Checking the employee’s right to work

Produced by Tolley in association with Sarah Bradford

The following Employment Tax guidance note Produced by Tolley in association with Sarah Bradford provides comprehensive and up to date tax information covering:

  • Checking the employee’s right to work
  • Introduction
  • Brexit
  • Who has a legal right to work in the UK?
  • Permanent right
  • Temporary right
  • The need to check in every case
  • What checks must the employer carry out?
  • Conducting a manual right to work check
  • Later checks
  • More...

Checking the employee’s right to work

Introduction

Under the Immigration, Asylum and Nationality Act 2006 employers have a duty to prevent illegal working inthe UK. As part of the process of taking on a new employee, an employer should check that the individual inquestion is legally entitled to work inthe UK. Employers are obliged to check a document that is regarded as acceptable for showing permission to work inthe UK. The initial checks should be carried out before employing a person. Follow-up checks should also be carried out where a person’s right to work inthe UK is time-limited. While there is no penalty for simply failing to carry out such a check, if an employer is found to be employing someone who does not have a legal right to work inthe UK, the employer can face a civil penalty of up to £20,000 inrespect of each illegal worker. If the employer knows that an individual does not have the right to work inthe UK but employs them anyway, that is a criminal offence for which the penalty is an unlimited fine and / or up to two years injail. The employer should be aware that they are liable for the civil penalty, even if the check is performed by a member of staff. Further, the employer will not be able to establish a statutory excuse if the check is performed by a third party, such as a recruitment agency or a professional adviser. It is vital that employers understand their responsibilities inrelation to the checks.

The Government produce a guide for employers, setting out what checks they need to undertake to make sure that an individual has a right to work inthe UK.

Brexit

The UK negotiated a Withdrawal Agreement and left the EU on 31 January 2020 (referred to as ‘exit day’) with an 11-month implementation period up to 31 December 2020. While exit day

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