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

The following Immigration practice note produced in partnership with Duncan Bain of Penningtons Manches 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

IP COMPLETION DAY: 11pm (GMT) on 31 December 2020 marks the end of the Brexit transition/implementation period entered into following the UK’s withdrawal from the EU. At this point in time (referred to in UK law as ‘IP completion day’), key transitional arrangements come to an end and significant changes begin to take effect across the UK’s legal regime. This document contains guidance on subjects impacted by these changes. Before continuing your research, see Practice Note: What does IP completion day mean for Immigration?

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.

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

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