Your obligations to carry out checks to ensure a employee has the right to work in the UK

Not everyone has the right to work in the UK and the Government has placed obligations on employers to carry out certain checks to make sure everyone they employ is eligible to work in the UK.

This means that every employer has an obligation under the Immigration Act to ensure that checks are carried out on employees prior to commencement of employment. These checks should be carried out on ALL prospective employees, regardless of apparent race, origin or citizenship.

What happens if you do not carry out appropriate checks?

Quite simply you could be subject to fines and even criminal prosecution.

The law makes it a criminal offence for an employer to employ someone who does not have the right to work in the UK, or no right to do the work the employer is offering.

Employers may be liable to payment of an uncapped financial penalty if they are found to be employing illegal migrant workers and they could be subject to up to 5 years imprisonment.

However, the law gives employers a statutory defence against fines and convictions for employing illegal workers if they carry out certain checks and have retained a copy of certain documents belonging to the individual (see below).

The law also obliges employers to ensure that their recruitment practices do not discriminate against individuals on racial grounds – and this is why it is important to carry out check on all prospective employees – not just those you think (maybe because of their accent or colour) may not have the right to work in the UK!

What checks do you need to carry out?

Employers must request and hold on file a copy of certain documents for EVERY employee.

The most straightforward and common document will be a passport. This would be a passport showing the holder is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK or is a national of a European Economic Area country or Switzerland.

There are many other documents that prospective employees can provide and a link has been provided at the end of this article to the full list.

What should you do?

You need to satisfy yourself that the prospective employee is the rightful holder of the documents presented and any documents are current. You should therefore check the document by looking at photo’s and any dates (e.g. dates of birth, any expiry dates) to check these are consistent with the appearance of the prospective employee. You are not however expected (or required) to identify forged documents.

Take a copy of the documents you review – copying every page that has photo-id, signatures, dates or personal information about the individual. Also copy any pages that have official stamps or endorsements relating to the employee working in the UK (which may also detail the type of work that can be carried out or any restrictions).

Keep this information on the employees file. You must keep a record of every document that has been copied, in order to comply with legislation.

What should you do if someone cannot provide required documentation?

If a prospective employee is unable to provide any of the acceptable documents (click here for a full list), you should not employ them! Any offer of employment should be made subject to them providing this information and you should make it clear that they will be unable to commence employment until you have this information.

What if I don’t have documents from some current employees?

You need to ask them for relevant documentation as soon as possible. They should be asked to provide this information and given a clear deadline by which they must provide it. The Company will remain vulnerable to fines and prosecution until you have the correct documentation on file.

Remember it is illegal for you to employ someone who does not have the right to work in the UK – and the only way you can off-set your potential liability is to have a copy of acceptable documents on file for every employee.

If, having requested documentation, an employee is unable (or unwilling) to provide this, you will need to consider terminating their employment – as to continue to employ them will be an ongoing risk to the business (as potentially they do not have the right to work in the UK). You will need to follow an appropriate procedure to ensure the dismissal in fair.

If you need assistance or guidance with this, or have any further questions about eligibility to work in the UK, please speak to our HR experts on 01702 216573.