Right to Work Checks – Do you know employers’ responsibilities?

In the United Kingdom, employers have a legal responsibility to ensure that their employees have the right to work in the country. This is known as the Right to Work check.

Do you understanding the employer’s responsibility in conducting Right to Work checks? With legal consequences and immigration law compliance at stake, MyVetting will set out employers obligations and analyse what this means for employers and potential employees.  

What is a Right to Work check? 

A Right to Work check is the process conducted by employers in the United Kingdom that confirms potential employees have the legal right to work in the country.

A Right to Work check will verify an individual’s immigration status and their eligibility to work in the UK.  It confirms that a prospective or existing employee has the necessary documentation and permissions to undertake employment legally. The process involves examining original, unexpired documents provided by the employee, such as passports, residence permits, or Biometric Residence Permits, to validate their right to work. 

For employers, Right to Work Checks ensure that employers will: 

• Be Legally Compliant: Conducting Right to Work checks is a legal requirement for employers in the UK. Failure to comply can result in severe penalties, including fines and even imprisonment for knowingly hiring illegal workers. 
• Avoid Penalties: Employers can avoid substantial fines by conducting these checks, as well as potential damage to their reputation and business. 
• Prevent Illegal Employment: Right to Work checks help prevent illegal employment and maintain the integrity of the immigration system, contributing to national security and fairness in the job market. 
• Support Diversity and Inclusion: Ensuring that all employees have the right to work promotes diversity and inclusion by preventing discrimination based on immigration status. 

Who is responsible for conducting the checks? 

The responsibility for conducting Right to Work checks in the UK lies with the employer. This responsibility applies to both prospective employees during the hiring process and existing employees when their immigration status changes. 

 Types of documents accepted as proof of right to work 

When conducting Right to Work checks in the UK, employers can accept various types of documents as proof of an individual’s right to work. The list of acceptable documents includes: 

1. UK and EEA Passports: These include British passports, EEA (European Economic Area) passports, and Swiss passports.
2. Biometric Residence Permits (BRP): BRPs are issued to non-EEA nationals residing in the UK and are evidence of their immigration status and right to work.
3. Residence Cards and Permanent Residence Cards: These cards are issued to EEA family members and prove their right to work in the UK.
4. Settled and Pre-Settled Status under the EU Settlement Scheme: Individuals who are EEA or Swiss nationals and have successfully applied for Settled or Pre-Settled Status can use their digital immigration status as proof.
5. Visa Stamps and Stickers: These are found in a person’s passport and indicate their current immigration status and work permissions.
6. Certificate of Application: Individuals who have applied for a visa, residence permit, or extension can provide their Certificate of Application as proof of their right to work while their application is being processed.
7. Biometric Residence Card (BRC): This card is issued to non-EEA nationals and contains their biometric data, indicating their immigration status and right to work.

Penalties for non-compliance with Right to Work checks 

 Employers in the United Kingdom who fail to comply with Right to Work checks and knowingly hire individuals without the legal right to work can face civil and financial penalties. These penalties are designed to enforce immigration laws and encourage compliance with the law. 

 Civil penalties 

Civil penalties for non-compliance with Right to Work checks can be significant and vary depending on the circumstances. The penalties are typically imposed as follows: 

First-Time Offence: For a first-time offense, an employer may receive a civil penalty of up to £15,000 per illegal worker. The exact amount depends on various factors. 

Subsequent Offences: If an employer is found to have committed multiple offenses, the penalty can increase substantially, potentially reaching up to £20,000 per illegal worker.  

Mitigation: In some cases, if an employer can demonstrate that they have taken significant steps to comply with Right to Work checks and have a strong track record of compliance, the penalty amount may be reduced.  

Factors That Can Affect the Amount of the Penalty:

Several factors can influence the amount of the civil penalty imposed on an employer for non-compliance: 

Severity of the Offence: The seriousness of the violation, including whether it was a one-time occurrence or a systematic failure, can affect the penalty. 

Knowledge and Intent: Penalties may be more severe if it is determined that the employer knowingly and intentionally hired illegal workers. 

Cooperation: An employer’s level of cooperation with immigration authorities during an investigation can influence the penalty. 

