All
UK employers are required by law to complete adequate Right to Work document
checks for every employee – meaning every UK employer is at risk of Home
Office civil penalty for illegal employment, should they be found to have failed in their duties.
The
ramifications of a civil penalty for illegal working are not to be downplayed.
Employers
face a fine of up to £20,000 per breach, among other sanctions depending on the
circumstances of the breach: enforced debt action; revoked sponsor licence; inclusion on the Home Office’s civil penalty offender
list; and even criminal prosecution.
A widerspread business headache
On
average, the Home Office issues 220 civil penalties per month against
businesses across the UK.
Each
quarter, the total value of fines issued for illegal working typically reaches
tens millions of pounds.
These
figures give a sense of the scale of civil penalty regime enforcement, and the
susceptibility of businesses to being caught out if failing to meet the legal
requirements.
The
general assumption is that it's smaller businesses at greater risk of a
civil penalty for illegal working. Businesses such as independent restaurants and
shops, and the leisure and construction sectors. Companies without access to HR
resource or where there is a lack of awareness or understanding of their
immigration duties. Ignorance of the rules however offers no defence to
employers.
The
Home Office however can – and does – extend its reach to larger, corporate
entities. Companies invariably with access to greater resources such as HR
teams, but where a process oversight, omission or a poor judgement call leading to a breach can
still attract the full brunt of UKVI enforcement.
The
reality of UK Right to Work duties are undoubtedly onerous on employers, and for larger
organisations it becomes a matter of balancing compliance of pre-employment
processes in a cost-effective way while also avoiding any
accusation of discrimination under the Equality Act 2010.
This
area is rife with legal risk for employers. Hiring someone on the basis of
forged documents? What if the individual cannot produce the required
documentation? Are the checks being applied consistently to all employees to
avoid accusations or even claims of discrimination?
Right
to Work Compliance Risks for Larger Businesses:
Practical advice for bigger companies when managing Right to Work compliance risk:
1. Fair
recruitment process
It
should be made to clear to all applicants as part of the recruitment process
that they will have to provide original documents confirming their Right to Work. This is to be applied across the board to all applicants that are
short-listed.
Successful applicants
should be given sufficient opportunity to prove their right to work, including, where possible, having the job kept available for them
while they procure the documents that demonstrate their permissions.
2. Employees
with time-limited permission to work
To comply with your duty as an employer to prevent
illegal working, every employee should be onboarded in line with the Right to
Work requirements to ‘Obtain, Check and Record’ acceptable documents from
either 'List A' where an individual has an ongoing Right to Work in the UK or,
where the individual has time-limited permission Right to Work, from 'List B'.
The potential for List B employees’ working
status to change during the course of employment creates an area of risk for employers which necessitates close and careful management.
Scheduling regular checks
requiring employees with time-restricted permission to present the
required documentation and proof of continued Right to Work.
3. Applicants
or employees unable to produce required Right to Work documentation
If
an applicant or employee is unable to produce the required documents under the
relevant List, employers should first make enquiries through the Home
Office’s Positive Verification Notice service before assuming the individual
does not have the necessary permissions to work.
4. Internal
knowledge
A
scenario we commonly see is where there has been a change of HR personnel or
those responsible for onboarding new employees. The HR manager leaves and takes
their internal process knowledge with them.
All
policies and processes should be well documented and easily accessible.
Training should be held and 'topped up' regularly. For
example – employers are expected to take reasonable steps to verify the
authenticity of the documents produced for this purpose.
While
employers are not expected to be experts in identifying forged documents, it
can help to minimise risks if employees understand some obvious signs. The
infamous Byron Burger raids in 2016 for example centred on employees having
presented forged documentation, which Byron had accepted as valid.
We
offer specialist anti-forgery training for business owners, HR teams, line
managers and others involved in Right to Work document checking.
5. Multi-site
locations
Businesses
operating from multiple sites face the additional challenge of ensuring staff
involved in recruiting and onboarding at the local level (eg. site managers,
line managers) are trained in and implementing organisational Right to Work
processes.
6. Employees
who lose their Right to Work
We
recently wrote about what to do when you become aware that an employer has lost their
Right to Work. Perhaps
counter-intuitively, in most cases instant dismissal is not usually advisable
without first undertaking further investigation, so your next steps will be determined by the specific
circumstances and the reasons for the loss of permission.
Stay Right to Work compliant
An
immigration audit of your Right to Work processes will assist in ensuring your recruitment,
onboarding and ongoing immigration compliance is fit for purpose and not
exposing to you Home Office scrutiny or wider legal risk.
Get
the process right, and you can ensure consistent, effective implementation for
compliance across all your UK operations to avoid unwanted Home Office scrutiny and penalty.
DavidsonMorris is a firm of specialist immigration solicitors advising on all aspects of business immigration, including sponsorship licences, civil penalties, Tier 1 Entrepreneurs and Tier 1 Investors.