Right to Work – Employers fined £10M in the first quarter of 2017

UK Visas and Immigration have published a quarterly report showing the total number of fines for illegal working given to employers in the United Kingdom.

The report shows that 902 illegal workers were found across the UK between 1 January and 31 March 2017 and employers were fined £10 Million for this period.

Although this is a reduction in the number of fines issued in 2016 for the same period it is still concerning that employers are either ignoring the laws regarding illegal working or just failing to carry out the appropriate checks prior to recruitment.

Obligations of an employer
All employers have an obligation to prevent illegal working and employers must:-

  • carry out right to work checks on all prospective employees before they commence work;
  • conduct follow up checks on employees who have time-limited permission to stay and work in the UK;
  • keep records of the checks carried out; and
  • not employ anyone it knows or has reasonable cause to believe is an illegal worker.

The Immigration, Asylum and Nationality Act 2006 sets out the civil penalties for employing an individual who does not have the right to work. The current maximum penalty is £20,000 for each individual found to be working illegally. However a number of factors will be taken into account to determine the level of the penalty such as whether the employer has a history of employing illegal workers, any pre-employment checks carried out, whether the employer reported the suspected illegal working, level of co-operation by the employer and whether the employer has any procedures in place for illegal working.

In additional to a fine, the Home Office also has the power to publish details of the civil penalty, the name of the employer and the number of employees working illegally in a public register which can be viewed online.

The Statutory Excuse
Employers have a defence for employing illegal workers and therefore may be excused from any fines if they can show that they have complied with specific requirements (the Statutory Excuse). An employer must be able to show that initial right to work checks were carried out prior to employment commencing. There is a three step process as follows:-

  • obtain original documents as required by the Home Office Guidance;
  • check (with the employee present) that the documents relate to the individual, are originals and valid; and,
  • copy and keep the documents securely, record the date for any follow up checks.

It is also important to note that the Statutory Excuse will be time limited if the employee’s permission to live and stay in the UK is also time limited. An employer must make follow up checks in the same manner as above to establish that the employee and a continued right to live and work in the UK.

When should you contact the Home Office?
In order to retain the Statutory Excuse employers are also required to contact the Home Office in the follow circumstances:-

  •  you are presented with a Certificate of Application which is less than 6 months old;
  • you are presented with an Application of Registration Card stating that the holder is permitted to undertake the work in question; or,
  • you believe that you have not been provided with acceptable documents because the person:-
    • has an outstanding application with the Home Office which was made before the permission to work in the UK expired; or,
    • has an appeal or administrative review outstanding and cannot provide evidence of the right to work.

Employers will only retain the Statutory Excuse in the above circumstances if they are issued with a Positive Verification Notice confirming that the individual is allowed to carry out the type of work in question.

An employer may have in place a robust pre-employment process to check the right to work of prospective employees but are they liable if they inherit an illegal worker under TUPE? In this scenario employer can still rely on the Statutory Excuse if they carry out original document checks within 60 days of the transfer date. If employers fail to do so and it transpires that some employees inherited under TUPE are working illegally, they will be liable to fines from the Home Office.

Discrimination claims
Employers should have in place policies on recruitment that apply to all staff. If employers only carried out right to work checks on applicants who appeared to be of non-British descent this could be classified as discriminatory. Employers should also consider basing selection on merit at the early stage of the interview process with right to work issues considered at the latter stages.

Failure to comply with the requirements to prevent illegal working are not only costly but can also cause reputational damage to an organisation. Employers should consider having in place policies on recruitment and ensuring that standard pre-employment checks are carried out for all staff prior to them commencing work. With Brexit on the horizon it is possible that the free movement of workers enjoyed by European nationals will come to an end and replaced with more limited rights on residence and access to the UK labour market. This in turn will require employers to be more vigilant about ensuring all their employees have the right to work in the UK.

The Home Office have also recently issued amended guidance on carrying out Right to Work checks in August 2017 which is always a useful starting point for employers.

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