Lees Solicitors - The Right to Work in the UK

Employment Law News

The Right to Work in the UK


The Right to Work in the UK

It is unlawful for an employer to employ an individual who does not have the right to work in the UK. This was recently highlighted by the case of Baroness Scotland who has been fined £5,000 for employing a Tongan woman who did not have the right to work in the UK. Baroness Scotland had in fact undertaken checks on the worker's status but fell foul of the Immigration Asylum & Nationality Act 2006 on a technicality.

Given that Baroness Scotland is the most senior law officer in England & Wales, this has been very embarrassing for the Government. However, it also highlights important issues for all employers concerning their responsibilities in ensuring that they do not employ illegal workers.

Penalties

Under the 2006 Act, a civil penalty of up to £10,000 per individual who does not have the right to work, can be imposed on an employer who negligently employs someone who does not have the right to undertake the work for which they are employed.

An employer who knowingly employs an individual who does not have the right to undertake the work for which they are employed commits a criminal offence and could receive an unlimited fine and/or be imprisoned for up to two years.

The civil penalty

Employers may receive a visit from Immigration Officers. Such Officers may request documents evidencing the right of employees to undertake work in the UK and may also question individual employees. If the Immigration Officer believes that an employee does not have permission to work, then they will issue the employer with a Notification of Potential Liability. The Notification of Potential Liability is then passed to the UK Border Agency who may then issue a Notification of Liability setting out the civil penalty to be imposed. The employer then has 28 days to make arrangements for payment of the penalty or to object to or appeal against it.

Avoiding liability

There are a number of checks that an employer can make to avoid liability for the civil penalty. Such checks must be carried out before the employee commences their employment. If the checks are carried out on the date of commencement then the employer will still be liable to imposition of a civil penalty.

The checks to be carried out are set out in full in the UK Border Agency's Comprehensive Guidance for Employers on Preventing Illegal Working.

It is important to refer to this Guidance which sets out the original documents that an employer must request from an employee. In addition to obtaining such documents, it is important to note that the employer must keep copies of the document for the duration of the individual's employment and for a further two years after the termination of employment. Baroness Scotland failed to keep photocopies of the document that she inspected and accordingly the £5,000 fine was imposed.

Discrimination

Employers are best advised to carry out appropriate checks on all prospective employees before they commence employment. This will ensure that an employee does not slip through the net. The equal treatment of all prospective employees will also help prevent claims of race discrimination arising. This may seem onerous at first glance, but for the vast majority of employees this will involve taking a copy of one document such as the prospective employee's passport and this can easily be incorporated into recruitment practices.

Further guidance can be found in the UK Border Agency's Code of Practice on avoiding unlawful discrimination when seeking to prevent illegal working.

Employers are advised to check their recruitment procedures to ensure compliance with the legislation and to avoid claims for race discrimination.

Matt Smith

 

This article provides a summary of a recent case/change in law/news item. It is intended for general information purposes only and is not to be relied upon. It does not constitute legal advice and should not be treated under any circumstances as a substitute for legal advice. Lees Solicitors LLP does not accept any responsibility for any loss that may arise from reliance upon the information contained within this article. The copyright in this article is owned by Lees Solicitors LLP and permission must be sought before reproduction or publishing.


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