Employers in the UK have the legal responsibility to make sure that their employees have the legal right to live and work in the UK. This is why it is common practice to ask applicants to bring a passport to interview with them, or another way of proving their nationality. Employers who fail to carry out nationality or Right to Work checks, and are found to be employing illegal workers are liable to both huge fines and potential criminal sanctions.
Conducting Right to Work Checks
The Home Office has extensive guidance on its website about how employers should carry out Right to Work checks on their employees. Employers must have a standard process for requesting proof from applicants and recording that they have verified someone’s identity. The process should also be fair and applied to all applicants irrespective of nationality, as this helps employees to avoid accusations of bias or discrimination. One factor which many employers miss is that someone’s right to work in the UK is often not permanent. If an applicant only has a temporary right to work in the UK, then their entitlement may have to be re-checked in the future. No checks are required for someone who has indefinite right to work in the UK.
Losing the Right to Work
Dealing with an employee who has lost the Right to Work in the UK can be a tricky scenario for employers. Employers wish to ensure that they are not liable for prosecution or fines for employing illegal workers, but on the other hand, employees who have been with the company for more than two years have legal protection against unfair dismissal. The process must be followed correctly, and often an employer will hire an expert HR company to help them navigate the best way of getting rid of the employee and complying with legal obligations.
Experts advise that these issues are best avoided, if possible, by keeping good records of who has indefinite or temporary right to work, and addressing the situation before the current right expires. Advise the employee that if their Right to Work is not renewed, dismissal might be the only option. Although not having the right to work is a valid reason for sacking a worker, that does not override the employee’s right to a fair process. Furthermore, if an employee then tries to sue the organisation for unfair dismissal, it is important to have records of steps taken and a good paper trail to prove that all required steps were taken before dismissal.
Most employment contracts will have a clause stating that if Right to Work is lost, then the consequence is instant dismissal. Employers don’t have to pay in lieu of notice in these situations. Employers must also make sure that an employee who is being let go because they have lost Right to Work is paid for all work completed, and also receives pay for any holidays accrued and not taken.