The Importance Of Right To Work Checks

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A client recently faced a Home Office enquiry into the status of one of their non-EU employees. It was resolved (eventually) with a positive outcome for our client, however, the reality could have been very different. It brought to the surface the significant risk that the business may have needed to amend its strategy for growth in the UK market had it not been able to recruit the required expertise from outside the EU. Of course, the realities of the UK labour market post-Brexit could still impact on this.

All businesses should review their HR and employment policies and processes on a regular basis, especially where it relates to Sponsored Migrant Workers (SMW’s), and I discussed this with Jane Carroll, Partner at Solutions for HR, based in Bury.

Jane commented “Under UK immigration rules, it is a criminal offence to employ a person who is not entitled to work in the UK, therefore before employing any candidate it is essential that you ensure he or she has the right to work here. The easiest way to do so is to check all job applicants’ documents as part of your normal recruitment process – whether you believe candidates to be migrants or not. The necessary documents will depend on a candidate’s individual circumstances. You must ensure that the documents are valid.” Employers should not underestimate their obligations during the recruitment and on-boarding to the HMRC, and to effectively ‘police’ the movements of all SMW’s during their employment.

Jane continued to say that there is a useful online service which allows users to quickly check that the specific circumstances allows someone the right to work in the UK. This includes determining whether the vacancy could be filled by anyone in the EU. The site is anonymous and asks five simple questions to give an immediate answer. The test can be found at: https://www.gov.uk/legal-right-work-uk.

If someone you wish to employ is not permitted to work in the UK without restriction, they will need to apply to work under a points-based system and are likely to require a certificate of sponsorship from an employer. As such, to employ workers under the points-based system, you will need to register as a sponsor.

Jane warned that you can be sent to jail for up to five years and receive an unlimited fine if you know or should have known that you employed someone who doesn’t have the right to work in the UK.

The advice is to safeguard yourself and your business by carrying out the correct right to work checks on employment, but to also ensure robust HR administration processes to flag up visa expiry dates to ensure rights to work remain valid.

If you would like to revisit your processes or seek advice, please contact Helen Clayton at helen.clayton@pmm.co.uk or call 0161 641 8684.