Employers’ duties and the policing of employee’s immigration status and right to work

When people decide to set up their own company they often do not appreciate the vast array of roles they will end up undertaking in the early days of their business enterprise; from ordering the stationary , sorting out routine repairs and trying to cover  the company’s marketing , technology and human resource requirements. It is always thought that with company expansion and the taking on of employees business profits will increase and the employer’s workload will reduce. 

However the UK government is now expecting employers to take on a new role; that of quasi Home Office immigration officer. That is not what most small business owners thought would be part of their job specification when they formed their limited company or signed a partnership agreement. That is why employers need the best London employment law advice to make sure they do not fall foul of immigration legislation relating to employer’s duties and the policing of their employees immigration status.  

Large companies and employers may think that they have got employees and systems in place so they no longer need to concern themselves with the minutia of the recruitment process. However all it takes is for one employee of a large company to not follow procedures for the company’s immigration status checks to not be compliant with immigration legislation or for a new piece of legislation introducing new requirements to be missed.  

The employer’s duties to check employee's immigration status   

Under the immigration legislation an employer is legally obliged to check a potential employee’s right to work in the UK prior to recruiting the new employee. This means that they have to:  

• See the potential new employee's original paperwork ;

• Check the paperwork is valid whilst the job applicant is present;

• Take copies of the paperwork ;

• Make a record of the date that the checks took place

• Carry out the checks before the employee starts his or her employment.

Those rules may seem simple enough but the devil is in the detail of checking the documents, for example an employer has to check that:

• The new employee’s documents are genuine;

• The documents produced relate to the new employee ;

• The new employee is still  within the dates he or she can work in the UK ;

• The new employee has the necessary permission to do the sort of work that the employer intends to employ him to do;

• If the proposed new employee is a student that evidence of their study and vacation times are seen.

The complexity of the rules and regulations do not end there. The Home Office has detailed rules covering what documents can be accepted and exactly how paperwork should be copied and retained by the employer.

In addition to carrying out immigration status checks accurately and to the letter of the law the employer must ensure that he or she follows data protection laws and does not racially discriminate against the potential new employee.  

Employer’s criminal liability for employing employees without checking immigration status 

If an employer does not comply with the immigration laws then under the immigration Act 2016 an employer will commit a criminal offence if they knowingly employ someone who is not legally entitled to work in the UK. The penalty is not a slap on the wrist but an unlimited fine and / or a prison sentence of up to 5 years.

If a director of a company has delegated the task of recruitment to a human resources team it is vital that the HR team not only know the law but they have measures in place to keep up to date with changes in the law, such as the laws relating to data protection and the retention of copy documents after an employee has left the company. 

Employer’s civil liability for employing employees without checking immigration status 

If an employer does not comply with immigration status checks or has reasonable cause to believe that their new employee does not have the right to work in the UK then the employer could also face a civil liability of up to £20,000 for each employee who has been employed but who does not have the right to work in the UK  

Employee rights and the need for employers to be wary of the potential for a claim by an employee relating to immigration status checks

Given the complexity of the rules and regulations surrounding immigration status checks there is the potential for human resources staff to not be familiar with some of the paperwork they receive from job candidates. So it is not surprising that putting the onus on the employer to carry out immigration status checks (and to review those checks) can create tension in the relationship between the employer and the new employee resulting in employers needing advice from top London employment law solicitors.

Whilst a company does not want to fall foul of the complex immigration status checks and end up facing civil or criminal sanctions they equally do not want to face a disgruntled employee at an Employment Tribunal.

In today’s age the penalties of court and employment law tribunals are not the only sanctions that an employer faces if a company fails to carry out immigration status checks in accordance with the legislation or makes an employee feel discriminated against or unfairly dismissed. The reputational damage to a company of either:

• Employing workers who are not legally entitled to work in the UK or 

• Discriminating against job applicants based on the requirement to carry out more onerous paperwork trails than other UK born candidates for jobs 

can ruin the reputation of a company.

How can employers and companies avoid problems relating to immigration status checks on employees?

No employer or company can completely eradicate the risk of facing civil proceedings, a criminal case or an employee tribunal claim but the best advice from top London employment law solicitors is to:

• Ensure you take regular employment law advice and check your employment procedures with your London employment law solicitors;

• Make sure your employment law solicitors are not just focussed on employment law but can also advise you on the complexities of Immigration Law , data protection legislation  and are proactive in protecting your company;

• Make sure that it is not just the company directors who are aware of developments in the law but all the company human resources staff and key personnel. It is also important to carry out checks and reviews to ensure that the recording of immigration status checks is being carried out in accordance with the law as there is no merit in training staff to follow procedures if they do not record and review checks on employee records.

Top London employment law solicitors are proactive in keeping employers abreast of this complex and fast paced changing area of law. At OTS Solicitors we pride ourselves on offering large and small companies bespoke employment law training services on compliance and prevention. At OTS Solicitors we believe that knowledge and prevention of problems cropping up is better than companies having to seek advice from top London employment law solicitors once there is an employment law problem. At OTS Solicitors we recognise that companies are as individual as people and our employment law training programmes therefore cater to the individual company needs.

With the right employment law team on an employer’s side immigration status checks do not seem as daunting to an employer, knowing that expert employment law help is available to give peace of mind and to enable the company to focus on its profits rather than the minutia of employment and Immigration Law.  

OTS Solicitors are specialist in employment law matters. For more information on companies duties in relation to employee’s immigration status or advice and support on any aspect of employment law please call us on 0203 959 9123 to arrange an appointment to speak to one of our experienced London employment solicitors.

 

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