We’re all fed up with the ‘B’ word… but irrespective of our decision by the 31st January 2020 it is essential that we all have the right processes in place to check the ‘right to work in UK’ documentation for our new and existing employees (those under an employment contract, service or apprenticeship).
Are you familiar with the penalties for employing illegal workers?
Penalties include a jail sentence of 5 years and/or having to pay a fine if found guilty of employing someone who you knew, or had ‘reasonable cause to believe’, did not have the right to work in the UK, for example if you had any reason to believe that:-
- They did not have leave (permission) to enter or remain in the UK;
- Their leave had expired;
- They were not allowed to do certain types of work;
- Their papers were incorrect or false (Source: Gov/UK)
There is also a civil penalty fine of up to £20,000 for each illegal worker, or being disqualified as a Director, facing closure of your business or issued with a Court compliance order and businesses details could be published by Immigration Enforcement as a warning to other businesses, serious situations we all want to avoid!
If we leave the EU, we’re being advised that it’s not anticipated the Government will commence formal auditing of EU Nationals ‘right to work’ until after December 2020. Irrespective of this our thoughts at B2P are that (as there is already prevailing law in place) we still need to be able to demonstrate we have been compliant and fulfilled our obligations of conducting current and recent checks.
What can you do now to protect your business?
Irrespective of our decision by the 31st January 2020 we would recommend the following:-
- Audit and check the documentation you hold for all employees
- Review your recruitment process to ensure status checks are conducted for all applicants, not just those who may appear to be migrants, otherwise you could be deemed to be discriminating and breaking the law, and that these are concluded prior to any offer (verbal or otherwise) being made.
- Regularly audit the documents you hold. We would recommend reviewing these annually as a minimum, to ensure all documentation remains valid (e.g. a drivers licence or passport has not expired), or more frequently where permission to work in the UK is time-limited, or you have an obligation to do so on a more regular basis (see the Governments List B Group 2 below).
- Consider your HR policies and processes to ensure they are inclusive and support equality and diversity, that they are easily understood and provide information and support that caters for everyone’s needs e.g. ‘how to guides’.
- Should we decide to leave the EU, it is anticipated post-Brexit more companies will be making Sponsorship Licence applications. It would not be unreasonable therefore to expect this could cause processing delays, which is why some companies are taking the plunge now and making their applications early.
Whilst there is uncertainty in relation to exactly how things may change post-Brexit and how the ‘right to work’ process may be affected, it has the potential to result in Companies needing to introduce process changes, which could potentially impact the speed of the recruitment process e.g. having to allow extra time to recruit EU Nationals. On this basis it may be wise to start considering factoring additional time and costs into commercial plans and HR / recruitment budget(s).
What should I be checking?
Checks can be either manual or on-line (the latter requiring the applicant to provide a share code), dependent upon the documentation you need to check.
Where an applicant cannot show or produce documents, it is recommended that guidance is sought from the Home Office.
Check that all documents produced are valid, genuine and unchanged and that work visas have not expired.
Compare all information e.g. photographs, date of birth etc., to ensure these are consistent across all documents. Where inconsistencies arise, seek further evidence to establish whether these differences are valid e.g. where a different name appears this may be explained by obtaining a copy of a marriage/civil partnership or divorce certificate.
What do I do with these documents?
It is essential to see the original version of all documents (see below).
Check that all documents produced are valid, genuine and unchanged (e.g. they have not been tampered with) and have the person to whom they relate to present when you are checking these.
Take copies of the documents, ensuring that these are clear and readable and cannot be subsequently altered e.g. photocopies are securely/confidentially stored and access rights limited.
For passports copy pages with the expiry date and employee/applicants personal details e.g. nationality, date of birth and photograph and you should copy both sides of Residence Cards and Biometric Residence Permits.
Where copies have been taken we always recommend these are initialled, that you clearly print your name and job title and write:
‘I confirm that I have seen the original of this document [date]’.
Ensure that all documents are stored, retained (a minimum of 2 years post-employment) and destroyed in-line with your GDPR obligations (read our recent GDPR Article for further information and guidance).
What are ‘acceptable’ documents?
The type and numbers of acceptable documents required will vary from individual to individual and largely determined by their nationality and status, acceptable documents could include:-
- A Passport or National Identity Card
- Permanent Residence Card
- A Birth or Adoption Certificate
The Government has published a list of acceptable documents:-
- List A – acceptable documents for employees/applicants that have the permanent right to work in the UK.
- List B – acceptable documents for employees/applicants who have a temporary right to work in the UK. This list is divided into Group 1 and Group 2, the latter of which may require you to undertake 6 monthly reviews.
For additional information on these visit: https://www.gov.uk/government/publications/acceptable-right-to-work-documents-an-employers-guide
In addition to the documents we have referred to in this article, we would always advise undertaking additional (basic) identity and address checks and list below some examples.
We would recommend that you obtain copies of at least one of the following documents, again ensuring these are current, valid and originals:-
- Utility Bill (issued in the last 3 months and not a mobile telephone bill)
- Current Drivers Licence (UK/EU)
- Marriage/Civil Partnership Certificate (UK and Channel Islands)
- Mortgage Statement (issued in the last 12 months)
- Bank/Building Society or Credit Card Statement (issued in the last 3 months)
- P45 or P60 (issued in the last 12 months)
- Council Tax Statement (issued in last 12 months)
- Financial or Benefit Statement e.g. pension (issued in the last 12 months)
- HM Forces ID Card (UK)
It is of course important to note that the above may also be subject to change post-Brexit.
Further useful information can be found on the following Government websites:-
Detailed Right to Work Checklist https://www.gov.uk/government/publications/right-to-work-checklist
UK Visa (Tier 2 and 5) Sponsorship https://www.gov.uk/uk-visa-sponsorship-employers/apply-for-your-licence
