Right to Work Checks
Employers and Tier 2 sponsors can face penalties under under illegal working legislation in the UK. If employers are found to be employing an individual who does not have the right to work in the UK they could face a significant civil penalty of up to £20,000 per illegal worker.
Right to work: What is required?
Other than sponsor licence holders, employers are not legally required to carry out right to work checks. However, those that do so in line with the Home Office guidance will be able to establish a ‘statutory excuse’ against liability for a civil penalty. This means that the employer will not receive a civil penalty if they are found to be employing someone who does not have the right to work in the UK as long as the correct document checks have been conducted.
The documents that the Home Office deem acceptable as proof of an individual’s right to work are laid out in List A and List B. If an employer is to successfully establish a statutory excuse they must carry out the right to work check before the individual commences their employment.
In order to properly perform the right to work check the employer should obtain the original version of one or a combination of acceptable documents as outlined in List A and List B. The employer will then need to check that the documents are valid before making and retaining copies of the document(s) along with a record of the date on which the check was made.
List A and List B refer to particular features of the document that need to be present in order for the document to be valid. For example, an endorsement demonstrating that the worker is allowed to stay in the UK indefinitely must be contained within a current passport. Therefore, Indefinite Leave to Remain vignettes contained in passports that have time expired are no longer acceptable as evidence of right to work in the UK and as such would not allow the employer to establish a statutory excuse.
Under the Tier 2 Sponsor Guidance it is a sponsor duty that right to work checks are carried out and it is a sponsor’s responsibility to ensure that the sponsor system is not abused. Employing illegal workers or failing to carry out a right to work check, could lead to a sponsor licence suspension or revocation.
Right to Work Checks: How can we help
Many employers in the UK are aware of their duties under the right to work legislation and as such are already conducting checks in line with the Home Office requirements. However, the Home Office often make changes to the legislation and relevant guidance without providing an announcement or prior warning which may result in an employer failing to establish a statutory excuse.
We are able to provide advice and guidance in relation to an employer’s duties under the right to work legislation to ensure that they are complying with their duties and are able to establish a statutory excuse when necessary.
If your organisation requires legal assistance or if you would just like to discuss your situation with one of our experts on a no-obligation basis, please contact us.