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A. 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. In May 2024, UK Visas and Immigration released figures of the number of illegal working penalties that had been issued between October and December 2023. Overall in that period, throughout the UK, 685 people were found to be working illegally, and the total value of the resulting penalties was £7,875,000. Certainly, a big bill to share for the employers involved. Other penalties that could be faced for employing someone illegally include criminal prosecutions and even the forced closure of the business.
As you client had carried out the appropriate checks, they established their ‘statutory excuse which meant that even though new information later came to light and it transpired that the individual did not in fact have the right to work in the UK, there wasn’t any liability for having employed the individual illegally. To establish this excuse, they will have completed one of the following checks.
Checking right to work
Right to work checks should be conducted prior to employment begins. These checks involve a three step process of obtain (the documents or other evidence of right to work), check (that the documents are genuine and the person presenting them is their rightful owner and the prospective employee) and copy (make a copy of the documents or Identity Document Verification Technology (IDVT) check and retain it for the future).
Checks can be carried out in the following ways:
• Manual checks – in these checks, an original document is needed. These can be used for both foreign nationals, where they don’t have a ‘share code’ (see ‘online checks’ below), which must be checked using an online check) and British and Irish citizens. Typically, this involves checking a passport (or passport card for Irish nationals), or birth certificate, however the full list of acceptable documents can be found on List A on gov.uk’s “Employers’ right to work checklist”. These documents indicate the individual has an unlimited right to work and remain in the UK.
• 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. The services of an Identity Service Provider (IDSP) are utilised for this form of check, which uses Identity Document Verification Technology (IDVT) to check right to work documentation remotely. Once this check has been completed, your client will need to review the outcome and file it.
Record keeping
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, or if completing a digital check, the outcome of the IDSP’s IDVT check.
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.
