Right to work Q&A

Should an employer suspend and stop pay if it discovers that their employee has lost the right to work in the UK?

It is difficult to be certain that an employee has lost the right to work in the UK so an employer should conduct a fair investigation and give the employee the opportunity to demonstrate that they have the right to work.

Suspending an employee will not provide a defence to an employer against any penalties for employing illegal workers if it transpires that the employee has no right to work in the UK because the individual will remain an employee, whether they are suspended with pay or not. 

Even where suspension is appropriate, the employee will remain entitled to receive pay during an investigation into their immigration status unless there is an express contractual right to suspend without pay.

Who is responsible for carrying out right to work checks on agency workers?

The employer is responsible for carrying out right to work checks and will be liable for a civil penalty if an employee is found to be working without valid permission.

In an agency arrangement, where the agency provides temporary staff who remain employed by the agency at all times, the agency will be the employer.

Even where staff are being provided on a temporary basis, and remain employed by an agency, it is good practice to ensure that all agency staff have the right to work to avoid business disruption and reputational damage which could arise if an agency worker is found to be working illegally. Employers using an agency to provide temporary staff should ensure that the agency is carrying out compliant right to work checks.

Do you need to conduct right to work checks on self-employed contractors?

Right to work checks are only required to be completed where an individual is an employee. Therefore, right to work checks do not need to be carried out on those who are engaged in genuine self-employment.

The problem is that the distinction between an employee, worker, self-employed person and contractor is not always clear. Changes in the tax regime under IR35 have highlighted the challenges in identifying which status a person undertaking work fits into. Therefore, it is good practice to have an expansive right to work checking policy.

Businesses may wish to ensure that the companies and sole traders they contract with have sound right to work policies to check the people they employ. For example, for a business engaging a team of essential engineers on a long-term basis who are vital to service delivery, it would make commercial sense that they ensure that the engineers have a right to do the work in question.

Can right to work checks be conducted on an employee’s first day of employment?

To establish a statutory excuse and a defence against a civil penalty, the employer must conduct a right to work check BEFORE employment commences.

The check can be performed immediately before the employment commences (including the same day) but it is advisable to undertake the check before the first day of employment.

If the check is undertaken on the first day of employment, there is a risk that the check could be overlooked. If employment is commenced without the check, then the opportunity to obtain a statutory excuse is lost. If the check is carried out after employment commences then the statutory excuse would not be available at any point during the employment.

Can an employer accept an expired British passport for a right to work check?

Yes. However, an employer must still undertake the full check to ensure that the passport is genuine and belongs to the individual. The employer must also copy the document and record the date the right to work check was made.

How long should an employer keep copies of right to work checks for?

An employer must keep a record of every document they have relied on to check an individual's right to work in the UK. This can be a hard copy or a scanned copy in a format which cannot be manually altered, such as a JPEG or PDF document.

The employer should keep the copies securely for the duration of the person's employment and for a further two years after employment ends.

It is not just the documents that an employee must retain. An employer must also make a note of the date on which the right to work check was conducted. This can be by either making a dated declaration on the copy documents or by holding a separate secure record. The date of the check may be written on the document copy as follows: "The date on which this right to work check was made: [insert date]" or a manual or digital record may be made at the same time which includes this information.

What are the consequences of failing to undertake a right to work check properly?

Under section 15 of the Immigration, Asylum and Nationality Act 2006, an employer may be liable for a civil penalty if they employ someone who does not have a right to undertake the work in question. The employer can face a civil penalty of up to £20,000 per illegal worker.

If the employer conducts a right to work check but this has not been completed properly, for example, the copy document has not been dated, then the employer can still be liable for a civil penalty.

An employer who receives a civil penalty will also appear in the publication of non-compliant employers in Employers: illegal working penalties. This is online ‘naming and shaming’ employers who have been found to employ illegal workers and can be extremely damaging to an employer’s reputation. 

If the employer knows or reasonably believes that they are employing an illegal worker, they will not have a statutory excuse regardless of whether the right to work check was carried out correctly. Instead, the employer will have committed a criminal offence and may face up to 5-years imprisonment and an unlimited fine. Any “officer” of the company can be prosecuted, such as HR manager, company secretary or director.

Other potential sanctions can include closure of the business and a compliance order issued by the court or the revocation of a sponsor licence.