Are you doing ‘right to work’ checks correctly?
Published: 05 Sep 2017 By Georgina Townshend
It’s crucial for all employers to ensure their employees have the right to work in the UK. And with so many staff in the pub industry coming from abroad, it’s a key part of the recruitment process.
If pubs fail to do these checks they risk employing illegal workers and the penalties for this can be fines of up to £20,000 per illegal worker, not to mention up to five years in prison.
There are three main steps to ensure employers get this right every time:
- Requesting and obtaining original documents, e.g. British Passport, work visa, residence card.
- Checking the documents in the presence of the person they relate to.
- Make and retain copies of each document and record the making of the check.
From single or multi-site operators, the issue of right to work checks forms a “significant challenge” for pubs, said CPL Training Group.
Daniel Davies, chief executive of CPL Training Group, said there could be wider implications for licensed premises, too, if they do not complete the correct checks.
“The Home Office can review or revoke a licence entirely for employing illegal workers,” he said.
“With this in mind, it’s vital for operators to have a robust system in place to check the right to work status of employees.
“It doesn’t matter how rigorous your checks are, it’s difficult to stop illegal workers from slipping through the net.
“However, by following the three-step method, pubs can be confident of operating on the right side of the law, thus minimising risks posed by Home Office regulations.”
CPL Training has recently launched the PeopleSearch database to help employers feel more confident about doing these checks.
The new tool enables publicans to validate ID documents which prove a person’s right to work status.
“It screens details against cloud-stored data to provide a ‘pass’ or ‘fail’ result – safeguarding your compliance with UK law,” said Davies.
Biggest mistakes pubs can make
Rachel Harvey, business immigration specialist at law firm Shakespeare Martineau, said one of the biggest mistakes pubs make is starting staff on a ‘trial basis’ without checking their documentation.
Harvey said: “However, if they were to be raided and can’t prove that the right checks have taken place, they could receive civil penalties of up to £20,000 per worker if they are found to be working there illegally.”
Desperate for staff not an excuse
Harvey says that the pressure to fill job vacancies can be “so intense” that it drives some licensees to allow individuals they know do not have the right to work to start employment simply because they are desperate for staff.
However, she emphasised this would be a criminal offence and could be “even more costly” for licensees.
Seek professional advice
Shakespeare Martineau also advises pubs to be aware of the civil penalty process and how to make objections in case they are found to be employing people who are not working in the country legally.
“If there is a genuine misunderstanding by the licensee, mitigation can be provided and the financial penalties can be reduced,” added Harvey.
“At this point, professional advice is the way forward but this can be avoided following the correct checks in the first place.”
Tijen Ahmet, legal director and business immigration specialist at Shakespeare Martineau added: “With many publicans likely to be scaling up their workforce over the coming months to meet the demands of the busy Christmas season, it is more important than ever that they adopt a meticulous approach to conducting right-to-work checks."
"While it can be tempting to allow new recruits to begin work immediately, pending the receipt of formal documents, this would constitute a severe breach of legislation."
"In addition to seeing a new staff member’s original documents in their presence, it is essential that employers take note of whether photographs and dates of birth, as given on passports and visa documents, correspond with the person standing in front of them."
"Similarly, where the name given on passport and visa documents is not consistent, requesting an additional document to explain the inconsistencies, for example, a marriage certificate, will allow publicans a sturdy excuse in the event a breach is found. "
“As well as ensuring they have a thorough process in place for conducting right-to-work checks on all new recruits, publicans should ensure they can prove the status of employees in the event they are ask to present this information to immigration enforcement officers by signing and dating copies of documents prior to their start date and retaining these copies for a minimum of two years after the worker ceases employment whilst complying with Data Protection laws."
Additional guidance of how to carry out the correct checks is available on the gov.uk website.