Employer Size: The size of the employer’s workforce and the number of illegal workers can impact the penalty amount. 

Mitigation Efforts: Demonstrated efforts to rectify compliance issues and improve future compliance may lead to reduced penalties. 

Previous Offences: Whether the employer has a history of non-compliance or previous offences can also be a factor. 

 It’s essential for employers to take Right to Work checks seriously, conduct them accurately, and stay informed about immigration laws to avoid penalties. Ensuring compliance not only prevents legal repercussions but also contributes to a lawful and ethical workforce. Employers should seek legal advice in complex cases or if they have concerns about their compliance with immigration laws. 

Criminal penalties 

While civil penalties involve fines, criminal penalties can result in fines and even imprisonment. Understanding the criminal consequences of non-compliance is vital for employers: 

1. Criminal Consequences:

In cases of serious non-compliance or knowingly hiring illegal workers, employers may face criminal charges. This is typically pursued when there is clear evidence of intentional and systematic disregard for immigration laws.  

2. Potential Fines:

Criminal convictions for employing illegal workers can result in substantial fines. The amount of the fine varies based on the specific circumstances and the severity of the offence.  

3. Imprisonment:

Employers who are convicted of knowingly hiring illegal workers can face imprisonment. This is a more severe consequence and is usually reserved for the most egregious cases of non-compliance. 

 Director Disqualification:

In addition to fines and imprisonment, directors of companies involved in illegal employment may be disqualified from acting as a company director for a specified period. 

5. Reputation Damage:

Criminal convictions can lead to severe damage to an employer’s reputation, affecting their relationships with customers, partners, and stakeholders. It’s important to note that criminal charges and penalties are typically reserved for cases where there is clear evidence of deliberate and systematic non-compliance with immigration laws. To avoid these severe consequences, employers should prioritise accurate and compliant Right to Work checks, conduct due diligence, and seek legal advice when necessary. Ensuring that employment practices align with immigration laws not only prevents legal trouble but also maintains a lawful and ethical workforce.  

How can Right to Work checks help employers?

Completing, documenting and maintaining accurate Right to Work checks provide evidence of: 

• Legal Compliance: Accurate records provide evidence that employers have fulfilled their legal obligations by conducting proper Right to Work checks. This documentation is essential in case of audits or legal inquiries. 
• Evidence of Due Diligence: Records demonstrate that an employer has exercised due diligence in verifying the immigration status of employees. This can be valuable in defence against potential penalties or legal claims. 
• Support for Audits: In the event of a Home Office audit or investigation, having well-organised records simplifies the process and helps employers demonstrate compliance swiftly and efficiently. 
• Right to Work Tracking: Records can assist in tracking the immigration status of employees with limited leave to remain, ensuring timely follow-up checks to maintain compliance. 
• Dispute Resolution: In cases of disputes or discrepancies related to immigration status, accurate records can serve as a reference point for resolving issues.  

Staying Updated with Changes in Immigration Laws and Regulations: 

The landscape of immigration laws and regulations can change, so it’s important to stay updated: 

Regular Training Updates: Provide periodic refresher training sessions to keep HR personnel informed about any changes in immigration laws, procedures, or guidelines. 

Legal Updates: Encourage HR personnel to subscribe to relevant newsletters, attend seminars or webinars on immigration law updates, and access official government resources for the latest information. 

Legal Counsel: Establish relationships with legal experts or immigration consultants who can provide guidance and updates on immigration matters. 

Policy and Procedure Review: Periodically review and update internal policies and procedures related to Right to Work checks to ensure they align with the most current regulations. 

Communication: Foster open channels of communication within your organisation to ensure HR personnel can raise questions or concerns regarding immigration compliance. 

By investing in continuous training and staying informed about changes in immigration laws, HR personnel can effectively carry out Right to Work checks, reduce the risk of non-compliance, and contribute to the creation of a compliant and lawful workforce. 

Conclusion 

In conclusion, understanding the employer’s responsibility in conducting Right to Work checks is fundamental for businesses operating in the UK. By following the guidelines and best practices outlined in this blog post, employers can ensure compliance with immigration laws, avoid legal consequences, and create a safe and inclusive work environment for all employees.