Right to work: what are your legal obligations?

By: Kirsten Cluer

Date: 30 May 2018

Right to work: what are your legal obligations?With Brexit looming, it raises the question of what happens to employees whose UK working visas are soon to expire. With EU workers making up a large section of the UK workforce, employers need to be aware of the situation - and how it affects them.

Chelsea FC owner Roman Abramovich recently made headlines after experiencing difficulties in renewing his UK visa, following new rules that came to effect in January requiring him to pass a tougher visa test. So just what are the options available to employers?

What the law says

Firstly, it's important to note that it is a criminal offence for a UK business to knowingly employ a person who requires, but lacks, immigration permission. This carries a maximum prison sentence of two years and an unlimited fine for employers who fail to comply with the law.

In practice, this is aimed at employers who deliberately flout the law in order to exploit vulnerable employees and undercut legal competitors. Those who are merely careless or negligent will generally be dealt with via a civil penalty.

When enrolling any new employee into the company, employers must check and copy specific original documentation. In fact, the UK government sets out when checks must be made, how to check visa authenticity and what documents employers need to photocopy and retain to prove they have hired staff legally.

These checks must be made before employment begins, but employers should always make sure to continually check the visas of employees with time-limited immigration status. Even if the employer is unaware an employee's visa has expired, they still face the risk of a civil penalty and criminal prosecution.

Can I just fire them?

If it comes to light that a company has an employee who is no longer permitted to work in the UK, the employer should remain level-headed, as terminating the employee's contract could carry greater risks.

A termination of contract to avoid any potential accusation of non-compliance on the immigration laws could expose the employer to claims of discrimination or unfair dismissal, especially where the employee has been with the organisation for two years or more.

However, employers who take a more passive approach and suspend the employee from work, or send them on 'gardening leave', are still at risk of a civil penalty, as the person is still technically employed despite not being permitted to work.

Therefore, employers who find themselves in such a position must carefully consider all of the facts and options available to proceed in a law-abiding manner.

Options for employers

A revoked visa, for example, will require an almost immediate response, and may relate to a conduct issue. On the other hand, an expiring visa may have a longer lead time to address, during which the employer could support the employee in applying for alternative immigration routes under which they can retain the employee.

In this instance, the employee should demonstrate that they have submitted an application to extend further leave to remain with the Home Office prior to the expiry date, and that this is in active consideration. This can be verified using the Home Office Employer Checking Service.

'Overstayers' may be able to invoke the 28-day grace period, allowing them time to address their situation with the Home Office and providing the employer with more time to investigate their options.

Your sponsor licence

Even if an employee with a working visa complies with the law, if the employer loses their sponsor licence, the employee's respective certificates of sponsorship will be cancelled, and their visas limited to 60 days, or however long remains on the visas where less than 60 days. The employee would then have to leave their job and the UK unless they make a new visa application within that time.

Likewise, if an individual is subject to a TUPE - regulations that preserve employees' terms and conditions when a business or undertaking is transferred to a new employer - visas will be limited to 60 days or less if the new employer does not renew their licence within 28 days.

Avoiding the risk

The most effective strategy for UK businesses to manage the risk of right-to-work compliance is through robust procedures implemented consistently across the organisation, to prevent illegal working arising in the first place.

A systematic approach to checking documents should cover all new employees, with further scheduled checks every 12 months for those with time-limited permission.

Overall, a formal right-to-work process will help minimise the risk of illegal employment and should enable the employer to rely on the 'statutory excuse' as a defence, in the event of unintentionally employing someone unlawfully, even where their status changes during the course of employment.

Sponsored post. Copyright © 2018 Kirsten Cluer, HR consultant and owner of Cluer HR