All employers are under a statutory obligation to carry out right to work checks on ALL employees they recruit. Failure to carry out any, adequate or negligent checks can lead to a fine of up to £45,000 per employee for a first breach and £60,000 for repeated breaches. However, a defence or “statutory excuse” is available where it can be shown that before the employment commenced, you carried out online right to work checks using the Home Office’s online facility, a manual document check or a digital right to work check using the Identity Document Validation Technology (IDVT) via a Identity Service Provider (IDSP).
In a recent case, a fish and chip shop owner was fined £40,000 for employing someone who did not have a valid right to work in the UK, even though the owner carried out the right to work checks. The owner was given what appeared to be genuine information – this included the National Insurance Number, Student Loan payment plan, Housing Benefit receipts and a copy of the passport - the name on these documents matched the name on the passport. However, it transpired that the employee was using someone else’s identity. As the shop owner only obtained and checked a copy of the passport and the use of the National Insurance number was not proof of entitlement to work, he failed to meet the statutory excuse criteria, which led to the extortionate fine.
The case clearly highlights that employers MUST demand to see the original copies of relevant documents, not copies, keep/retain copies and then carry out the above-mentioned checks, to ensure that they relate to the individual concerned. Further checks must be carried out where the documents are defaced or there are signs that they may have been tampered with. Particular care should be taking when checking the names/spelling, dates of birth, any visa expiry dates. The checks must be carried out in the presence of the individual (either in person or via video link). Employers must record the date the checks were carried out, keep records for the duration of the employment and retain the records for 2yrs thereafter.
The severity of the fine imposed on a fish and chip shop demonstrates the rigorous and robust enforcement of the right to work check regime. ALWAYS demand to see original copies and exercise extra care in checking names, addresses, dates of birth, visa expiration dates and where documents appear damaged or defaced.
Employers are advised to call the HR Helpline on 01455 852 028, where they can be guided on their obligations and avoid hefty fines and adverse publicity.
