All British employers have a legal responsibility to confirm employees’ right to work in the UK under the Right to Work scheme. The Right to Work scheme aims to make it harder for illegal immigrants to get work and is enforced by unannounced audits by the Home Office. As penalties for non-compliance are about to triple, it is important that organisations know what they should be doing to check identities of the people working for them, and what to expect if the Home Office come knocking.
Fines for Non-Compliance
If a company is found not to be checking the Right to Work status of workers, or not keeping proper records about who has been checked, the Home Office can impose substantial penalties. Penalties for employing illegal workers can range from £15,000 to £20,000 per illegal worker, depending on factors such as the employer’s compliance history and the breach’s severity. With new measures effective from 2024, the maximum fine per illegal worker is increasing to £60,000. Employers may in addition face criminal charges they employ someone in full knowledge that they don’t have a legal right to work, which may result in unlimited fines and up to five years of imprisonment. Thorough checks and meticulous record-keeping are crucial to avoiding legal trouble.
What Employers Must Do
Employers must take all practical steps to check workers and keep evidence to prove that they have run the checks. This is what is known in law as a “statutory excuse” – in the event of an audit showing that a worker is actually here illegally, the company can prove that it did all it could to guard against this happening. The system should include:
- Seeing original identity documents, comparing them to the likeness of the worker, and keeping copies of the paperwork provided in a secure way.
- Using the government’s digital identity verification system to run further checks on someone’s identity and keeping copies of the report generated by the system.
- Using the Home Office’s Right to Work tool which helps to confirm visa status and verify photographs.
Follow Up Checks
Historically, employers have been fairly good at checking up on workers’ status when they initially apply for a position. However, for employees who do not have indefinite leave to remain in the UK and who are not British nationals, checks must be repeated every six months or a year to ensure they still have the right to work in the UK. Failing to do these follow-up checks carries just as strict a penalty as failing to do any checks in the first place. Companies must also take care to avoid discrimination or making assumptions based on their nationality or other characteristics.
Developing a Right to Work process which works for you, your business and your employees isn’t always easy, and many employers use HR specialists to help them develop a bespoke process which works for them. It’s important to review policies and processes regularly – preferably every year – as circumstances and legislation changes.
