29th April 2016
CVs, covering letters, application forms, interviews, recruitment fees…
There are so many things to think about when you’re hiring a new employee. It’s possible that you might forget one or two things, but forgetting the essential Right to Work checks could leave you £20,000 worse off!
Ready to hire? Check their right to work!
That new job applicant looks great on paper – their CV fits the job description, they’ve impressed on their application form and their covering letter explains that they’ll be perfect for the role. What more could you ask for?
If you don’t ask about a job applicant’s right to work in the UK, and if you employ them when they don’t have that right, then you risk a civil penalty of up to £20,000. The fines apply even if your new employee used to have the right to work, that has since expired.
£20,000 is a very significant figure for any business. It applies to each illegal worker, so not carrying out the required checks could actually land you with a much bigger fine.
What happens if you employ an illegal worker?
Employing an illegal worker might lead to the arrival of a referral notice. Your case will then be considered. This could potentially lead to a fine of up to £20,000, for each illegal worker that’s employed by your business.
You won’t have to pay the fine if you can prove that you did the relevant checks. It may be that you’ve been given some very convincing fraudulent documents, or that you’ve been told incorrect information by a trusted authority. You’ll need the evidence, including dates of any checks, to show that you’ve done what you should.
If you’re knowingly employing an illegal worker, the penalties are potentially much higher. Fines for this are unlimited, and you might also receive a jail sentence for up to two years.
If you’re found to be employing someone with no legal right to work in the UK then your business details might be used as an example, published by Immigration Enforcement as a warning to others. On top of everything else that you’re facing, this could hit your company’s reputation.
How can you check that the person you’re hiring can legally work in the UK?
The GOV.UK website features an online tool that you can use as a guide, to walk you through the process that you can use to check for evidence. The tool will guide you through the types of evidence that you can accept, going step by step to help you to clarify an applicant’s status. This is likely to be the easiest way to make sure that you’re using the right evidence, and to avoid accidentally hiring someone that can’t provide what’s needed. You simply select ‘Yes’ if a piece of evidence has been provided by an applicant, and ‘No’ if you’d like to move on.
Remember that illegal workers might have been legally allowed to work in the UK at some point previously, but may have an expired visa. You need to check all original documents, not photocopies or edited papers. You’ll also need to record the dates that you checked the documents, and will have to make copies of the evidence.
If you’re found to be employing an illegal worker, the dated copies will be your proof that you kept up your legal responsibilities.
You should check that:
- Documents haven’t been changed or altered in any way.
- All forms of photo ID look like the applicant.
- Dates of birth are consistent across all documents.
- All documents are valid for the current date.
- The applicant’s right to work specifically covers the type of work that you’re offering. This includes checking limits on the number of hours that they can work.
- The applicant can provide additional supporting evidence if their name doesn’t match the document that they’re providing (for example, if they’re married or divorced).
- The applicant, if they’re a student, can provide evidence of when they’re studying. This needs to be evidence of the student’s specific term dates and exam dates; a general list of the institution’s term dates cannot be accepted as evidence.
What happens once the checks are carried out?
You need to make copies of any evidence that you’ve been provided with. This evidence should be dated, and needs to be kept for the duration of the employment plus a further two years.
Some types of evidence will show a permanent right to work in the UK. If you’re dealing with documents that show a temporary right, such as a student visa, then you’re responsible for repeat checks in the future. You should do these checks as close as possible to the expiration date of any existing evidence, but:
- It’s important not to let evidence run out. Don’t go past the expiration date without gathering new documents.
- Give your employee time to gather and present the new evidence, so that any issues have time to be resolved.
What if the job applicant can’t provide appropriate evidence?
The Home Office can run a check on your behalf if there’s an outstanding appeal or application, if the applicant has an Application Registration Card, or if they hold a Certificate of Application that is less than 6 months old.
You’ll receive a Positive Verification Notice if the Home Office can confirm an applicant’s right to work. Like any other evidence, this needs to be safely kept.
The Positive Verification Notice protects you for 6 months, after which you’ll need to run another check.
What happens with transferred employees?
If an employee has been transferred to you from elsewhere, you’re still responsible for right to work checks. In this case, you’ll need to act within 60 days.
With step-by-step guides to help you through the process, there’s no reason not to do the correct Right to Work checks. Remember that you can download the Right to Work Checklist, as an alternative to using the GOV.UK tool, and that all documentary evidence should be kept in accordance with Data Protection laws.