Most employers understand that they have a legal duty to check if employees have the right to work in the UK, to play their part in preventing illegal working. This is done by carrying out ‘right to work’ checks to ensure that their immigration status allows them to work. It may be that having completed a simple check, it is discovered that a prospective employee is disqualified from working. Importantly, by carrying out a right to work check, your business will have a 'statutory excuse' meaning that if the person later turns out not to have the right to work in the UK, you may avoid a civil penalty (of up to £20,000 per illegal worker). While this seems straightforward for employers, what happens if a business uses self-employed contractors?
Immigration, Asylum and Nationality Act 2006
Section 15 of the Immigration, Asylum and Nationality Act 2006 (the 2006 Act) says that an employer is open to a civil penalty if they hire a person who is under immigration control who:
- has not been granted leave to enter or remain in the United Kingdom, or
- their leave to enter or remain in the United Kingdom—
- (i)is invalid,
- (ii)has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or
- (iii)is subject to a condition preventing him from accepting the employment.
To underpin the seriousness of not conducting right to work checks, the current guidance states, "The offence carries a maximum penalty of six months' imprisonment and/or an unlimited fine in England and Wales and six months' imprisonment and/or a fine of the statutory maximum in Scotland and Northern Ireland. Wages gained from illegal working may be seized as the proceeds of crime and assets may be confiscated".
The 2006 Act is not solely focused on employed individuals, however, it also covers those who are self-employed; "As well as including those working illegally under a contract of employment, the offence also applies to work undertaken by those who are self-employed. The offence covers both informal and formal working arrangements".
Exceptions to Right to Work Checks
There are three main exceptions to the right to work check requirements; these are:
- Where staff are employed directly by an employment agency
- Sub-contractors or staff directly recruited by a third party supplier or contractor
- Genuinely self-employed contractors
The risk for employers, especially those in sectors such as construction and care, is making an assumption that there is no need to carry out a right to work check as this is being done by an agency or third-party, or where a person says they are self-employed, but they are not. For this reason, it is advisable to check with any agency or sub-contractor that they have carried out the necessary checks, and request evidence of this. Your business should also ensure that warranty and indemnity clauses are added to any contracts you have with third-parties or agencies to ensure right to work checks are done. Likewise, it is important to ask anyone who says they are self-employed to provide evidence of their right to work. Taking this 'belt and braces' approach will reduce the potential for breaching the law or suffering reputational damage by utilising illegal workers.
Carrying Out a Right to Work Check
The golden rule is never to make assumptions about who and who is not eligible to work based on education, age, race, ethnicity, accent, time spent in the UK, or family connections. All employees should be taken through a right to work check during the recruitment process.
A detailed right to work checklist and guide are provided by the UK government. There are three main steps, as follows:
Step 1) Obtain - Obtain original versions of one or more acceptable documents
There are two lists – List A and list B (group 1 and group 2), which contains all of the acceptable proof of right to work.
Step 2) Check - Check the document's validity in the presence of the holder
Employers must check the documents provided are genuine, and the person is the rightful holder, and they are permitted to do the type of work you are offering. You must check that any dates are valid, the documents are authentic, and that any information provided is consistent.
Step 3) Copy - Make and retain a clear copy, and record the date the check was made
Employers need to take a clear copy of each document and date it with when the check was completed. The government guidance of right to work checks states that "you must copy and retain copies of:
1. Passports: any page with the document expiry date, the holder's nationality, date
of birth, signature, leave expiry date, biometric details, photograph and any page
containing information indicating the holder has an entitlement to enter or remain in
the UK (visa or entry stamp) and undertake the work in question (the front cover no
longer has to be copied).
2. All other documents: the document in full, including both sides of a Biometric
Residence Permit, Application Registration Card and a Residence Card (biometric
format)".
Any copies need to be securely stored for the duration of the employment and at least two years afterwards, at which point they should be destroyed.
Final Words
The main aim of right to work checks in the UK is to prevent illegal working, and all businesses have a responsibility to ensure this does not occur. By putting in place a robust system into your business, which makes it clear, how, and when right to work checks should be carried out, you can ensure a consistent approach, and avoid any possibility of hiring someone who is not entitled to work in the UK. If you are unsure if you need to carry out a right to work check on an employee or self-employed person, it is advisable to err on the side of caution. An employment or immigration lawyer will be able to advise you further, not just on whether a check is needed, but how to complete a check which meets the requirements of the law.
