08 Sep 2023
Soaring financial penalties and even prosecution, are among the most serious consequences for employers who breach Right to Work rules, explains Thorntons immigration specialist Jacqueline Moore
Recruiting the right employees is crucial for the success of any business. In the UK, employers are responsible for ensuring members of their workforce are legally entitled to work in the country. Hiring people without the correct ‘Right to Work’ (RTW) status exposes employers to significant risks and repercussions, including soaring financial penalties and even criminal prosecution.
Since Brexit, only British and Irish citizens have an automatic right to work in the UK. EU nationals who came to the UK on or after 1 January 2021 no longer have an automatic right to work. Nationals of any other country who arrived at any time also do not automatically have the right to work.
In addition, the right to work varies depending on the type of immigration permission held. Many visa-holders have “restricted work rights”. This means there are limits placed on their right to work, such as the number of hours they can work or the role they can perform.
As the immigration system becomes ever more complex, with increasing numbers of employees now requiring RTW status, the onus is on employers to conduct the appropriate checks – and it is easier than ever to make a mistake. The consequences of getting it wrong are serious, and the stakes have become even higher since the UK Government signalled its intention to triple the cost of fines for businesses that allow migrants to work for them illegally.
The civil penalty for employers, which was last increased in 2014, will increase from £15,000 to £45,000 per illegal worker for a first breach and from £20,000 to up to £60,000 for repeat breaches. According to the Government, over the last five years almost 5,000 civil penalties have been issued to employers with a total value of £88.4m.
There are a host of other serious consequences for employers who break the law, whether knowingly or not. These include discrimination claims and the risk of criminal charges against directors if they knew the person had no right to work. Furthermore, the Home Office also ‘name and shame’ businesses who have received a civil penalty by publishing their names on a quarterly report by region.
To prevent breaches, businesses need to keep on top of changes to RTW legislation and Home Office Guidance, which changes frequently. Regular training should also be provided for HR and recruitment teams to help them properly carry out right to work checks and ensure that their HR systems and protocols are set up enable them to properly carry out their duty as employers not to employ illegally.
Businesses must retain RTW checks for a period of two years after the end of employment. Keeping good records is crucial for showing compliance in the event of external audits.
Employers who are concerned about compliance should consider reviewing their current RTW policies and reviewing staff training needs. An external mock audit can be a good way of identifying any existing compliance problems and getting specialist support in rectifying this.
Whilst getting on top of the RTW issue, may require an investment in terms of time and cost, it looks to be a worthwhile investment, given the risks involved in getting it wrong.
Jacqueline Moore is a consultant in Thorntons’s employment and immigration team. Accredited as in immigration law specialist by the Law Society of Scotland, she has assisted clients with immigration and nationality law issues for more than 22 years.
