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The peak selling season of Christmas means an increase in the hiring of temporary staff for businesses across the UK.

Although the festive season will come and go, employers’ legal duty to prevent illegal working in the UK lasts all year round.

The implications of not checking employees’ right to work can not only be costly and damaging to an organisation’s professional reputation but may also disqualify the business from entering into public procurement contracts.

New laws introduced in 2008 have already led to more than 200 firms being prosecuted for employing illegal immigrants with employer fines amounting to more than £3.4m.

The Immigration Act 2016 came in to force on the 12th July 2016 and has amended the criminal offence to employ an illegal worker. The penalty for the offence of employing illegal workers has also been increased from two years imprisonment to up to five years, as well as an unlimited fine, making it increasingly important that employers consider the correct identity checks as a way of mitigating risk and ensure that their background checking systems are up-to-date with new legislation.

Right to Work documents

  • You must check that a job applicant is allowed to work for you in the UK before you employ them
  • You must see the applicant’s original documents
  • You must check that the documents are valid with the applicant present
  • You must make and keep copies of the documents and record the date you made the check

Check the documents

You need to check that:

  • The documents are genuine, original and unchanged and belong to the person who has given them to you
  • The dates for the applicant’s right to work in the UK haven’t expired
  • Photos are the same across all documents and look like the applicant
  • Dates of birth are the same across all documents
  • The applicant has permission to do the type of work you’re offering (including any limit on the number of hours they can work)
  • For students, you see evidence of their study and vacation times
  • If two documents give different names, the applicant has supporting documents showing why they’re different, e.g. a marriage certificate or divorce decree

If the applicant was recruited via an employment agency

If you employ staff under a contract of service, and use an employment agency to recruit them, it is your business as the employer which is responsible for checking their right to work for the purposes of the immigration rules. You cannot delegate the check to the agency and may be liable for a penalty if you try to do so. If, on the other hand, those recruited are not your employees and are employed by the agency, the your company will not need to check their right to work. It is good practice, however, to do checks on all employees.

Further checks

Employers have to make further checks if a worker has a limited right to work in the UK

Conclusion

Employers must maintain maintain the integrity of their staff or risk the consequences. A business’ reputation can be seriously compromised if an employee’s misdemeanour is made public and it is clear that it could have been avoided through proper background checking procedures.

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If you need guidance on the prevention of illegal working and need advice on how to carry out a right to work check, please speak to Tom Evans on 0151 230 1217 or tom.evans@dtmlegal.com.

 

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