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There has been a lot of recent activity by the Government to prevent illegal working. In our guide for small business owners – What documents you need when employing staff – we look in detail at all the points you need to consider and the documents you need when employing staff, casual workers and freelancers / contractors.
[Article updated 2017]
However, all employers have a legal obligation to check that all their staff have a legal right to work in the UK before they can employ them, as it is illegal to employ a person who does not have permission to live and work in the UK (the Company can be prosecuted and fined if they do).
All staff need to be treated the same (regardless of their nationality, place of birth etc.) so all staff must be checked. When a member of staff joins an employer they must provide evidence of their right to work in the UK by showing the company an original document from List A or List B (that the Government publishes). If a member of staff ceases to be entitled to work in the UK whilst in employment the employer may have no option but to terminate their employment.
The Government has been publishing further guidance in this area, and on 16th May 2014 amended the relevant legislation in this area.
At the end of October 2013, the Home Office published an updated version of their “Full guide for employers on preventing illegal working in the UK”. The guide is aimed at employers and human resources staff involved in the recruitment and employment of staff in the UK.
The guide covers the following:
In addition, the Immigration (Restrictions on Employment) legislation was amended on 16th May 2014. A summary of the changes are as follows:
The Government published a further guide in May 2014, called An Employers Guide to Right to Work Checks which you can see here.
On 12th May 2016 the Immigration Act became law, and will be implemented through a series of new regulations that come into effect over the next few months. The Act:
Terminating employment if the individual has no right to work in the UK:
In Nayak v Royal Mail Group Ltd in 2016, the Employment Appeal Tribunal had to decide whether the employee’s dismissal was fair when the Employer genuinely believed the employee did not have the right to work in the UK. Mr Nayak started work for Royal Mail in January 2008 and had a succession of legitimate visa’s. He applied for a Tier 4 general student visa and this was initially refused but he made a successful appeal to the immigration tribunal in May 2011 and his application was passed to the Home Office for processing. In March 2012 Royal Mail sought confirmation from the Home Office who said he had the right to work in the UK on the basis of an outstanding appeal. In 2012/13 the Royal Mail wrote to Mr Nayak 3 times to ask him for updated proof of his right to work in the UK and he did not reply. Further confirmation was sought from the Home Office and Mr Nayak (the details are complicated so we’ll shorten this!), and in the end Mr Nayak was warned that a failure to provide evidence of his immigration status could result in his dismissal and he was eventually dismissed. He appealed and the Royal Mail suggested he contact the Home Office which he did not; the decision to dismiss was upheld so Mr Nayak bought a claim for unfair dismissal. The original Tribunal rejected his claim so he appealed. The EAT agreed with the Tribunal that there was sufficient evidence to support Royal Mail’s genuine and reasonable belief that Mr Nayak no longer had the right to work in the UK.
Under section 3c of the Immigation Act 1971, when, before the expiry of a current visa, an individual makes an application for a new visa, they will retain the right to live and work in the UK under the terms of their previous visa – so long as the new application has not been decided by the Home Office or has been withdrawn or has an appeal against a refusal outstanding.
If you have any questions then please let us know!
If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to Lesley at The HR Kiosk – a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.
Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.
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