Reducing the risk of a civil penalty

Companies that are found to be employing individuals who do not have the right to work in the UK risk receiving a civil penalty of up to £20,000 per employee. Employers can establish a statutory excuse, thereby protecting themselves against civil penalties, by carrying out fully compliant right to work checks on each employee prior to the commencement of employment.

Immigration Enforcement will send an information request prior to issuing a civil penalty in order for an organisation to have the opportunity to demonstrate that they have established a statutory excuse or to demonstrate that they qualify for a reduced civil penalty.

We set out below the five key areas in which companies are failing and thereby losing their statutory excuse.

1. Trial shifts: Many employers, particularly in the leisure sector, require potential employees to carry out a trial shift as part of the recruitment process. Employers should be aware, that before a trial shift takes place, even if no payment will be made to the worker, a fully compliant right to work check should first be carried out.
2. Discrimination: Many employers fail to check the right to work of those who they presume are British citizens. However, unless an employee has produced valid evidence of their right to work, employment should not be allowed to commence regardless of whether the individual appears to be British.
3. Expiry dates: Where an initial right to work check shows that the individual has a time limit on their leave, an employer should ensure that this date is recorded and a repeat check carried out. An organisation that fails to carry out a repeat check will lose their statutory excuse.
4. The right documents: Employers should be aware of which documents demonstrate that an individual has the right to work in the UK. A national insurance number for example is not evidence of a right to work.
5. Record keeping: Whilst many employers do carry out right to work checks, they fall down by not keeping accurate records of the checks. Copies of the documents must be taken and stored and the date of the check must be recorded.

Further information regarding how to carry out a right to work check can be found here.