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  • Writer's pictureSusan Wakelin

How do employers protect themselves from illegal working?

Updated: May 25, 2023

Did you know that it is a criminal offence for an employer to knowingly employ an individual who does not have permission to work in the UK, or where they have reasonable cause to believe that an employee does not have permission to work in the UK?

Illegal working in the UK

Employers that employ foreign workers illegally may be liable for civil and criminal penalties and employers can be jailed for five years and pay an unlimited fine if they are found guilty of employing someone they knew or had "reasonable cause to believe" did not have the right to work in the UK.

Government action on illegal working

It is so important for employers to protect themselves by conducting full and thorough right to work checks on all prospective employees, new starters and existing employees, where a check has not already been conducted or where a time-limited right to work was previously presented.

"Illegal working damages our communities, cheats honest workers out of employment and defrauds the public purse." – Suella Braverman, Home Secretary

According to the Government, they are "committed to going further and faster to prevent the abuse of our laws and borders."

"The British public deserve a labour market that is fair and honest and must have confidence that goods and services they buy are from legitimate businesses." – Suella Braverman, Home Secretary

Recent Home Office action against illegal working

With the increase in gig workers and immigration offences, such as with delivery drivers, the Government has said that they are clamping down on illegal working to ensure all Companies and workers are contributing to the UK economy by complying with tax and other regulations.

This resulted recently in Immigration Enforcement carrying out an intelligence gathering exercise where they identified hotspots for illegal moped delivery drivers, leading to sixty arrests of drivers working for Companies such as Deliveroo, Just East and Uber Eats, throughout London and the South. Forty-four of those arrested, were detained by the Home Office whilst awaiting deportation and sixteen have been released on immigration bail.

As part of the arrests, properties were searched and firearms and other weapons were found as well as over £4,500 seized under the Proceeds of Crime Act 2002.

Employers' responsibility to prevent illegal working

Employers are required to carry out right to work checks for all new employees, in addition to follow-up checks where required. These checks may also provide employers a defence against liability for employing a migrant worker illegally.

It is important that employers fully understand the correct way to complete right to work checks. Employers must check specific documentation or use the Home Office online right to work service for evidence of an individual's right to work in the UK. Employers should manually check one or two documents depending on what they are. For British and Irish citizens, an employer is only required to see and copy their passport, whether in or out of date. It is important that the correct pages are copies, including any page containing the holder's nationality, their photograph, date of birth, signature, immigration details, expiry date, and biometric information.

Employers can no longer check right to work virtually, which they could during COVID. All checks must be carried out manually or by using Identity Document Validation Technology (IDVT) via the services of an Identity Service Provider (IDSP).

Getting these checks wrong can lead to fines of up to £20,000 per illegal worker, disqualification as a Company director, being stopped from sponsoring migrant workers and the seizure of earnings made as a result of the illegal work.

Risk of race discrimination

It is, however, important that employers have clear written procedures in relation to right to work checks to ensure that they treat everyone equally and fairly, ensuring that they do not make assumptions about an individual's immigration status by the way they look.

In addition to this, individuals should not be questioned about their immigration status unless it is necessary to understand limitations on the length of time they are permitted to work in the UK or the number of hours they are entitled to work.

SWan HR Consultancy (London and Kent)

SWan HR is an HR consultancy that specialises in HR support for small to medium sized businesses in the South East.

"Where HR Succeeds, the Business Achieves"

SWan HR was founded by Susan Wakelin, MCIPD, who is a qualified HR professional with over thirty years' experience, from setting up, auditing and improving HR functions to management coaching and supporting organisations through difficult situations, transformation and change.

SWan HR provides a broad range of tailored HR services including an HR audit, HR advice, HR outsourcing, HR coaching and project work for all businesses.

Free HR consultation

Contact Susan Wakelin now to take advantage of a free half-hour consultation to talk through your initial HR concerns and how you can manage these going forward.

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