The need to make right to work checks on your workers

Despite the provisions of the Immigration, Asylum and Nationality Act 2006 (the Act) coming into force on 29 February 2008 it would appear that many firms are still not clear about what checks they should be conducting on job applicants and workers who are subject to ongoing immigration controls.

If it is found that a firm has employed an illegal worker as a result of negligent recruitment and employment practices they are liable to be fined up to £10,000 per illegal worker. Furthermore, if it is proven that a firm has knowingly employed an illegal worker, the fine is without a set limit. Individuals in positions of responsibility, who know or consent to the illegal employment of workers, in addition to fines, may also face up to two years’ imprisonment.

It is recommended that prior to allowing a job applicant to start work, firms obtain original documents to prove the worker has the right to work in the UK. Details of the approved list of documents or combination of documents which can be accepted are available on the UK Border Agency’s website.

It is advisable that firms check the documents provided to ensure they relate to the job applicant and take reasonable steps to verify the authenticity of the documents - although firms are not required to become experts on detecting forgeries.

Firms must retain certified copies of the documents provided by the worker, for the duration of the person’s employment and for two years after termination of employment for those with restrictions on their right to work in the UK. By doing this firms could be provided with a defence, or statutory excuse, against liability for the payment of a civil penalty for employing a migrant worker illegally.

There is an additional duty on firms to conduct repeated document checks on workers who are subject to ongoing immigration controls and a system should be set in place where repeat checks are conducted at least once every 12 months for these individuals.

Immigration laws continue to evolve, therefore firms are encouraged to conduct an audit of their workers right to work in the UK, to ensure they are compliant with the provisions of the Act.

Related news articles - for FSA regulated firms.