Does your candidate have the legal right to work in the UK?
For many small employers, the ability to source replacement staff is vital to the success of the business. However, in current times, with the pool of sponsored overseas workers diminishing, there has been a rise in the number of illegal workers in the UK. Furthermore, according to a new report by the Social Market Foundation, losing legal migration routes after Brexit could lead to more people trying to enter and stay in the UK illegally.
The Home Office are aware of this and have commented that “Immigration Enforcement has well-established procedures to deter and tackle illegal immigration and illegal working, and this will not change after the UK has left the European Union.”
So, with ignorance not accepted as an excuse, the potential costs of falling foul are as follows:
- An unlimited fine or even a criminal conviction carrying a two-year prison sentence or
- A fine of up to £20,000 per illegal worker under the civil penalty scheme. This includes workers who have forged their own documents, whose visa has expired or doesn’t cover the sector you operate in
- The business could find itself subject to a closure notice where there is reasonable grounds to believe they are employing an illegal worker and have been subject to penalties previously.
These costs will be catastrophic to any small business and protection against the cost of non-compliance is therefore vital.
A small employer need not incur the cost of an external specialist HR service, although this may have merit in certain circumstances.
The solution lies in 3 practical steps that must be applied to your recruitment process:
- Avoid discrimination
Under the Equality Act 2010, the protected characteristic of ‘race’ prohibits unlawful discrimination, harassment and victimisation against individuals because of their nationality or national origins. This can include treating a person less favourably because they are not British or are from a country overseas.
One of the main ways that discrimination can take place is to have a practice whereby only those who are obviously non-British are asked to produce their right to work documents.
Instead, every new starter should have their right to work checked. This will not only avoid discrimination claims, but will prevent any illegal workers from slipping through the cracks.
Accordingly, this standardisation of practice for all new-starts is essential.
- Obtain Documents
In order for a person to be legally entitled to work in the UK, they must have at least one of the following:
- British passport
- British citizenship
- European Economic Area (EEA) citizenship
- Swiss citizenship
- A relevant work visa
- A relevant work permit
For more detail on how to assess your candidate’s legal credentials, use the official government web tool ‘Check if someone is allowed to work in the UK’
- Retain Records
Employers are legally required to keep a record of all documents necessary to prove that their new worker has a legal right to work in the UK.
You should photocopy/scan and retain all important documents ensuring that all details are clearly distinguishable, such as the expiry date on their visa or photograph on their passport. For biometric residence permits, you will need to copy both sides.
Once the employee has eventually left your company, whether they were a part-time or even a full-time UK resident, you will need to keep these records for two years after their last working day.
Photo by Alex Kotliarskyi on Unsplash
