Fines tripled for employers hiring illegal workers - how to be vigilant

Employers must undertake right to work (RtW) checks when hiring employees. These checks are relatively simple to follow, however a failure to undertake them correctly risks employing an individual with no legal right to undertake the work.

Where such a failure results in the employment of illegal employees, there can be serious implications for an employer, including hefty civil fines, criminal sanctions, business disruption and reputational damage. A comprehensive understanding of the RtW checks is therefore critical.

There are three RtW checks, the use of which will depend on the nationality of the prospective employee, and the documents they provide. Employers should note that RtW checks must be carried out on all prospective employees. The checks must be completed, and the right to work confirmed, before the employee can commence any work for the employer.

The most straightforward way of undertaking RtW checks is to carry out a manual document check. Simply, the employer must obtain original documents from the prospective employee and, in the presence of the prospective employee (in person or via video link), check that the documents are genuine, relate to the prospective employee and demonstrate the right to work as required. The employer must then take copies of the documents, marking the date on which the copies are made.

The Home Office sets out the three types of documents the employer may be presented with in Lists. List A documents demonstrate an indefinite right to live and work in the UK, and need not be checked again. List B, Group 1 documents demonstrate temporary permission to live and work in the UK and will allow the individual to work for the employer up until the expiry of that permission. List B Group 2 documents require the employer to use the Employer Checking Service to obtain a positive verification notice from the Home Office, verifying the prospective employee’s right to work. Where the employer is presented with List B documents, it has a continuing obligation to also check and copy the documents when the permission to work is due to expire (note checks must also be carried out every 12 months for employment commencing between 29/02/2008 and 15/05/2014). We most often see employers fall short of the continuing obligation requirement. Employers should therefore ensure they are familiar with the specific rules around their continuing obligations.

If the prospective employee presents certain documentation, such as a biometric residence card or permit, the employer must use the Home Office online service. The employer accesses this using a share code provided by the prospective employee and checks that the photograph on the online service is the prospective employee in question. They should retain a clear copy of the response obtained from the online check.

The use of a certified identity service validation technology (IDVT) identity service provider, which checks the prospective employee’s documents and provides verification to the employer, is also an option, where the prospective employee is a British or Irish citizen. The employer should retain a clear copy of the IDVT identity check.

Should it be found that an employee is not in fact legally entitled to work for the employer, the employer has a statutory excuse, if it can demonstrate that it correctly carried out one of the above RtW checks on that employee. This statutory excuse acts as a legal defence against civil penalties and criminal sanctions. Employers should ensure any copies of required documentation are retained throughout the employment and for two years after its expiry. It should ensure these copies are easily available and can be produced to an immigration officer without delay.