Avoiding Fines for Employing an Illegal Worker in the UK
With fines of up to £60,000 for each illegal worker employed by a company, it's crucial that UK employers understand what illegal working is and how to avoid fines or civil penalties.
In this article, our UK Immigration Solicitors and Employment Lawyers outline how best to avoid fines and civil penalty notices under illegal working legislation.
Contact OTS Solicitors for expert legal advice.
Civil penalties for illegal working
A company will face a fine or a civil penalty if it employs, or continues to employ, a worker who does not have the right to work in the UK.
Fines are not based on the company's turnover or its ability to pay. Instead, the fines are deterrent-based, and the amount applies to each worker found to have been working without the right to work in the UK.
The fine for a first offence is £45,000 per worker. The fine per worker rises to £60,000 for repeat offenders.
Unfortunately, even companies committed to complying with the illegal working legislation are at risk of a fine, as a business does not need to have criminal intent or be negligent to warrant one. Under the illegal working legislation, a civil penalty notice can be issued even if a genuine mistake was made in administering a right to work check, or if a check was missed due to staff shortages or other innocuous reasons.
The law on illegal working
The law on illegal working is found in the Immigration, Asylum and Nationality Act 2006. An employer will not be liable to a civil penalty notice for employing a person who does not have the right to work in the UK if the employer carried out a right-to-work check in accordance with the latest guidance and kept a record of it. This is referred to as a statutory excuse.
The statutory excuse
All employers need to have evidence of their statutory excuse in case an employee is subsequently found not to have the right to work in the UK.
The recruitment process can take a long time to complete, and in the rush to onboard a new employee, these checks can get overlooked. Alternatively, completing a right-to-work check using outdated policies doesn’t provide a statutory excuse and leaves an employer vulnerable to a civil penalty notice.
Avoiding civil penalty notices for employing illegal workers
To the average person, avoiding fines for employing illegal workers is simple: don’t employ anyone who does not have the right to work in the UK. Experienced Immigration Solicitors and Employment Lawyers know that it isn’t that simple.
The most well-organised company has scope for human error in the following of well-documented procedures or compliance with complex regulations. Even without the human error element, there is plenty of scope for things to go wrong in a business that knows the financial, business and sponsorship ramifications of receiving a civil penalty.
Tips for avoiding civil penalty notices
Here are our ten tips for avoiding civil penalty notices:
- Get buy-in from all HR staff and key personnel on the legal requirement for right-to-work checks and the consequences for the firm and for the employee if the checks are not completed correctly.
- Ensure the staff carrying out the right to work checks get regular training and updates on best practice, or outsource the conduct of right to work checks.
- Regularly update training, induction and onboarding policies.
- Make sure any new staff are not allowed to commence their employment before right to work checks are completed, and allow no exceptions.
- School those carrying out the right to work checks to check physical documents against the worker. Staff must flag if the recruit does not match the person on the identity documents, as impersonation can occur.
- Ensure systems are in place to reduce the risk of right-to-work checks being completed but not fully documented, such as missing the date of completion of the check.
- Have systems in place to diary up when there is a requirement to carry out repeat right-to-work checks.
- Conduct internal reviews and audits of how right-to-work checks are being completed.
- Ensure those authorising overtime and promotions understand the need to ensure that the worker has the necessary right to work if invited to carry out additional work or receive a promotion.
- Encourage HR staff and key personnel to share their ideas on how to improve systems to make them fail-proof and to self-report if they spot errors in right-to-work checks when reviewing HR files.
Working with HR and key personnel
At OTS Solicitors, our Sponsorship Licence Lawyers work closely with in-house HR teams and key personnel. When providing a Sponsor Licence Management Service, in-house training or internal compliance audits, we regularly find:
- Junior HR and Level 1 and 2 users know about the need to complete a right to work check, but do not have an awareness of the importance of the check to the company. If the seemingly mundane task of completing a right to work check is not carried out or is not recorded properly, the business could lose its sponsor licence, resulting in all its sponsored workers having to leave their sponsored employment, reputational damage to the company and potentially the loss of non-sponsored jobs as well as the personal employment ramifications for the employee if they did not follow documented procedure.
- There is an embarrassment factor in calling out queries about identity in case staff are criticised for questions about facial images or wrong in their suspicions about impersonation.
- There is a concern about reporting previous errors in the completion of right-to-work checks in case of blame.
- Diary systems can easily be forgotten, so repeat right-to-work checks are missed.
- Key personnel are not always informed about changes to recruits' start dates, so staff can be unaware of the deadline for completion of the right to work check.
Talk to OTS Solicitors
At OTS Solicitors, our team of Sponsorship Licence Lawyers provide specialist, proactive legal advice for companies on right-to-work check systems. The advice can be ad hoc, when your business is applying for its first sponsor licence, after the Home Office has raised compliance issues, as part of our Sponsor Licence Management Service, or as part of a bespoke training or employment law advice package.
We tailor the legal advice your business requires on right to work checks to ensure your company receives pragmatic, commercial advice to comply with illegal working legislation, the latest developments in digital right to work guidance, and sponsor licence compliance.
Contact OTS Solicitors for expert legal advice.
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