Updated guidance on preventing illegal working
On 28 January 2019 the Home Office updated its Code of Practice on preventing illegal working. The Code of Practice sets out the prescribed checks that employers should conduct to avoid a civil penalty for illegally employing an individual.
If an employer is found to be employing an individual without the right to do the job in question for the employer, conducting the checks in the prescribed way will provide the employer with a statutory excuse against liability for a civil penalty. Otherwise an employer can face a fine of £20,000 per worker.
It replaces the Code issued in May 2014, and now provides employers with the option of conducting an online right to work check. This is the employer page on gov.uk, entitled ‘View a job applicant’s right to work details’. To access it you will need to obtain the employee or prospective employee’s access share code. You should note that it will not be sufficient for an employer to use the individual’s portal on the Home Office website and you must check it through the employer’s page to benefit from the statutory excuse defence.
There are three basic steps to conducting an online right to work check:
- Use the Home Office online right to work checking service (the ‘View a job applicant’s right to work details’ page on gov.uk) in respect of an individual and only employ the person, or continue to employ an existing employee, if the online check confirms they are entitled to do the work in question;
- Satisfy yourself that any photograph on the online right to work check is of the individual presenting themselves for work; and
- Retain a clear copy of the Home Office confirmation provided by the online right to work check (storing that response securely, electronically or in hardcopy) for the duration of employment and for two years afterwards.
If the online right to work check does not confirm that the individual has the right to work in the UK and to do the work in question, the employer will not have a statutory excuse from this check if they proceed to employ the individual. If the employer knows or has reasonable cause to believe that the individual does not have the correct permission to work, and employs them anyway, they risk being found guilty of a criminal offence.
If the employer is unable to conduct an online check because the individual has an outstanding application, appeal, or administrative review with the Home Office in respect of their leave, the employer must contact the Home Office’s Employer Checking Service.
A Positive Verification Notice from the Employer Checking Service will provide the employer with a statutory excuse for six months from the date specified in the Positive Verification Notice. The employer will then need to make a further check upon its expiry.
Penalties for non-compliance
In the event an employer is found guilty of employing an individual who does not have the correct permission, and cannot rely on the statutory excuse, the employer could be liable for a maximum penalty of £20,000 per illegal worker.
If the employer is found guilty of the criminal offence of knowing or having reasonable cause to believe that the individual does not have the right to do the job in question, then they could face an unlimited fine and receive a jail sentence of up to five years.