This article is brought to you by ACEVO's partner, WorkNest.
Making sure your employees have the legal right to work in the UK is a basic legal requirement. It is also one of the simplest ways to protect your business from serious financial and reputational risk.
Immigration law changes regularly and mistakes can be expensive. Where immigration advice or visa support is needed, we can support you through our sister company, ESP Solicitors. Read on for more information.
Why getting it wrong matters
At WorkNest, we’re seeing an increase in enforcement activity and penalties issued across a wider range of sectors than before. UK Visas and Immigration (UKVI) are also using HMRC and tax data to identify possible breaches.
If a civil penalty is issued, it is recorded on a public register. Employers can be fined up to £45,000 per worker for a first breach, rising to £60,000 per worker for repeat breaches, unless a statutory excuse applies.
Getting it right at recruitment stage
Right to work checks must be completed before an individual starts work. This applies to all employees, including British Citizens. Employers should never make assumptions about someone’s status.
It’s important to strike the right balance. Recruitment decisions must be based on suitability for role, not visa status, to avoid discrimination claims. At the same time, you must still ensure that the employee has the right to work from the start of their employment.
If UKVI investigates, you will be expected to show that checks were carried out right to work checks before the employee started work and before they were paid. Following the government’s guidance on right to work procedures gives you a statutory defence.
How to carry out a compliant right to work check
In practice, a compliant check involves a few clear steps. Employers must:
- See the original documents or confirm the employee’s status online
- Check documents carefully, including that photographs match the employee and there are no signs of alteration
- Take and retain a clear copy, recording the date the check was completed
- Keep copies for two years after employment ends, and no longer
UKVI is phasing out biometric cards and moving fully to digital e-visas. These can be checked online using a ‘share code’ provided by the employee. (If in doubt, our colleagues at ESP Solicitors can advise and support you through the whole right to work checking process).
What if employees transfer to you?
Where employees transfer to your business under TUPE regulations, you cannot rely on checks carried out by the previous employer. Instead, you are given a 60-day grace period to complete new right to work checks for all transferring staff.
Your ongoing responsibilities
For employees with time-limited permission to work, your obligations do not end after the initial check. You should diarise a review six to eight weeks before the visa expiry date.
At this point, ask the employee to confirm their current status and whether they have applied, or intend to apply for an extension. Follow this up in writing, clearly setting out what evidence is required by when.
When problems arise
Despite planning ahead, issues can still arise.
If an employee has applied for a visa extension – if the application was made before the end of the current visa, and they can supply a ‘share code’, you can check their status online. This usually allows them to continue working for another six months.
If a share code is not available, you must use the Employer Checking Service. This provides a 28-day grace while you wait for confirmation from UKVI.
If an employee cannot provide evidence – you must not continue to pay or employ someone who cannot prove the right to work. As a fair process must be followed, and if there is any question about the employee’s status, please contact us via the Employment Law Helpline as soon as possible.
We can advise you through a fair and lawful process to bring employment to an end if needed. This allows notice to run to the end of the contract and gives the employee an opportunity to provide evidence at any point during that period.
If proof is provided after the notice period has ended, you should contact us straight away. In some cases, the safest approach may be to consider any suitable vacancies.
How we can support you
WorkNest can support you with right to work concerns and any resulting employment action. Where immigration, sponsorship, or visa support is required, we can refer you to our specialist business immigration team at ESP Solicitors.
To speak to us, contact the WorkNest Advice Team through your usual channels. For more complex matters, call us on 0345 226 8393 quoting ‘ACEVO’ and we’ll talk through how we can support your charity.