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.