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­Employing illegal workers

All employers are under a duty to prevent illegal working in the UK by asking all newly appointed employees to provide specific documents confirming they have the right to work in the UK. From 1st May 2014 the penalty for employing an illegal worker increased from a fairly hefty £10,000 to a much heftier £20,000. To coincide with the new penalties a new statutory code has been issued which answers some questions, but does raise others.

It seems that some employers worry about asking candidates to supply these documents because they fear being the subject of a discrimination claim. The code says that job applicants can be asked to provide documents at any stage before they start work but doesn’t comment on the common practice of asking applicants if they have the right to work and excluding them automatically if they say no. This approach conflicts with the Equalities and Human Rights Commission’s own statutory code of practice. How far are you supposed to go in considering adjustments and support for candidates who currently don’t have the right to work but for example, may be able to qualify for this right through sponsorship? It’s not clear. Nor does the code give guidance to employers if job candidates are not able to produce documents proving their right to work, although you should not assume that the candidate is living or working in the UK illegally. If you’re faced with this situation,ask questions to establish the facts and give an opportunity for candidates to produce their documents. Keep a record of your actions.

Job applicants should not be treated less favourably if their permission to remain and work in the UK is just about to expire, since they may be able to apply for an extension. However, once again it’s not clear what the position is if the expiry is imminent.

In the case of Onu v Akwiwu, the Court of Appeal decided that immigration status is not the same thing as nationality, so treating a person less favourably because of immigration status is not necessarily unlawful. Employers should therefore be able to make necessary and proportionate enquiries about someone’s immigration status before or after employment.

There are two lists of documents which are acceptable as proof of right to work in the UK. The first is List A. This is for those with indefinite leave and no restrictions on the work they are able to do. The most common documents provided from this list are a passport or a birth certificate (which must give details of at least one parent),accompanied with proof of national insurance number. The passport must show that the named person is a British Citizen or a citizen of the UK and Colonies having the right to abode in the UK. The second list is List B. This is for those who have limited leave to be in the UK and/or have restrictions on the type of work or hours of work. These documents show the holder has a right to work for up to 12 months. The most common document provided from this list is a passport showing that the holder is allowed to stay in the UK and do a particular kind of work.

Check that:

  • the documents aren’t expired (except UK passports, which can be expired)
  • photos in the documents look like the employee
  • the date of birth on the document seems consistent with the employee’s appearance
  • the visa covers the type of work they’ll be doing (including any limit on the number of hours they can work)
  • if two documents give different names, the employee can give a good reason for this – e.g. marriage or divorce

The documents being provided to you must be originals. It is your responsibility as an employer to take all reasonable steps to ensure that the documents provided are genuine, that the holder is the person named in the documents and that named person can do the type of work being offered. Once you are happy that the documents are genuine, you must take a copy and keep it on file. This should be done in a format which cannot be altered, for example a photocopy. Copies should be kept on file for the whole of the individual’s employment and a further two years after.

By following the above steps you will obtain a statutory excuse for yourself, you have taken all possible steps to ensure that the person you employed is legally allowed to work in the UK and do the work you offered. However, if you do not follow the above steps you could now face £20,000 per illegal worker.

For more information on acceptable documents in List A and List B visit the Government website.

A recent change is the supply of passport details to HMRC in some circumstances. Where you have collected an employee’s passport details as part of your checks that the employee is entitled to work in the UK, you must now enter the passport number (including UK or non UK passports) on the information submitted to HMRC. You do not have to do this for employees who joined before you moved to the Real Time Information system.

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