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Legislation changes within the Immigration Act has recently seen ‘Right to Work’ checks and ‘Illegal Working’ making headline news. It is unlawful to employ an individual who does not have the appropriate right to live and work in the UK or who is working in breach of their conditions of stay in the UK.

RighttoworkFor industries that tend to rely on foreign workers to provide and maintain a service, they have been strongly urged to carry out more thorough right to work checks on current and potential workers.

The Law

With effect from 12 July 2016 the Immigration Act 2016 has been amended to ensure that any business who employs an illegal worker will receive penalties and criminal liabilities. Failure to carry out the correct Right to Work checks before employing someone and failure to retain any copies of right to work documents will face the following;

• A civil penalty of up to £20,000 for each illegal worker
• A criminal offence committed where an employer has ‘reasonable cause to believe’ they are an illegal worker

Document Checking

Employers are encouraged to familiarise themselves with the process in checking ‘Right to Work’ documents and at EST we stress to our clients that this should ideally start during the recruitment process. Where applicants are required to declare whether they have the right to work in the UK, employers should ensure they are requesting documentation fairly and consistently from all applicants to avoid potential discrimination claims.

We advise clients to make ‘satisfactory completion of right to work’ a condition in any offers of employment. We will also ensure that contracts of employment state that employees should report any changes to immigration status and express right to terminate the contract if the employee is found not to be entitled to work in the UK.

The types of documents that must be checked will depend on the potential employees right to live and work in the UK. Employers are expected to check that these documents are the originals and genuine, the workers ‘right to work in UK’ has not expired and they have the right to do the type of work being offered. Employers are also expected to retain copies of such documents and record expiry dates for any follow up checks.

A useful three-step checks that employers can use are as follows;

1. Obtain the employee's original documents as prescribed in the Home Office guidance.
2. Check in the presence of the employee that the documents are original and valid.
3. Copy and keep the documents securely and record the date of the check and date for follow-up checks.

We would always advise that where prospective employees are not able to produce documents with this information, they should not be recruited. The checks must be carried out before the employment begins. Conducting the checks on the day that they start work is too late.

Brexit

A final note on right to work and Brexit. Until action is taken to exit the European Union, employers should not make any changes to their recruitment practices in employing EU Nationals. To place restrictions on recruiting EU Nationals while Brexit decisions are still pending would pose a risk of discrimination claims.

If you need help with recruitment, contracts and handling any issues relating to Right to Work, please get in touch with the EST HR team.

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