Staying on the right side of work checks

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All employers have a responsibility to prevent illegal working in the UK by ensuring that their employees have the right to work here. In the retail sector, where stores often have to hire quickly to cover difficult shifts, the pitfalls of employing an illegal worker can be a real risk

Claire McKee
by Claire McKee – Claire McKee is an associate in the employment and labour team at Dentons. Since April 2015 Claire has acted as assistant editor and research assistant on the 3rd Edition of Employment Tribunal Practice in Scotland (Simon and Taggart)(claire.mckee@dentons.com)

What are the penalties for employing an illegal worker?

Even unwittingly employing an illegal worker in the UK carries the risk of a civil penalty of up to £20,000. Of course, the higher fines are likely to be reserved for those who fail to properly check that staff have the right to work in the UK – or those that are lax with their paperwork and therefore can’t prove that documents were checked. In cases where an employer knows or had “reasonable cause to believe” that the employee did not have the appropriate immigration status, a criminal offence will have been committed, with imprisonment for up to five years as a potential sanction.

What is the government doing to make it easier for employers to avoid employing illegal workers in the UK?

Launched at the end of January, employers can now use an online service to conduct the necessary right to work checks on certain employees, rather than viewing and copying original documents. Although the new service is optional, this is welcome news as the previous document-heavy process was an added burden on employers at recruitment stage. The online service can be accessed at www.gov.uk/view-right-to-work

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Who can use this service?

Employers of non-EEA nationals who hold biometric residence permits (BRPs) or biometric residence cards and EEA nationals with settled or pre-settled status under the EU Settlement Scheme can use the service. UK nationals, EEA nationals, who do not have settled status under the EU Settlement Scheme and non-EEA nationals who have a visa in their passport rather than a BRP, will continue to prove their right to work by showing original documents, such as their passport.

How does the system work?

Prospective or existing employees will view their own online immigration record and can then share access to this with the relevant person within the organisation: in retail, that might be a store manager, business owner or an HR manager. The relevant person will receive notification that they have an immigration record to view. By viewing the record and conducting a number of checks, a statutory excuse against a civil penalty will be established. The online records must be checked to confirm the employee is allowed to work in the UK, to perform the work in question and that the photograph on the online ’right to work’ record is actually of the employee.

How long should employers keep a copy of the check?

A copy of the online check must be taken and retained for at least two years after the employment ends, in order to be able to use the statutory defence if a problem subsequently came to light.

Where can I obtain more information?

A revised draft Code of Practice on preventing illegal working accompanied the statutory order introducing the change. The Code can be found on the Government’s website. n Do you have a business, property or legal question or issue that you would like to know more about?

Contact Scottish Grocer and we’ll put it to an expert. Call Matthew Lynas on 0141 567 6074 or email matthew.lynas@peeblesmedia.com