Virginia, US

The prevention of illegal working has been at the forefront of media coverage in recent weeks. On 12 July 2016, the Immigration Act 2016 came into force introducing new criminal penalties for individuals working in breach of their visa conditions and increasing the penalties for employers.

Just two weeks later, the Home Office arrested a number of employees of hamburger chain Byron, who were suspected of working illegally. Whilst the Home Office regularly undertakes such compliance visits, the fact that Byron is a popular high street name meant there was a significant amount of publicity. The more interesting fact is, despite the number of individuals arrested for working illegally, it is understood Byron will not face any criminal or civil penalties because they correctly carried out all the requisite right to work checks and cooperated with the Home Office.

So with the spotlight on employers, what do these checks actually involve and how can your company benefit from the same level of protection?

What is illegal working?

Illegal working goes beyond that of simply not having the right to work in the UK.

A classic and often overlooked example are the work rights held by Tier 4 General students. The level of course a Tier 4 General student is enrolled on will dictate the number of hours they are permitted to work, if at all. It is therefore, crucial that employers are able to track the number of hours worked per week. For example, a Tier 4 General student working 21 hours a week instead of the permitted 20 hours a week during term time would be working illegally.

What is my role in preventing illegal working?

You must conduct a right to work check for all employees either prior to or on their first day of employment. This is done by checking a document which is acceptable for showing permission to carry out the work in question. By doing so you will have a statutory excuse against a claim of illegal employment.

How do I conduct a right to work check?

There are three basic steps to follow:
 
1. Obtain:
  • original versions of one or more acceptable documents;
  • In the absence of immigration documentation and in limited circumstances the employer checking service can be used.
 
2. Check:
  • document’s validity in the presence of the holder;
  • documents are genuine and have not been tampered with;
  • the person presenting them is the prospective employee, the rightful holder and allowed to do the type of work you are offering;
  • photographs and dates of birth are consistent;
  • expiry dates for permission to be in the UK have not passed;
  • work restrictions;
  • difference in names across documents.
 
3.Copy:
  • make and retain a clear copy;
  • record the date the check was made;
  • retain the copy securely: electronically or in hard copy.
 
It is important to note that you are not expected to be a forgery expert. If you have an employee who has given a false document, you will only be required to pay a civil penalty if it is reasonably apparent that it is false. In the Byron example, it is reported they had been presented with forged documents, but they still benefited from the statutory excuse.
 
Why should you do these checks?
 
In the event of illegal working being established, you could receive a civil penalty of up to £20,000 per illegal worker. If the document check was conducted as per protocol, the civil penalty will not apply as you will be deemed to have obtained a statutory excuse. However, with the introduction of the Immigration Act 2016, you will commit a criminal offence with up to five years imprisonment if you know or have reasonable cause to believe that you are employing an illegal worker.
 
In addition, as civil penalties are published and often picked up by the media as seen with Tesco, London Metropolitan University and most recently Byron, there is a high risk of reputational damage to your business.
 
How can I ensure my business stays compliant?
 
As an employer, you are obligated to ensure your employees continue to have the right to work throughout their employment with you. This includes completing follow up checks on those who have time-limited permission to work in the UK before their status expires.

Recent trends in illegal working have shown government agencies such as HMRC, DVLA, and the UKVI sharing data. With information being shared more freely, it is even more important to maintain accurate records, minimising the risk of illegal working penalties or criminal prosecution.

Most often a civil penalty has been given simply due to an administrative error, which could have easily been avoided. Therefore, it is your responsibility as an employer to ensure the staff responsible for completing right to work checks and maintain employee records receive suitable training and guidance.

If you have any questions on illegal working, please contact our London office.