Employers guide to right to work checks & preventing illegal working

Could you be liable if you employ someone to work within the UK, who doesn’t have the relevant rights?

Yes. You could be fined substantial sums or even face a jail sentence if you’re found guilty of employing someone who you knew or had ‘reasonable cause to believe’ didn’t have the right to work in the UK.

To prevent this, you must carry out all relevant right to work checks to confirm your employees have the right to work in the UK before any employment commences.

What’s new in 2019?

The Home Office have recently updated their Code of Practice on Preventing Illegal Working. This Code sets out the relevant checks employers should conduct to avoid a civil penalty in the event of illegal working.

This update replaces the Code issued in May 2014, and reflects the Immigration (Restriction on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018. The change states that ‘employers may establish a statutory excuse against liability for an illegal working civil penalty by conducting an online right to work check using the Home Office online right to work checking service.’

What does this mean for you?

As well as continuing to carry out manual rights to work checks, employers can now carry out an online rights to work check in order to avoid civil penalty.

In order to satisfy statutory requirements, you must still ensure:

  • All checks are carried out on all prospective employees before their employment starts
  • Necessary follow up checks are carried out in relation to employees who have a time-limited permission to live and work in the UK, or require a document to evidence their right as in the case of non-European economic area family members, or European Economic Area or Swiss nationals, or an application pending
  • You keep records of all checks carried out

For further advice and guidance on ensuring you are carrying out the correct checks to provide your business with the statutory excuse get in touch with one of our employment law experts.

Access the full code of practice notes and find more information