Right to work checks and illegal working: problem areas and practical tips
Produced in partnership with Duncan Bain of Bower Bailey

The following Immigration practice note produced in partnership with Duncan Bain of Bower Bailey provides comprehensive and up to date legal information covering:

  • Right to work checks and illegal working: problem areas and practical tips
  • Balancing the risks
  • Right to work checks—employment status problem scenarios
  • Employment status scenario—right to work checks for workers who are not ‘employees’
  • Right to work checks—unfair dismissal problem scenarios
  • Unfair dismissal problem scenario 1—employer dismisses employee believing that the employee was not working lawfully, but the employee was entitled to work
  • Unfair dismissal problem scenario 2—employer dismisses employee who is working unlawfully, but the unlawful element of the employment can be rectified
  • Unfair dismissal problem scenario 3—no fair procedure followed
  • Right to work checks—race discrimination problem scenarios
  • Race discrimination scenario 1—an employer will only employ British citizens
  • More...

Right to work checks and illegal working: problem areas and practical tips

This Practice Note looks at how advisers can balance the competing risks that arise in practice where an employer fails to conduct a compliant right to work check or comes to suspect that an employee does not have the right to work.

For aspects relating to right to work checks on EEA and Swiss citizens, and their family members, before 1 July 2021, see Practice Note: Brexit materials—right to work checks.

Suspected illegal working situations involve consideration of a number of intertwined issues including:

  1. employment—employment law considerations are key as they regulate the employer’s decision whether or not to dismiss. Potential risks include unfair dismissal and discrimination claims. For further information, see Practice Note: Illegal working: dealing with employees

  2. regulatory—an employer may become liable to pay a civil penalty (leading in some cases to a revocation of any sponsorship licence) for employing a person who does not have the right to work. See Practice Notes: Illegal workers—civil and criminal sanctions and Illegal working: dealing with a civil penalty

  3. criminal—it is a criminal offence to employ a person who does not have the right to work while either knowing, or else having reasonable cause to believe, that the person is not entitled to undertake such work in the UK. See Practice Notes: Illegal workers—civil and criminal

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