15 Jun 2017, 10 mins ago

UK employers have a statutory obligation to carry out Right to Work checks in respect of prospective employees to prevent illegal working within the UK. The Home Office expects that employers carefully and systematically check each employees identity and their Right to Work within the UK.

Employers are often failing to ensure that the crucial Right to Work documents are successfully obtained, leading to severe cost sanctions from the Home Office.

Additionally, not only are employers expected to obtain sufficient Right to Work checks before commencing employment, but there is also an ongoing duty for the employer to ensure that the employees correct up-to-date documents are sufficiently held on their HR files.

In May 2014, the Right to Work requirements were updated in which the principal change was that the maximum civil penalty that a UK organisation could receive for employing illegal workers in the UK is between £10,000 to £20,000 per illegal worker.

Failure to sufficiently carry out the Right to Work checks could subsequently mean that employees do not have the Right to Work within the UK. The changing rules of the rights to work within the UK means that it is easy for employers to make mistakes in respect of these requirements.

Recent studies have found that failing to abide by the Right to Work requirements is costing UK organisations £50 million in fines each year. Through research provided by Onfido, it was established that 2,943 civil penalties were sanctioned, totalling £49,472,500 between July 2015 and July 2016. These figures suggest that UK organisations are making crucial mistakes due to poor practices in respect of their Right to Work checks. Such mistakes can easily be avoided by seeking expert advice.

The total amount of the civil penalties served by the Home Office is based on each illegal worker within the organisation and despite what is commonly thought, the amount of the penalty is not based on the size of the relevant company. Therefore, the accuracy of the Right to Work checks could potentially be a crucial element to the survival of smaller UK organisations.

Most employers are facing these sanctions due to being uninformed of the updating rules for the Right to Work checks. Therefore organisations’ usual practice for the Right to Work checks may be outdated and insufficient. In the eyes of the Home Office, this will not be a sufficient reason to act as a defence to the civil penalty and subsequently the organisation will liable to pay.

The changes to the Right to Work requirements means that it is becoming increasingly difficult for employers to maintain their duty to ensure the non-employment of illegal workers. It is therefore vital to ensure that the Right to Work checks are managed satisfactorily. Employers should have sufficient systems in place to make the correct checks and to obtain the valid documents as evidence of the employees Right to Work within the UK. Without expert advice, this can be a difficult system to manage accurately and consistently.

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© Gherson 2017