11th February 2016
We have all witnessed the chaotic scenes on the news where seemingly waves of migrants are trying to cross borders looking for a better life. Some are seeking sanctuary but others are economic migrants looking for a job in the UK. Unsurprisingly, the government is now cracking down on businesses, and the emphasis on targeting those who employ illegal workers has been stepped up.
Under section 15 of the Immigration, Asylum and Nationality Act 2006 an employer may be liable for a civil penalty if they employ someone who does not have the right to carry out the work in question. Employers have a duty to prevent illegal working in the UK by people who are subject to immigration control. Where this is not complied with, an employer may face a financial penalty (civil penalty) and in some cases, prosecution.
HR and Payroll departments should work together to ensure that all employee data recorded in the on boarding process is complete and accurate, and Right to Work checks are passed – this blog gives guidance on implementing a process to avoid foul of illegal recruitment. The worst thing would be to employ someone and get them onto the company payroll only to have to undergo scrutiny, checks and backtracking on finding out they should not have been employed.
Having the right checks in place to avoid illegal employment
It is a legal requirement that every employer in the UK must undertake a Right to Work Check on all employees before they start work. Employers who engage an illegal worker can face a maximum penalty of £20,000 for each individual who doesn’t have the right to work in the UK, or a prison sentence.
Employers must check that all documents are genuine, original and unchanged and belong to the actual candidate. This includes checking the dates for the candidate’s right to work in the UK haven’t expired and photos are the same across the documents and it is a true likeness to the applicant. Date of birth should be checked, as should the permissions which the applicant has to work in the role that you are offering.
The checks themselves can be a lengthy and time consuming process, but should form part of the verification that the organisation undertakes prior to confirming employment with the candidate. Undertaking the checks on the day that the employee begins work is not an option, and can result in the repercussions mentioned above.
These checks should be carried out by HR with copies of the documents being retained on employee records for the duration of the individual’s employment and for two years after termination of the contract. Interestingly HR teams are often ill equipped to handle the checks and wouldn’t know whether a genuine looking documents like a passport, actually is genuine. There are a number of organisations that can undertake this work for you, and your outsourced payroll provider may be able to offer guidance on this.
Employers are also expected to carry out annual checks on migrant workers. Many view this administrative task as laborious, particularly where a migrant has permission to work in the UK that is valid for a long period. This information should be shared between HR and Payroll Departments on an ongoing basis so that organisations can keep records up to date and ensure that any employee whose right to work has expired is being handled in the correct way.
Those employers that have the necessary processes in place to manage migrant workers will not be alarmed by having to carry out Right to work checks. However, those businesses that do not have processes in place should ensure that they do so immediately to make sure that they are not falling foul of illegal employment.
For more information on Right to Work click here.
