15 May 2013 #Employment
With UK immigration policy being a constant political hot potato and changes being made to the immigration rules seemingly continuously, employers may have a hard time keeping up to date. As a minimum, though, all employers should be carrying out right to work checks on their staff to avoid breaching the immigration rules.
Why do the checks?
Under the Immigration, Asylum and Nationality Act 2006 all employers must ensure that individuals who are employed by them have the right to work in the UK in the job in question at all times. Employers that fail to carry out the checks and are found to be employing illegal workers could face a fine of up to £10,000 per illegal worker.
What does it involve?
Employers should carry out a right to work check before an individual starts working for them. If the individual only has temporary permission to live and work in the UK, the employer should repeat the check every 12 months or before the expiry of the temporary permission, whichever is the earlier. Carrying out the checks properly provides an employer with a statutory excuse if they are found to employ any illegal workers. However, employers that knowingly employ illegal workers could face up to 2 years’ imprisonment and/or an unlimited fine.
What happens in a TUPE transfer?
Employers also need to be aware of the need to carry out right to work checks when they acquire staff as a result of a TUPE transfer. Where employees transfer under TUPE, employers have a grace period of 28 days from the date of transfer to carry out the appropriate document checks. If you have not carried out these checks and are found to be employing staff illegally you could face a fine from the UKBA. Equally, where an employer is acquiring a workforce as part of a share acquisition (where TUPE may not apply) it should ensure that right to work checks are in place as part of the due diligence process to avoid breaching the rules.
For more information on carrying out right to work checks and other immigration issues see the immigration section of Employmentbuddy here. There is also comprehensive guidance on preventing illegal working issued by the UKBA, which contains details on preventing illegal working and photographic examples of work permits and visas an employer might come across.