18th February 2016
With 1m migrants coming to Britain in the past five years the government is now cracking down on businesses, targeting those who employ illegal workers. Nearly one in nine workers in the UK is now a foreign national after the number of EU migrants surged to 2million in between September and December last year. The migrant surge poses a big question for companies is now ‘How do I effectively check whether they can legally work here on not?’
The topic continues to be hot in the national press at the moment with the unprecedented migrant crisis showing no signs of abating. 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.
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 civil financial penalty and prosecution. Section 15 of the Immigration, Asylum and Nationality Act 2006 covers all of an employers responsibility. There are now around 3million foreign nationals working in the UK, compared to 28million British workers, so one in ten. However these figures are based on official DWP data. With some migrants slipping past official channels on incorrect or false documentation this will be an increasing challenge for employers.
HR and Payroll departments need to work together to ensure that all employee data recorded in the on boarding process is complete and accurate, Right to Work checks are passed and processes are implemented and robust to avoid falling 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.
HAVE YOU GOT 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.
For more information on Right to Work click here.