Checking the employee’s right to work

Produced by Tolley in association with Sarah Bradford
Checking the employee’s right to work

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...

Introduction

Under the Immigration, Asylum and Nationality Act 2006 employers have a duty to prevent illegal working in the UK. As part of the process of taking on a new employee, an employer should check that the individual in question is legally entitled to work in the UK. Employers are obliged to check a document that is regarded as acceptable for showing permission to work in the 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 in the 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 in the UK, the employer can face a civil penalty of up to £20,000 in respect of each illegal worker. If the employer knows that an individual does not have the right to work in the UK but employs them anyway, that is a criminal offence for which the penalty is an unlimited fine and / or up to two years in jail. 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 in relation 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 in the 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 was important in terms of

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