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FDR Law Legal Clinic - Eligibility to Work

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Kim Hayton, HR Director discusses Eligibility to Work

Q: What is meant by ‘Right to Work’?   

A: Employers must carry out checks on all new employees before they start work, and they must have had visibility of original documentation to prove the person’s identity and their eligibility to work in the UK e.g. a valid passport, full birth certificate. 

Last year the Home Office increased the penalties under the new Immigration Act 2016 for businesses not complying with employee checks on eligibility to work in the UK.  Failure to comply applies to organisations that have been caught using illegal workers or who have broken the law by not having records.

For non-EU workers additional Home Office documentation is required i.e. a residence permit with evidence of any conditions, limitations or restrictions to their stay or the amount of hours they are able to work.

On the www.gov.uk is a list of accepted documentation and guidance confirming how to examine and verify documentation presented; e.g checking the quality of paper, photographs and checking consistency of the date of birth across all documents. Businesses should take a copy of documents presented and record the date copied certifying as a true copy for their records.

The Home Office conducts spot checks and if non-compliant a business can be immediately closed for up to 48 hours and placed under special compliance requirements.  This includes a period of continued closure, a fine of up to £20,000 per illegal worker and named on the Home Office website.   In addition employers could be jailed for a maximum of five years and illegal workers could face a prison sentence for up to six months and their wages seized.

Employers holding a sponsor licence to employ a non-EU worker have a legal obligation to keep specific records of market test evidence, professional accreditations and copies of pay slips.  Failure to attend work, unexplained absences or any significant changes in an employee’s circumstances are required to be reported promptly, to avoid the business will having their licence suspended or revoked.

To discuss any aspect of Right to Work contact Kim Hayton on 01925 230000 or email kim.hayton@fdrlaw.co.uk