How to build a statutory excuse to illegal working and avoid costly mistakes
With immigration high on the political agenda, it is more important than ever that UK employers, of all sizes, are up to date with their right to work checks.
Since July 2016, employers found guilty of employing someone who they knew or had reasonable cause to know did not have the right to work in the UK could face an unlimited fine and a custodial sentence of up to 5 years. Work for the purposes of this offence is drafted widely and includes employees, apprentices, workers and self-employed contractor. The number of criminal prosecutions is relatively low (figures for 2014 indicate there were only between 14-21 prosecutions a year) and the chances of the CPS taking on a case are slim where there’s a high degree of co-operation. However, civil penalties of up to £20,000 per illegal worker are also available and are a strong possibility, unless an employer can establish a “statutory excuse”, by checking certain original documents prior to the commencement of the employment or engagement. Employers who can establish a statutory excuse will be blameless and will escape all penalties if it later transpires that one or more of their employees has been working illegally (e.g. through using forged documentation).
The statutory excuse is not simply a matter of taking a copy of a document, signing and dating a copy. The check will not be valid unless:
Reasonable steps have been taken to check the documents’ validity
The likeness of any photograph is confirmed
The date of birth is checked
All reasonable steps are taken to ensure that the document belongs to the prospective employee
The initial check is crucial. If it is not conducted properly the employer cannot backtrack and re-establish the excuse at a later date during the employment, even if the employer subsequently carries out what would otherwise have been a valid check. It is, therefore, essential that the original documentation is provided before the employment commences. Evidence of the date of the check is now a compulsory requirement too, so undated copies of documents have little, if any, value.
The Home Office’s Right to Work checklist (below) is a helpful tool as it reminds the user to perform the identity check and sign and date to confirm the check has been performed completely and at the right time. It also highlights that List A document give a permanent excuse while List B give a time-limited excuse. Repeat checks are required for List B scenarios if the excuse is to be extended. If the repeat check is missed it doesn’t mean that the employment is illegal, it means only that the employer will not have an excuse to avoid payment of the civil penalty if illegal working is identified.
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