Q&As

Would a company who has inherited employees on a TUPE transfer be liable for a criminal penalty if it subsequently finds through checks it conducts within 60 days following the transfer that an employee has been working illegally?

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Published on LexisPSL on 11/12/2019

The following Immigration Q&A provides comprehensive and up to date legal information covering:

  • Would a company who has inherited employees on a TUPE transfer be liable for a criminal penalty if it subsequently finds through checks it conducts within 60 days following the transfer that an employee has been working illegally?

Would a company who has inherited employees on a TUPE transfer be liable for a criminal penalty if it subsequently finds through checks it conducts within 60 days following the transfer that an employee has been working illegally?

The current system of civil and criminal penalties for employers who employ illegal workers exists for employment commenced from 29 February 2008 under the Immigration, Asylum and Nationality Act 2006 (IANA 2006), and there have been subsequent amendments. See Practice Note: Illegal workers—civil and criminal sanctions.

An employer will not be subject to a civil penalty under IANA 2006, s 15 if they have obtained a statutory excuse by completing a valid right to work check prior to the commencement of an individual’s employment.

Employees transferring to a company under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), SI 2006/246 are offered a 60-day grace period for the purposes of carrying out a right to work check. This concession is a matter of policy, found in the relevant guidance (see p 29 of the Home Office Guidance). This means that the company inheriting the employees under the TUPE transfer must carry out a right of work check on all transferred employees within 60 days of the transfer to ensure that they have a statutory excuse against a civil penalty. See subheading ‘Checks following a TUPE transfer’ in

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