Pursuant to section 15 of the Immigration, Asylum and Nationality Act 2006, the Home Office regularly issues civil penalties to organisations that employ individuals who do not have the right to work in the UK and that have not carried out checks in accordance with the Home Office guidance.
The Home Office does not differentiate between permanent, fixed term, casual and other types of employment. As far as the Home Office is concerned, if the individual is an employee of the organisation, the organisation is responsible if there is a failure to comply with right to work legislation.
We recommend that organisations treat workers they employ on a casual basis and workers who are employed on a permanent basis in the same way when it comes to carrying out checks to ensure they have the right to work. The check should be carried out before the employment commences and copies of documentation should be taken and placed on file. Repeat checks should be made in accordance with the Home Office guidance.
Universities in particular often employ large numbers of casual workers, including Tier 4 sponsored students. We recommend that a clear system is implemented by the HR department to ensure that checks are carried out thoroughly and consistently on all those who are employed by the University and who appear on the University’s payroll. In the case of Tier 4 sponsored students, in addition to the documentation check, regular reviews should also take place to ensure that students are not working in breach of their conditions of stay in relation to weekly working hours during term-time.
If such checks are not the responsibility of the HR department, it should be clear as to which department does have responsibility.
Organisations cannot be sanctioned under right to work legislation in relation to employees who carry out work for them but who are employed by third parties.
If you require legal advice on this area of law, please contact us.