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When your employee doesn’t have the right to work…

Ensuring that employees have the right to work is an area that can often trip up employers, and getting it wrong can result in serious consequences including large fines and even prison time.

With the Home Office resource overstretched causing delays in obtaining visas, including those already in employment in the UK seeking to renew their visas, we look at common problems faced by employers in this area, and how to best deal with them.

What is Right to Work?

All employees must have the right to live and work in the UK in the role they are employed to do. It is unlawful to employ someone who does not have such rights, or is in breach of their conditions of stay. All employers are responsible for preventing illegal working and to do so should carry out “right to work” checks on all employees. If a right to work check is carried out correctly, the employer will receive a statutory excuse from a civil penalty, if it is later found that they have been employing the person (unbeknownst to them) illegally.

These checks should be carried out on prospective employees, before their employment begins. Follow-up checks are also required for employees who have time-limited right to work in the UK.

Why are right to work checks so important?

Failure to carry out these checks, or carrying them out incorrectly, can have serious consequences. Being found to be employing someone without the right to work can come with a fine (the maximum being £20,000 per illegal worker), as well as criminal penalties (an unlimited fine and/or imprisonment), removal of directorship and more.

In addition, if an employer is a sponsor licence holder the Home Office could take compliance action against their licence.

Therefore, it is crucial that employers understand their obligations to carry out these right to work checks, and carry them out correctly.

What should you do if you think an employee does not have the right to work?

If an employee is awaiting a new visa:

Individuals are required to apply for a new visa before their current visa expires if they want to continue to live and work in the UK. As part of your initial right to work checks, you should identify if someone has a time limited right to work in the UK and diarise to carry out a follow up right to work check.

In an ideal world, the employee will already have their new visa when the follow up check takes place and a normal right to work check can be carried out.  However, due to the significant delays that are currently plaguing the UK visa renewal process, this situation is becoming less common place.

In this non-ideal scenario, as long as you are reasonably satisfied that an employee made a valid visa application before their current visa expires, they can continue working for you even if their new visa has not been granted.

In order to be “reasonably satisfied”, you should ask them to provide you with documentary evidence, such as their visa application and payment confirmation from the Home Office (without payment the application will not be valid). This will then give you 28 days to obtain a Positive Verification Notice (PVN) from the Home Office’s Employer Checking Service (ECS). Receiving a PVN will allow the employee to continue working for you and excuse you from a civil penalty for a further six months. During this six months, the employee’s new visa should be granted, and you would carry out a further right to work check against this.

Where the employee fails to provide you with evidence that they have applied for a new visa, you will no longer be protected by a statutory excuse. Likewise, if you do receive documentary evidence of their new visa application, but then go on to receive a Negative Verification Notice through the ECS, you will not be protected, and steps will normally need to be taken to terminate the employment. How this is done will be dependent on the employee’s length of service.

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Dismissing employees for right to work concerns

If you have concerns that an employee does not have the right to work, you can begin to take steps to dismiss them.  There are sliding scales of concern and each case will need to be considered individually and the course of action, speed of action and process followed tailored appropriately.

For example, where the employee has less than 2 years’ service, they will be unable to bring a claim for ordinary unfair dismissal if they are dismissed.  Therefore if your concerns are serious, you may choose to act swiftly and terminate their employment with limited process but give them the opportunity to evidence their right to work as part of the appeal process.  If you are then satisfied that they do indeed have the right to work, their employment would be reinstated with back-pay.

Although an employee with less than 2 years’ service does not have unfair dismissal rights they can bring a claim for discrimination, and therefore employers need to be mindful of this.

Using another example, where you believe that the employee does have the right to work however the documents that they can provide do not meet the Home Office’s requirements, you may choose to continue their employment while they obtain the required evidence.

Weighing up the risk of employing an illegal worker against the risk of dismissing is key.

Naturally employers must be more cautious when the employee in question has 2 years’ service.  In this instance, the more appropriate course of action will be to hold an investigation meeting to explain that you are not currently satisfied with their right to work documents and asking them to provide evidence of their right to work by a certain date. As the individual may be working illegally it is important to give them a sufficient but short time to provide their evidence, perhaps only a few days.  It should also be made clear that if they are unable to provide evidence of their right to work by the deadline then they may be dismissed.

If the employee cannot provide satisfactory evidence of their right to work you should hold a second meeting and explain that, as they cannot demonstrate their right to work, you are terminating their employment. They would be afforded the right to appeal this decision.

Extra care should be taken when considering whether to dismiss someone with 2 or more years’ service because if the dismissal is unfair, they could have a successful claim even where they did not have the right to work. As such, you must ensure that you carry out a fair process and have a fair reason for the dismissal as set out in the Employment Rights Act 1996.

Most employers would be tempted rely on the potentially fair reason of illegality (breach of a statutory convention) however this may not always be appropriate.  Section 15 of the Immigration, Asylum and Nationality Act 2006 makes it unlawful to employ an adult who does not have the right to work, however there is no law against employing someone who cannot evidence their right to work.  Before relying on illegality as the reason for dismissal, it is therefore necessary to consider whether you are satisfied that the employee does not have the right to work, or whether it is the case that they can’t prove to you that they do.

If it is the latter, the alternative reason would be SOSR (some other substantial reason). It is also important to provide an employee with the chance to appeal in these circumstances. In Afzal v East London Pizza Ltd (t/a Domino’s Pizza), the Employment Appeal Tribunal held that where the employee was dismissed because the employer had a reasonable belief that they were not entitled to work in the UK, the employer should have offered them an appeal to allow them the chance to prove that they did have the right to work in the UK, which in this case would have meant they would have been reinstated.

Should you suspend employees over right to work concerns?

Although it may feel like a logical step to take, an individual on suspension is still employed by you even if they are not carrying out work, and therefore suspension does not solve the issue of you potentially employing an illegal worker.

Further, suspension should typically only be used in cases of misconduct or where there is a risk to an investigation. Suspension is therefore unlikely to be an appropriate course of action in these circumstances.

How to prevent issues with right to work arising:

You should ensure that staff are properly trained on carrying out right to work checks and that they understand the importance of carrying them out correctly and what to do when employees appear not to have the right to work. Training should also cover common pitfalls such as: not recording the date when the check was done, not conducting follow-up checks for employees with a time-limited right to work or conducting right to work checks after employment has already commenced.

If you are a sponsor licence holder, it may also be a good idea to do an audit to verify that all employees have a right to work in the UK. An audit will allow you to identify any issues before a Home Office compliance check, allowing you to take any necessary action first.

If you have any questions or queries about right to work checks, or if you would like to discuss another matter relating to immigration, please get in touch with our expert Immigration Lawyers.