Right to work checks

As of 1 July 2021, employers face an increasingly complicated compliance burden relating to right to work checks following the end of free movement for EU nationals post-Brexit.

Since that date, EU nationals can no longer rely on their EU national passport as proof of their right to work, and the increasing complexity of the checks means that, more than ever, businesses need to make sure they understand their legal obligations and are carrying out the checks properly. If they fail to do so, they risk significant penalties and reputational damage. These risks apply to businesses of all sizes, including small family run businesses.

What are my legal obligations to check an employee’s right to work?

All employers in the UK have a responsibility to prevent illegal working. Employers have a legal responsibility to check all prospective employees have the legal right to work in the UK in the role in question before they start work.

As employers you must:

  • Comply with the Home Office’s Right to Work Checks Guidance on how to carry out right to work checks, ensuring the most up to date Guidance is used for each check;
  • Conduct follow up checks were necessary;
  • Keep proper records of the checks carried out for the duration of the employment and for two years afterwards;
  • Not employ anyone you know or have reasonable cause to believe is an illegal worker;
  • Comply with sponsor duties if you hold a sponsor licence permitting them to recruit overseas Skilled Workers; and
  • Not discriminate when carrying out the checks.

Where checks are carried out in line with Home Office guidance, you as an employer will benefit from a ‘statutory excuse” from any illegal working penalty. In other words, a business that has carried out these checks properly will not receive an illegal working penalty should the Home Office find illegal workers in the workforce.

Consequences of getting it wrong

Legally, the consequences of employing illegal workers are significant and can impact your business in a number of ways. Possible sanctions include:

  • A civil penalty fine imposed on your business of up to £20,000 per illegal worker.
  • In serious cases, a criminal conviction for the owners or directors of your business personally, carrying a prison sentence of up to five years and an unlimited fine for the business.
  • Closure of your business and a compliance order issued by the court;
  • Disqualification from being able to act as a director, which means restrictions on being able to hold directorships of any companies for as long as the disqualification lasts;
  • Your business may be prevented from sponsoring migrants – which means you will not be able to recruit talented individuals who might require sponsorship to work for the business;
  • Seizure of earnings made as a result of illegal working; and
  • Depending on the sector, your business may lose its licence to operate. For example, an illegal working penalty may result in the loss of a Gangmasters and Labour Abuse Authority licence. Similarly, businesses operating in the alcohol and late-night refreshment sector or the private hire vehicle and taxi sector, may lose their licences where illegal working is discovered.

Not only can the employment of illegal workers disrupt the operations of your business, it could also result in irreparable reputational damage. The Home Office publishes the names of all businesses who have been issued fines for employing illegal workers, including the number of illegal workers found and the value of the penalties that have been issued on a quarterly basis. This regularly attracts media attention.

In some circumstances, an illegal working penalty can impact your business’ health and safety provisions, and/or safeguarding obligations along with potentially invalidating its insurance. This is particularly the case where the business has relied on employees being truthful as to their identity, qualifications or skill levels and these turn out not to be as claimed.

Common pitfalls

You should ensure that legally compliant right to work checks are conducted for all employees before their employment begins and be satisfied that all potential employees (regardless of their ethnicity or nationality) are legally allowed to undertake the work in question. Importantly, the check must happen before employment starts, or the check will not be effective to protect the business should anyone later be found to be working illegally.

All job applicants should be treated the same way at each stage of the recruitment and onboarding process to avoid the risk of discrimination claims based on ethnicity or nationality. Making sure that consistent policies are applied across the business will minimise the risk of discrimination claims.

The responsibility for conducting right to work checks rests with your business as the employer, and it cannot be delegated. This means that legally, businesses cannot rely on these checks being carried out by third parties such as recruitment agencies or ID verification companies, even where these companies claim they can undertake checks on behalf of the business. Where checks are not carried out in the proper way or don’t reflect the changes implemented on 1 July 2021, your business will have no defence to any illegal working issues that might arise and will potentially face all of the consequences outlined above.

Advice and Support

Our team of employment law and business immigration experts are highly experienced in preparing and drafting policies to suit the needs of businesses of all sizes. We also have extensive experience in helping and assisting with any queries as and when they arise or managing any illegal working issues that may be discovered.

We can help your business to address existing issues by auditing historic right to work checks, along with updating employment contracts and policies to make sure that they are fully compliant with the right to work checks post-Brexit.

Our exclusive offer to you

We are pleased to offer a special package at a reduced, fixed rate of £350 plus VAT to help you ensure you are meeting your legal obligations and your business is protected. Our offer includes:

  • An audit of 10 employee files for right to work check compliance;
  • Providing a formal traffic light compliance report; and
  • Recommendations to safeguard the position of your business going forwards.

If you are interested in finding out more, please contact a member of the Employment or Immigration Team or visit our dedicated Family Business page.