All employers have a duty to prevent illegal working even if they do not sponsor migrant workers. In the last three months of 2016 alone, employers in Yorkshire and Humberside were issued with civil penalties totaling £810,000 for employing illegal workers. Clearly, there is a need for employers to do more to protect their business from this risk.
Here are key things all employers need to know:
There can be serious consequences for failing to do proper checks.
An employer can fined up to £20,000 per employee found to be working illegally. In addition, key personnel in the organisation can be prosecuted if they had reasonable cause to believe, or knew, their employee did not have the right to work. The maximum prison term is five years and there is no limit to fines in criminal proceedings. Licences to sell alcohol can also be affected if illegal workers are found.
Repeat offenders can be subject to further sanctions including their details being published and will be at risk of their premises being closed if further breaches are being investigated.
Carrying out the checks will act as a legal defence against fines or can reduce the level of the fine
If an employee is found to be without a legal right to work the employer will have a legal defence against civil penalties if they had carried out right to work checks. In some cases, where the Home Office finds that a civil penalty should still be issued, evidence of carrying out checks can reduce each fine by up to £5,000. Checks must be carried out by someone in the organisation – if outsourced the check will not give a statutory excuse.
Checking National Insurance numbers is not enough
National insurance numbers are issued to people who may not have a right to work for all employers and so are not sufficient proof they may be employed. Home Office guidance includes a checklist of specific documents which must be shown including passports, national ID cards and residence permits. These must be seen in the presence of the employee and a copy, which must be signed and dated as having been seen, kept by the employer.
Visa conditions should be carefully checked.
Some international students will be permitted to work up to 20 hours a week (running from Monday to Sunday) in term time with no limit during holidays. Others will not be allowed to work at all. This information should be shown on the person’s biometric residence permit. Employers will need to have a record of a student’s term times to show when they were allowed to work longer hours. Allowing someone to work more than the permitted hours will also be a breach of immigration law subject to fines, even if only one or two extra hours have been worked.
Other visa holders, e.g Tier 1. Entrepreneurs and Tier 2 workers, will be limited as to who they may work for with Tier 1 Entrepreneurs only able to work in their own businesses.
Checks may need to be repeated
Checks need to be carried out for each employee before they start work. If the document shows a time limited right to work the employer should keep a record of the visa’s expiry date. A check will need to be repeated when the visa is due to expire.
A positive verification notice may be needed
If an employee does not have documents because they are applying to renew their visa or has an immigration appeal pending, they may still have a right to work due to a concession in immigration law known as “3C leave”.
In these cases, an employer should use the online Employer Checking Service and wait to receive a Positive Verification Notice before employment can start. Employers will be covered for existing employees whose visas expire for a period of 14 days if they are reasonably sure the employee made a new application before their visa expired. After that a Positive Verification Notice must be obtained which will be a valid excuse for up to six months.
Carrying out these steps carefully may mean your business can avoid serious sanctions.
You can find the full Home Office guidance here.
If you would like a review of your right to work check procedures or have any concerns about illegal working and civil penalties please get in touch for a confidential and no obligation discussion.