What are the changes?
With effect from 12 July 2016, under section 21 of the 2006 Act (as amended by section 35 of the 2016 Act), an employer will commit an offence if they employ an illegal worker and know or has reasonable cause to believe that the person has no right to do the work in question. This means that the investigating agency does not have to prove that the employer knew that the employee had no permission to work.
The amendment to the Act enables employers to be prosecuted where they have reasonable cause to believe that the employee could not undertake the employment, even where they have perhaps deliberately ignored information or circumstances that would have caused the employer to know that the employee lacked permission to work.
What are the penalties?
If an employer fails to carry out these checks correctly, or does not carry them out and are then found to be employing someone illegally, tough action will be taken. Employers could face a large financial penalty known as a ‘civil penalty’ of up to £20,000 for each illegal worker.
If you know that you are employing someone who is not allowed to carry out the work in question you will be prosecuted, regardless of whether you have conducted document checks. You will commit a criminal offence under section 21 of the 2006 Act, as amended by section 35 of the Immigration Act 2016, if you know or have reasonable cause to believe that you are employing an illegal worker. You may face up to 5 years’ imprisonment and/or an unlimited fine.
What should employers do now?
In line with the introduction of the amendment, the Home Office have developed an Employer’s Guide to ‘Right to Work’ checks. You can access this using the link.
If, as an employer, you follow this scheme, you will avoid liability for a civil penalty if the Home Office find that you have employed someone who does not have the right to work, providing you have correctly conducted document checks as required.
As an employer, you have a duty to prevent illegal working. You should conduct document checks to make it harder for people with no right to work in the UK to unlawfully obtain or stay in employment, and to make it easier for you to ensure that you only employ people who have permission to do the work in question. If you need help with contracts, administration or handling issues relating to Right to Work, please contact one of the team on 01924 827869.