All employers in the UK have an obligation to ensure that all prospective employees have the legal right to work in the UK. The only way as an employer that you can safely carry out this check and avoid potential discriminatory claims, is to carry out the same check on all new employees, ideally before they start.
Not only could the company be liable for a fine of up to £20,000 (for each employee found to be working without a legal right to work in the UK); knowingly employing illegal workers is also a criminal offence and as of 12th July 2016, carries a 5-year prison sentence and unlimited fines.
So what checks need to be carried out?
In simple terms, the 3-step check is
OBTAIN: request and obtain the employee’s original identity documents as listed in the Home Office guidance (prescribed lists only). Please note:
- Certificate of Entitlement to the Right to Abode (must be endorsed in a valid passport).
- EEA Residence Documentation vignette (issued to family members of EEA nationals) acceptable in expired
- Indefinite Leave to Remain (ILR) stamps and vignettes (must be endorsed in a valid passport).
- Entry Clearance Vignette issued to a person prior to their arrival in the UK (must be endorsed in a valid passport).
- UK Residence Permit Vignette (must be endorsed in a valid passport).
- Application Registration Cards (ARC’s): cards endorsed with permission to work MUST be referred to the Employee Checking Service (ECS) before employment starts.
- Home Office Travel Documents are not acceptable for this purpose.
CHECK: review the documents obtained and check that they are valid with the employee present.
- Check for impersonation: Compare photograph with the person and look for key facial features (chin, lips ear shape, eyes and their relation to the face as a whole); visible marks; signature of document holder and other details as provided or known about the individual.
- Check for evidence of counterfeiting: The most obvious being spelling mistakes, check watermarks, quality of the paper used.
- Check for evidence of forgery: evidence of page or photo substitution, do all the pages align, is the stitching correct, wrinkled pages or alteration to details.
COPY: take copies of the original documents (copy any page containing biographical data name, DoB, nationality, photograph, signature, expiry date, plus any page endorsed with their entitlement to live and work in the UK), sign and date each page to indicate who took the copies.
So what happens if a new employee can’t provide the requisite documents?
Employment should not start until you have carried out the above checks. If for practicality reasons employment has started, then your offer documentation should clearly indicate that the offer is conditional on amongst other things (e.g. satisfactory references, probation period etc) and an employee providing the correct evidence of their right to work in the UK.