British employers have a legal responsibility to make sure that anyone working for them in the UK has the right to work here before they start their job. Recently, fines for non-compliance have tripled. Government authorities have also put more effort into auditing businesses who they suspect have sloppy identity verification processes for new workers. From January 2024, new regulations set the maximum fines at £60,000 per illegal worker, depending on the severity and recurrence of the violation.

In cases where the government believes that a company has been deliberately hiring illegal workers, there is also the possibility that the directors could be jailed for as long as five years. Many companies in the UK have a special licence which allows them to employ foreign workers.  If these businesses are found to have been breaking the rules, then their licence will be withdrawn. Any company operating in the UK must be prepared for an audit, so here’s what to expect.

What is a Statutory Excuse?

If the inspectors arrive in your company and start to audit your business, then don’t panic. They are both looking for illegal workers, and evidence that you have done everything you can to work out who is legally allowed to work in the UK. If you can prove that you did everything possible, and kept all the right paperwork, this is a defence known as a “statutory excuse”. It will let you off the hook in terms of any potential fines. In order to put in a statutory defence if one of your employees is found to be in the UK illegally you have to prove that you have carried out one of the following:

• Manual Right to Work check
• Home Office Right to Work check through their online portal
• Right to Work Check through an approved Identity Service provider (IDSP)

What is Involved in Right to Work checks?

Whatever methods you use for checking the right to work, you must do everything you can to make sure the documents you see to prove someone’s identity are genuine. Make sure documents actually relate to the person standing in front of you. Make copies of any documents someone presents to you, and keep them securely. This applies while the person is employed, and for two years after. Many employers choose to outsource Right to Work checks, but they have to ensure their chosen provider is keeping adequate records too.

Employers also should have a process for re-checking employees with time-limited work permits. Put dates for checks in the diary so that they are completed before the original permit expires. It’s also important to be mindful of legislation around discrimination and ensure that everyone is treated equally and fairly. Use the same process for right to work checks across all applicants and employees, including British citizens. Base employment decisions solely on job suitability, preventing indirect discrimination due to perceived or actual protected characteristics. It would be illegal, for example, to have a policy of only running Right to Work checks on people with certain appearance.