Right to work checks- Why are they important and what do they involve for employers?
The importance of conducting right to work checks
Conducting right to work checks is a crucial part of the hiring process. Employers have a legal obligation to prevent illegal working by carrying out right to work checks on all their employees before their start date and throughout their employment.
When should right to work checks be conducted?
Right to work checks should be conducted on all employees before they start work. The checks must be carried out on the employees, regardless of their nationality or ethnic background, and should be done for every job, whether it is full-time, part-time, permanent, or temporary. It is the employer’s responsibility to make sure that the checks are conducted, and failure to do so can result in legal penalties, such as fines of £20,000 for each illegal worker or even imprisonment.
Who is responsible for reporting employee changes in immigration status?
Both the employee and the employer have a responsibility to report any changes in an employee’s immigration status. An employer has a legal obligation to ensure that they have up-to-date information about their employees’ right to work in the UK. If an employer becomes aware that an employee no longer has the right to work in the UK, they should take immediate action to terminate their employment.
The employee, in turn, has a responsibility to inform their employer if their immigration status changes. This may include changes to their visa or work permit, or changes to their circumstances that affect their right to work in the UK.
It is important for both the employee and the employer to communicate openly and proactively about any changes to immigration status. This will help to ensure that the employer remains compliant with UK immigration law, and that the employee’s right to work in the UK is protected.
Keeping records of right to work checks
Employers in the UK are required to keep records of their right to work checks for all employees. These records should include copies of the documents that have been checked, such as passports or visas, as well as any other relevant information, such as the date of the check and the name of the person who carried out the check.
Keeping these records is important for several reasons. Firstly, it can help to demonstrate that an employer has carried out the necessary checks and has taken reasonable steps to ensure that their employees have the right to work in the UK. This can be important in the event of an audit or investigation by the Home Office.
Secondly, keeping accurate records can help to protect an employer from liability if an employee is found to be working illegally. If an employer can demonstrate that they carried out the necessary checks and kept accurate records, they may be able to avoid or reduce any civil or criminal penalties that may be imposed.
Conducting follow up checks on employees with time limited visas
Employers are required to conduct follow-up right to work checks on employees who have time-limited visas to ensure that they continue to have the right to work in the UK. These checks should be carried out at least once every 12 months, or at the point at which the visa is due to expire, whichever is later.
During these follow-up checks, the employer should ask the employee to provide evidence that they continue to have the right to work in the UK. This might include a new visa or work permit, or other documentation such as a letter from the Home Office.
It is important for employers to keep accurate records of these follow-up checks, including the date of the check and the documentation that was provided. This will help to demonstrate that the employer has taken reasonable steps to ensure that their employees continue to have the right to work in the UK.
Conducting right to work checks after TUPE transfers
During a TUPE transfer, the responsibility for conducting right to work checks transfers from the old employer to the new employer. The new employer should therefore carry out its own right to work checks on all transferred employees to ensure that they have the right to work in the UK. The right to work check must be undertaken within 60 calendar days from the date of the transfer.
If you require further guidance or would like further legal advice, call our multi-award-winning Employment team on 0333 323 5292.
This blog first appeared on People Management Magazine
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