The continuing importance of carrying out right to work checks on all employees

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Summary

The rights of EU nationals working in the UK remain uncertain. We are awaiting confirmation of what documentation they will require to prove any ongoing right to work once the UK leaves the EU. What is certain is that it will remain important for employers to continue to check the eligibility of all their employees to work in the UK.

Issues

Employers have a duty to prevent illegal working. It is a criminal offence if employers know or have reasonable cause to believe that they are employing an illegal worker. Further, employees can be liable for a civil penalty if they have failed to carry out document checks correctly, or at all, and they are found to have employed someone who does not have the right to work. If an employer is liable for a civil penalty, it could affect its ability to sponsor migrants who come to the UK in the future. The document checks should be undertaken for all potential employees. All job applicants (whatever their perceived nationality) should be treated in the same way at each stage of the recruitment process to avoid an employer discriminating against anyone. An assumption should not be made about a person's right to work in the UK based on their colour, nationality, ethnic or national origins, accent or length of time they have been resident in the UK.

Decision

To avoid liability for a civil penalty or criminal prosecution, employers should therefore be undertaking right to work checks for all employees. An employer will still be liable for a civil penalty even if a third party carries out the check (for example a recruitment agency) if the former is the actual employer.

What does this mean for employers?

Employers should carry out a three-step check. The three basic steps are:

  1. Obtain original versions of one or more acceptable documents.
  2. Check the documents' validity in the presence of the holder of the documents.
  3. Copy and retain a clear copy, and record the date the check was made.
  1. Obtain documents An employer should obtain original acceptable documents. The documents are set out in two lists. The first list, List A, lists acceptable documents that establish a person has a permanent right to work in the UK. If a right to work check is conducted correctly before employment begins, an employer establishes a continuous statutory excuse for the duration of the person's employment. Examples of documents include a passport of a British citizen, or currently an European Economic Area country or a current Biometric Immigration Document indicating the person has indefinite leave to remain. The second list, List B, lists acceptable documents where a person has a temporary right to work in the UK. If a right to work check is conducted correctly a time-limited statutory excuse lasts until the expiry date of leave. The check should be conducted again when the permission comes to an end to recheck their status. Acceptable documents include a current passport or Biometric Immigration Document indicating a right to stay in the UK and work.
  2. Check documents
    An employer should check the documents are genuine and that the person presenting them is the prospective employee or employee, the rightful holder and allowed to do the type of work the employer is offering. An employer must check that:
    i) photographs and dates of birth are consistent across documents and with the person's appearance in order to detect impersonation. This can be done by physical presence or via live video link;
    ii) expiry dates for permission to be in the UK have not passed; 
    iii) any work restrictions to determine if they are allowed to do the type of work on offer;
    iv) the documents are genuine, have not been tampered with and belong to the holder; and
    v) the reasons for any difference in names across documents (e.g. original marriage certificate, divorce decree absolute, deed poll). (These supporting documents must also be photocopied and a copy retained.)
  3. Copy documents
    An employer must make a clear copy of each document in a format which cannot manually be altered, and retain the copy securely, either electronically or in hard copy. An employer must also retain a secure record of the date on which it made the check. Copies must be retained for not less than two years after the employment has come to an end. The copy must then be securely destroyed.

TUPE
The above obligations should not be overlooked when dealing with a TUPE transfer. The TUPE Regulations provide that right to work checks carried out by the transferor are deemed to have been carried out by the transferee. However, a transferee will have to satisfy itself that the checks were correctly carried out and ensure it has a record of when checks need to be repeated for any employee with temporary permission to work in the UK. If an employee is found to be working illegally, the transferee will be liable. For these reasons we advise that transferees undertake their own right to work checks. The Home Office gives transferees 60 days from the date of the transfer of the business to carry out the checks in respect of new employees who have transferred.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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