Even though it is now 20 years since the Asylum and Immigration Act 1996 came into force, there are still a huge number of employers, especially small employers, that are not aware of their obligation to check an individuals’ right to work in the UK before offering them a position in their organisation.
When we think of illegal workers most people will think about sweatshops and cockle pickers but it’s incredibly easy for employers to be caught out and it can be discriminatory to just assume that someone has the legal right to work in the UK based on their appearance or their name.
Take the case of Mike Hill, the Manchester pub landlord who was fined £20,000 (which was later reduced to £15,000) for employing Robert Jordan as a glass collector for almost 6 years. Mr Hill and Mr Jordan had been family friends for over 30 years but unbeknown to Mr Hill, Mr Jordan was not a British Citizen having been brought to Britain as a 3 year old by his British mother after being born in America. Mr Jordan never applied for British Citizenship and therefore did not have the right to work in the UK.
This is a perfect illustration of how easily you can be caught out.
When is the right time to make these checks though? The check and verification of relevant documents must be carried out prior to an employee starting work with a company. To check documents on day one is already too late, the crime has already been committed.
If you check the status of every one who is interviewed you introduce the potential for claims of discrimination to be levelled at the recruitment process. We would recommend that in a late stage of the recruitment process you carry out the check on every candidate still in the process. It is important to be consistent and treat all applicants in the same way at each stage of your recruitment process.
You can refer to the Home Office’s Code of Practice on Avoiding Unlawful Discrimination while Preventing Working.
The documentation that can be provided can be confusing with varying different immigration statuses and stamps in passports so if you are in any doubt, seek assistance.
You must check original documentation
You must check them in the presence of the holder
You must make and retain a clear copy and record the date of the check. If there are any visa’s in force, you must make a note of the date of the expiry so that you are aware of its expiry and can correspond accordingly to ensure that the right to work in the UK remains.
In some circumstances, where documentation isn’t available or an application is underway, you may need to commence a check directly with the Home Office. Again you can seek advice on how to carry this out if you are unsure.
You need to make these checks an important part of your recruitment process and make no offers until you are fully satisfied. As in the case of Mike Hill, you can be given a civil penalty of up to £20,000 for each illegal worker if you have not carried out these checks.
If you know that you’re employing someone illegally however, you may face an unlimited fine and even prison.
If you are an employer and need ongoing assistance with staff and employment matters, talk to Cheryl at PeakHR. We offer competitive rates and cater specifically for small employers.
Please note our blog posts contain general information and are intended as guidance only and should not be taken as an authoritative or current interpretation of the law. Please ensure that you obtain advice tailored to your individual situation before taking action. These posts apply to the UK only.
#immigration #righttowork #righttoworkintheuk #passport #visa #migrantworker #illegalworking #illegalemployees #homeoffice #asylumandimmigrationact #recruitment #newstaff #employees #smallbusinesses #businessconsultancy #bestpractice #smallbusiness #humanresources #employmentlaw