Trustees’ Week – your quick guide to charity trustee duties
It’s a difficult and tumultuous time in the UK and many organisations will be facing the squeeze, particularly in the third sector. Many charitable...
Read MoreEmployers in the UK are under a legal duty to establish that every employee has a Right to Work. Employers must undertake a Right to Work check before they employ any person and must continue to establish a Right to Work for all employees for the duration of their employment depending on their immigration status.
If an employer is found to have employed an illegal worker, they may be liable for a civil penalty or in the worst case be subject to criminal prosecution.
Civil penalties for employers caught employing an illegal worker can include:
If subject to a criminal prosecution, on conviction a court can impose a six month prison sentence, a fine of up to £5,000 or both.
There are four types of Right to Work check:
Employers completing the right check, at the right time, and establishing a Right to Work at all times is essential to comply with the law and avoid a civil penalty. There are additional rules in respect of the inspection of original documents and Right to Work reports received and the retention of relevant documents for specific periods of time.
We can offer advice and support depending on the level of involvement required by your business to remain fully compliant. Our services include:
Under the Equality Act 2010 an employer cannot discriminate against an employee, or a potential employee, on the basis of a protected characteristic as defined in the Act. One of the protected characteristics is race. An employer’s obligations under the Equality Act, and potential liability to claims brought under the Equality Act, creates an uneasy tension in complying with Right to Work laws and the Equality Act simultaneously. An employer, for example, is told in various codes of conduct that they should not consider the Right to Work status of a candidate during the recruitment stage but MUST establish a Right to Work before any person commences employment. This separation may appear simple in theory, but in practice can create very real problems for employers.
Transfer of Undertakings (Protection of Employment) (TUPE) Regulations 2006 provide that Right to Work checks carried out by the transferor (the seller) are deemed to have been carried out by the transferee (the buyer). As such, the buyer will obtain the benefit of any statutory excuse established by the seller.
However, if the seller did not conduct the original checks correctly, the buyer would be liable for a penalty if an employee, who commenced work on or after 29 February 2008, is later found to be working illegally. Also, a check by the buyer may be the only way to determine when any follow-up check should be carried out in respect of employees with time-limited permission to work in the UK. For these reasons, employers who acquire staff in cases of TUPE transfers are advised to undertake a fresh right to work check on those staff they have acquired.
Thankfully, the Home Office recognises there may be practical problems in undertaking these checks before employment commences for workers acquired as part of a TUPE transfer, and for this reason a 60-day grace period is permitted during which the new employer should undertake the check.
We understand that this is normally a period of intense activity for a business and we can assist in the following way:
The Home Office routinely carries out unannounced visits on employers to investigate illegal working. If the Home Office suspects illegal workers are employed, it will issue a ‘Civil Penalty Notice’. This Notice will set out how many illegal workers are alleged to have employed and state the amount of the fine to be paid.
An employer has 28 days to reply to the Notice setting out their explanation in respect of the allegations and this can include setting out a full or partial defence to the allegations in the Notice. If an employer accepts they do not have a full or only a partial defence, representations should be set out in respect of the amount of the fine they should be liable to pay.
The Home Office will then respond with a final decision and specify the number of days for payment of the fine imposed. If the employer does not accept the decision or the amount of the penalty, they can appeal the decision to a local Court. This appeal must be lodged with the Court within 28 days of receipt of the Home Office’s final decision.
The worst case scenario is when the Home Office believes an employer has “knowingly” employed an illegal worker and the employer can be subject to criminal proceedings.
The impact of receiving a Civil Penalty or being subject to Criminal Proceedings for employing illegal workers can be devastating on a business financially and reputationally, and on the employer personally. The level of the fines may mean the survival of a business is put at risk. Further serious consequences can include losing licences including a liquor licence and a Sponsor licence. The loss of a Sponsor Licence has the result that sponsored workers can no longer work for the employer. At the very worst, if the employer is subject to criminal proceeding and a conviction is received the employer can receive a prison sentence of up to six months.
Our Immigration law specialists understand the serious challenges Right to Work laws pose for employers generally and the added complexities that can arise during recruitment and under TUPE arrangements. For these very reasons, our Immigration law experts are strategically embedded within our Employment law Team. Our combined Employment and Immigration law Team can provide expert advice and support to ensure full compliance with Immigration laws, Right to Work laws, non-discrimination obligations arising under the Equality Act and issues under employment law.
Contact us by filling out the enquiry form or emailing Mark below.
If you’re looking for advice on right to work Checks for employers, get in touch with our expert lawyers today.
Contact us on 0131 270 7700, visit our offices in Edinburgh, Glasgow, East Lothian, Shetland or Orkney, or fill in our enquiry form to request a call back.