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Do all of your employees have the right to work in the UK? Are you sure?

Jan 30, 2014

I always try to think of something topical for the blog. However, a recent question from a client made me realise it could be worth going over a short piece of general advice for the benefit of newsletter and blog readers.

Whilst I don’t have any hard evidence (sorry about that), I am concerned that some clients, especially smaller companies and start ups, don’t do enough in this area.

The advice is just one line: you must check that every new employee has the right to work in the UK.

Why?

The answer to this is not surprising.  It is unlawful to employ anyone who does not have the right to work in the UK or who is working in breach of their conditions of stay in the UK.  A fine of up to £10,000 per illegal employee can be issued and you could end up with a criminal record if you knowingly employ an illegal migrant.  In April the government intends to increase the fine for a first offence to £15,000 and to increase the maximum fine to £20,000.

What do I need to do?

You need to carry out certain document checks before a new recruit starts work.  I’m not going to list the steps here since you can do better by consulting the Home Office guidance:

https://www.ukba.homeoffice.gov.uk/

In practical terms, I suggest making an offer of employment subject to satisfactory evidence of the individual’s right to work in the UK, in the same way that you would make it subject to references and sight of their qualifications.

Carry out the checks for all new recruits

It can be easy to make assumptions about some candidates and their right to work in the UK but this could lead to allegations of race discrimination. So the checks should be carried out for all new employees no matter where they appear to be from, or what they tell you about their nationality and their right to work.

If you don’t have one already I recommend creating a template letter which you use to make all offers of employment.  The letter should say that the offer is subject to evidence of a right to work in the UK (as well as references and so on) and you should enforce this policy before anyone starts work.  Similar safeguards can also be built into the employment contract.

In most cases the procedure will be simple, as a lot of employees will be able to provide a UK or EU passport, but it is still worth following it properly to avoid the risk of a fine. Last year a client of mine was approached by the Home Office and asked to show that it had carried out the necessary checks, so make sure they happen!

If you would like to discuss any of the above issues, or you would like help drafting an offer letter, contract or assistance in making the necessary checks then please drop me a line on 0207 234 0200.