Right to work checks

The recent case of Baker v Abellio London Limited has highlighted the difficult ground employers tread when trying to comply with their obligations in respect of only employing workers with the right to work in the UK. There is a clear tension between employment law, specifically discrimination legislation and the law surrounding unfair dismissal, and the huge burden placed on employers by the Home Office.

The current position

It has long been the case that the Home Office has been creating a “hostile environment” for illegal immigrants. As part of this, employers are drafted in as back up to the Home Office’s own efforts to discourage illegal migration. The Home Office believes that if it is made difficult for illegal migrants to take employment, this will have the effect of dissuading individuals to enter and remain in the UK illegally. To achieve this, employers are subject to tough penalties if they are found to be employing illegal workers, such as civil fines of up to £20,000 per illegal worker. Further, if an employer is found to be knowingly employing an illegal worker, or has reasonable cause to believe the worker does not have the right to work in the UK, the employer can face criminal sanctions of up to 5 years in prison and an unlimited fine. In addition, the Home Office also have the right to issue closure notices and obtain compliance orders meaning that access to an employer’s business premises can be prohibited.

A potential defence for employers

Employers have a defence to the potential penalties if they can show that they conducted right to work checks before employing an individual, and that they took and retained copies of the documents that were checked. The checks aren’t as simple as having a quick look at a passport or birth certificate, as employers are required to check that the original documents aren’t “reasonably apparent” forgeries. This means an employer should:

  1. properly inspect the document;
  2. check the details against the person’s appearance; and
  3. check that the document does not appear to have been tampered with.

A copy then needs to be taken and retained with a record of when the copy was taken. An employer should make sure that these are readily available in the event of a check.

The future

Going forward, employers should make efforts to ensure they have good processes in place for obtaining this information prior to an individual starting employment. This should include having  systems that are able to store the information securely and keep up to date with the expiry of any information and the need to re-check the individual’s status.

Once the UK has left the EU, there might also be the need for employers, who traditionally have not required sponsor licences, to become sponsors in order to fill any gaps in their workforce. Right to work compliance is something the Home Office will review as part of their pre-licence application process, so employers should be prepared for a Home Office  visit to their business premises as part of this process.

At MLP we are able to help with training your staff on how to conduct right to work checks, as well as carry out audits to check that you are currently compliant. If you would like to know more please email employment@mlplaw.co.uk. Alternatively, please call 0161 926 9969.

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