of when the expiration date is.
Short Term Proof:
If your prospective employee is unable to provide you with any of the documents mentioned in the previous lists, there are some documents from the Home Office that will be provided to give them short term rights to work. If one of these documents is supplied to you, they need to be checked every 6 months or sooner (as specified).
These documents will most likely be application documents that have been endorsed, where the Home Office acknowledges their potential right to work within the UK but has not finalized all the paperwork.
What Checks Do You Have To Make?
An employer has a reasonable duty to ensure that the documents they are being shown are genuine and belong to the prospective employee. Check out my fun blog post about checking references here. There are a few questions that an employer must ask themselves with regards to the documentation that they are presented:
- Are the photographs consistent across all documents, and with the person’s appearance?
- Are dates of birth consistent across documents and with the person’s appearance?
- Are there any expiry dates to be taken account of, if applicable?
- Have you checked work restrictions to determine if the person is able to work for you? For example, students may have limited permission to work during term times only
- Are you satisfied the document is genuine, has not been tampered with and belongs to the holder?
- Have you checked the reasons for any different names across documents (e.g. Marriage certificate, divorce papers, deed poll)?
Take a Copy
When you are satisfied that you have seen the correct document and are suitably convinced of its authenticity, you will need to take and retain a copy.
If it’s a Passport, you need to take a copy of the main identification page, as well as any page that references information indicating that the holder has entitlement to enter or remain in the UK to undertake work.
If it is any other document, you will need to take a full copy of the document, or both sides of a Biometric Residence permit.
You can retain the copy as a hard copy, or in electronic format. How you gather, keep and ultimately dispose of your staff information is another topic to get into, but for the moment you can rest easy knowing that, if you’ve taken all the steps until now, the Immigration Enforcement Agency isn’t going to cause you any problems.
Will The Right To Work Laws Change After Brexit?
What will the UK leaving Europe mean for you as an employer and your responsibilities on checking whether an employee is eligible to work?
Nothing. You will still be expected to ensure that you are not employing illegal workers.
In practice, if it were to transpire that Europeans coming to the UK required some form of Work Visa, you will want to put a more rigid process in place to monitor expiry dates, but this is something that even the most basic employee management system will provide you with. We use Breathe to quickly and easily allow us to monitor our Client’s employees but if you work independently from ourselves there are other inexpensive employee management software providers out there too.
The best thing you can do to prepare for Brexit (in the context of employee eligibility to work in the UK) is to ensure that you have a good process in place, and keep up to date on what, if any, changes are made to the law. Your responsibilities will not change as an employer, but it will be useful to know whether your ID check will provide you with permanent evidence of a right to work in the UK, or a temporary one.
The cost of hiring an illegal employee to your business is massive, but the checks to stop it happening are easy.
Follow the guidance above, and we hope that you will rest easier knowing that you’ve done your due diligence as a responsible UK employer.
If you have any further questions regarding employment checks, or need advice on any other HR matters, please do not hesitate to get in touch by emailing, [email protected], or phoning 02382 025160.