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Get your Right to Work checks right

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We have written about Right to Work checks before, but as Immigration solicitors in London with top employment solicitors making up part of our team, the importance of getting right to work checks right is something that we’re very much aware of. Our UK employment lawyers are well aware of the importance of keeping on top of the right to work checks – the penalties for non-compliance can be significant, including heavy fines. As a result, we keep our eyes on the Home Office Guidance –updated in June 2018 and are keen to keep employers abreast of any changes relating to the right to work in the UK.

Right to work in the UK

The right to work in the UK depends on your status as a British citizen, or your Immigration status. Not all forms of permission to be in the UK allow the holder to work. Carrying out rigorous right to work checks also helps identify individuals in the UK without the correct Immigration status and discourages illegal working in the UK.

The right to work checks

The UK’s right to work check requirement applies to all employers. It imposes a duty on every single employer to check that every single employee has the right to work in the UK. There’s a straightforward 3 step test involved. As employment solicitors in London, we’d encourage every employer to embed the right to work checks into their recruitment processes to ensure compliance. Non-compliance can be an expensive business, with the Home Office. Civil penalties can be a fine of up to £20,000 per illegal employee you are found to be employing; criminal penalties can include a jail term of 5 years and an unlimited fine.

Given the consequences of non-compliance, getting the right to work checks right is a shrewd move, particularly so given that the check is relatively simple.

1. Obtain the employee’s original documents evidencing the right to work in the UK.

A list of acceptable documentation is set out on the website and includes a British passport, EU/EEA passport or national identity card, a current biometric residence permit and a certificate of registration as a British citizen along with an official document detailing the individual’s National Insurance number. You must have the original documents. The Home Office won’t accept a scanned version if they come to audit you.

2. Check the documents with the employee present

Just as you need to see the original documents, you must check them with the employee present with you. While you’re not expected to be an expert in document forgery, you are expected to look out for obvious signs that the document might have been tampered with, and to check that the employee is the same person as that detailed in the passport. Doing the checks in person (and not by Skype as some people have suggested) is a vital part of the right to work check process.

3. Make a copy of the relevant document and keep it safe

Sign and date the copy and file it as you see fit – whether as a scanned pdf or in hard copy. Make sure it is easy to access your right to work check records in the event of a Home Office audit.

The process really is straightforward and shouldn’t be too onerous. One last point that should be remembered – carry out the check before the employee starts work. If it’s not possible for the individual to come into work in the days before the ‘start date’ perhaps make it a priority on day one, giving the employee an appointment with HR to get the check carried out before he or she is due to arrive for any induction.

Latest changes to the Right to Work checks

For those of you already carrying out right to work checks as a matter of course, it’s always worth keeping an eye on the Home Office guidance on the checks to ensure you are complying with the latest rules. The guidance was last updated in June 2018 and included a few changes worth taking on board.

Lawful residence with no evidence

It is possible that you will come across an employee who has been lawfully resident in the UK since 1988 but has no documentation that is acceptable for the purposes of a right to work check. The latest guidance clarifies that the employer should contact the Employers Checking Service who will in turn get in touch with the employee. The outcome of this should be that the employee’s status will be resolved and the employer will receive a Positive Verification Notice confirming the right to work.

Existing employees

The Home Office has indicated that ‘follow up’ checks are only required for employees who have a time limited Immigration status.

If an employee has been working continuously since before 29th February 2008, there is no need to carry out a right to work check.

TUPE transfers

TUPE operates to transfer employees from one employer to another in certain circumstances, for example on the sale of a business, or when a service contract changes from one provider to another. In this case, the new employer should carry out right to work checks again, otherwise he or she risks being liable for a penalty arising from the fault of the previous employer in not carrying out checks correctly. The new guidance confirms that there is a 60-day grace period for the new employer to carry out the right to work checks on transferring staff.

Croatian Nationals

Croatian nationals can now work in the UK without restriction (with effect from 1st July 2018).

For any employer concerned about the right to work check and worried that they do not have a process in place to ensure that they are fulfilling their obligations, it is worth taking advice from an experienced UK Employment lawyer to make sure you can develop a process and embed it in your organisation. You will be better placed to withstand a Home Office audit and avoid civil and criminal penalties associated with failing to carry out the correct checks and for knowingly employing illegal workers.

For more information on the right to work checks, or to speak to one of our top employment lawyers in London, call 0203 959 9123 in confidence.

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