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All employers, regardless of size, are under a legal duty to prevent illegal working and can be subjected to penalties where they fail to do so. Employing someone illegally can have significant consequences for employers and their staff, from criminal prosecutions, fines, and even the forced closure of the business. Since 2018, almost 5000 civil penalties have been issued to employers with a total value of £88.4 million.
The government has announced that the penalty for employing illegal workers will be raised to up to £45,000 per illegal worker for a first breach (from £15,000), and up to £60,000 for repeat breaches (from £20,000). It is not yet clear when these proposals will come into effect. Clearly, now is not the time for your client to be taking any risks and failing to carry out these basic but essential checks.
Should your client carry out the appropriate checks (repeating them, when necessary, where the right to work is time limited), they will gain a ‘statutory excuse’ from the above penalties (i.e. a defence). This means that even if new information later comes to light and it transpires that the individual did in fact not have the right to work in the UK, the statutory excuse will mean there won’t be liability for your client for having employed the individual illegally.
Checking right to work
Right to work checks should be conducted prior to employment to ensure the individual is legally allowed to work in the UK.
Checks can be carried out in the following ways:
• Manual checks – these checks are the traditional method, where an original document is checked. It can be used for both foreign nationals (unless they have a Biometric Residence Card (BRC), Biometric Residence Permit (BRP) or Frontier Worker Permit (FWP), which must be checked using an online check) and British and Irish citizens.
• Online checks – using the Home Office online system, this is for foreign nationals who have an online share code.
• Digital checks – these are used for British and Irish citizens (more on this later)
Following the positive reception to temporary digital checks introduced during the covid pandemic, and the rise in popularity of remote or home working, a permanent system using specialist technology is now available. The services of an Identity Service Provider (IDSP) are utilised, which uses Identity Document Verification Technology (IDVT) to check right to work documentation remotely.
An essential part of right to work checks and maintaining the statutory excuse is record keeping. A record is needed of every document that has been checked. This can be a hard or scanned copy in a format which cannot be manually altered, such as a jpeg or pdf document. These should be kept securely for the duration of employment and for two years after, and accessible quickly should government officials need to check them. Being unable to produce them could mean the statutory excuse is lost.
Right to work checks are an essential part of the employment process. In this digital age, there are ways to do this even when an employee does not ever step a foot in the workplace. There isn’t, therefore, any excuse not to do these properly.
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