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Right to Work can mean different things to different people. In the USA, some states have regulations stating people have a ‘right to work’ without being forced to join a union, whereas humanitarian organisations subscribe to the concept that people have a human right to work – or engage in productive employment – and should not be prevented from doing so.

In the UK, it is all about immigration compliance and is sometimes also labelled ‘preventing illegal working.’ This article uses the UK Home Office term of ‘right to work’ but the alternative of ‘preventing illegal working’ gives a good indication of what is required.

From January 1997, employers have been required to make checks on immigration status to check for illegal workers. Initially employers were required to be able to demonstrate a statutory defence, but following new legislation implemented in 2008, employers are now required to demonstrate they have a statutory excuse for all employees.

The statutory excuse means employers need to check the identity and immigration status of prospective staff members before employment starts. This requires checking an approved document from the Home Office’s list of acceptable documents. The employer needs to make basic, but appropriate checks to ensure the document belongs to the person presenting it; check the document is valid proof of right to work and that it is genuine and has not been tampered with. Most importantly the employer needs to retain a copy of the document checked and be able to demonstrate they have followed the necessary steps. An audit trail is important, so signing and dating copies also helps. This is where Auditel can help.

If an employer is satisfied with the documents, then it is likely the statutory excuse is in place; but what if a candidate cannot produce the required documents, or what if there are some doubts? The Home Office advise that employment should not be offered at this stage. It may be that the candidate has to apply for and provide some new documents or that the employer needs to research their options. Either way it would be a mistake to employ someone without the necessary paperwork being in place. This is because of the potential for a Civil Penalty, or worse.

Employers who get this wrong could be subject to an illegal working penalty of up to £20,000 per illegal worker; and if the Home Office can demonstrate that the employer “had reasonable cause to believe” that the employee is an illegal worker, the ultimate penalty can be a prison sentence.

In summary, the right to work in the UK can be defined as the process and record needed to ensure the statutory excuse is in place. The process requires following a few simple steps in order to create the relevant record. Doing this will protect employers from the Civil Penalty.

Article by: Eddie Finch

This is an article from: Insight & Innovation: Issue 2 – click here to read the whole newsletter.