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MARCH 2010

What checks must an employer make to ensure that an employee has the right to work in the UK?

All employers now have increased legal obligations to ensure that all their employees, whether new or existing, have the legal right to work in the UK.

With the influx of migration into the UK over recent years, foreign workers now comprise a vital element of the workforce for many British firms. Whilst many work comfortably within the parameters of the law, there are a small number who do not.

By following the steps outlined below for every individual you employ or intend to employ you should be able to show that you comply with the laws on employing migrant workers.

If you have not done these checks yet for all employees you should do so now or risk civil and criminal penalties.

1. OBTAIN CORRECT DOCUMENTATION

Your employee must provide you with documentary evidence of their right to work in the UK. This will usually take the form of one of the following:

• A passport showing the individual to be a British citizen.
• A passport or national identity card showing the individual is a national of a European Economic Area country or Switzerland. Individuals of certain EEA countries (e.g. Hungary, Poland, Czech Republic - check UK Borders Agency website for this, see address below) may also be required to register in the UK to be able to work so check that this has been done within the time limit of one month from the start of employment. Retain a copy of the registration document also.
• A permanent residence card issued by the Home Office or the Border and Immigration Agency.
• Passport of another country endorsed with appropriate visa or permission to work.
  

Please refer to the Home Office guidance for a detailed list of other acceptable evidence at www.ukba.homeoffice.gov.uk. In some circumstances it will be necessary to obtain more than one document.

2. VERIFY DOCUMENTATION

You must take all resonable steps to check that the document is valid and satisfy yourself that your prospective employee is the person named in the document, as well as verify that the documents and any visas or other certification allow them to carry out the work in question. For each document you should therefore:

• Check any photographs are consistent with the appearance of the employee (you must therefore see them in person);
• Check any dates of birth listed are consistent across documents and that you are satisfied that these correspond with the appearance of the employee;
• Check that the expiry dates of any limited leave to enter or remain in the UK have not passed;
• Check any UK Government endorsements (stamps, visas, etc.) to see if your prospective or current employee is able to do the type of work you are offering; you may need specialist immigration advice for this;
• Satisfy yourself that the documents are valid and genuine, have not been tampered with and belong to the holder;
• If your employee gives you two documents which have different names, ask them for a further document to explain the reason for this, such as a marriage certificate, a divorce decree, a deed poll or statutory declaration.
  

You should check with an appropriate  specialist legal  adviser if you have any doubts or concerns whatsoever in relation to an individuals right to work or understanding their documentation. This can be a  complex area.

3. TAKE COPIES

You must copy the relevant pages of the document in a format eg a photocopy which cannot be subsequently altered. In the case of a passport or other travel document the following parts must be photocopied or scanned:

• The front cover and any page containing the holder’s personal details. In particular, you should copy any page that provides details of nationality, the individuals photograph, date of birth, signature, date of expiry of biometric details; and
• Any page containing UK government endorsements/visas indicating that the holder has an entitlement to be in the UK and is entitled to undertake the work being offered.
  

Other documents should usually be copied in their entirety.

4. KEEP IT SAFE

A copy of every document must be kept securely for the duration of the individual’s employment and for a further 2 years after they stop working for you.

5. REPEAT CHECKS

Where an individual has provided documents showing a time limit on the right to work in the UK the dates should be diarised and follow up checks should be carried out and action to be taken agreed with the employee well before the expiry date to ensure that you do not continue prohibited employment after any expiry date.

Generally you should check the procedures and documents held once every 12 months to ensure nothing has been missed.

PENALTIES

By carrying out the steps outlined above you will have significantly diminished the possibility that you may have unwittingly hired someone who is not permitted to work within the UK. Even if someone has slipped through the net, such steps may provide you with a valid defence against prosecution. However, if you fail to comply with the rules then you may be subject to the following:

• Civil penalties of up to £10,000 per illegal worker; and/or
• Criminal penalties where you knowingly employ a person who is not permitted to work in the UK, which could lead to an unlimited fine and/or a prison sentence of up to two years.
  

DISCRIMINATION

It is very important to ensure that all employees are treated in the same way, regardless of their nationality, so as to avoid engaging in potentially discriminatory employment practices. This means that the procedures outlined above should carried out in relation to all employees, not simply those whom you believe to be foreign nationals.

 

If you would like any further information about the issues raised in this newsletter, or any other aspect of employment law, please contact Alison Downie on 0207 404 0606, Partner of Goodman Derrick LLP's Employment Department.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice.