Pre-Employment Checks: What is an employer obliged to do to prevent illegal working?

Between February 2008 and the end of 2012, 8,100 civil penalty notices were issued to employers for failing to comply with their obligations with regard to the prevention of illegal working. The resulting fines equated to a net sum of £57.5 million.

Despite the above figures, many employers still fail to carry out the necessary employment checks prior to the commencement of employment. By which time, an employer may be liable for a civil penalty of up to £10,000 (if they negligently employ someone without the right to undertake the work for which they are employed), or may have committed a criminal offence (if they knowingly employ an individual who does not have the right to undertake the work for which they are employed).  Under draft legislation, the government intends to increase the civil penalty to a maximum of £20,000 from April 2014.

So, how can employers ensure that they do not fall foul of their obligations? 

An employer is “excused” from the above sanctions if it can establish the statutory (legal) excuse against having to pay the penalty.

In practice, this means carrying out a series of pre-employment checks to show all has been done to prevent illegal working.  An employer must ask for and take copies of original documents, showing that the person is allowed to work before they start working, and if an individual has any restrictions on the type of work that they can do and/or the hours they can work, the employer must make sure the job given does not break these conditions. Moreover, if an employee has a time limit on their right to work, an employer must monitor this and repeat the above checks annually. 

The documentation required will depend on whether the person is subject to immigration control and it is important for employers to check they are compliant with current guidance on what is acceptable documentation. The Government have confirmed in response to consultation last summer that they are committed to reducing the amount of acceptable documents and they are linking this to the roll out of biometric residents’ permits for non EEA nationals. However, it is not yet clear when this reduction will occur. It is therefore important that an employer checks they have compliant documents at the time of recruitment and when completing any subsequent checks.  For further information regarding the documentation required, please contact the Irwin Mitchell Business Immigration team.

Moreover, civil penalties and criminal offences are not the only issues that employers need to be mindful of when carrying out pre-employment checks. Under the Equality Act 2010, an employer has a legal duty to avoid unlawful discrimination on racial grounds and this applies to job applicants and prospective job applicants, as well as workers. Therefore, employers should ensure that they carry out appropriate checks on all applicants, not just those that appear to be of non-British decent, to avoid claims of discrimination.

Furthermore, the case of Osborne Clarke Services –v- Messrs Purohi UKEAT/0305/8, held that it was indirect race discrimination for an employer to prevent individuals from submitting an application for employment if they did not have the right to work in the UK at the date of application.  In reaching that decision, the Employment Appeals Tribunal confirmed that employers should, as far as possible, base selection purely on merit and that right to work issues should only come into play at the last stages of selection.

In order to balance all of the above, employers should ensure that they are treating all applicants in the same way throughout the recruitment process. This will include asking all applicants for the appropriate ‘right to work’ documentation, both to avoid discrimination claims and prevent illegal working.

For specialist immigration advice, please contact the Irwin Mitchell Business Immigration team.