LRD guides and handbook June 2016

Law at Work 2016

Chapter 3

The right to work in the UK 


[ch 3: pages 67-69]

It is a criminal offence to employ someone with no legal right to work in the UK. Employers are legally obliged to carry out checks on a person’s right to work before employing them. 


The Immigration, Asylum and Nationality Act 2006 (IANA 06) requires employers to ask all potential recruits for documentation to prove their right to work in the UK before employing them. Only documents from a specified list are allowed. Original documents should be checked in the presence of the holder, and a copy taken and retained. 


IANA 06 introduced two new offences: negligently employing an illegal worker, which is a civil offence with financial penalties; and deliberately employing an illegal worker, which is punishable by a fine and/or imprisonment. The maximum civil penalty for employing each illegal worker is £20,000 (Immigration Act 2014 (IA 14)). 


Checks must be completed before the individual starts work. Where the worker has limited right to remain in the UK, employers must repeat the immigration check when their leave is due to expire. International students with limited right to remain must show that they are following a course of study and give their employer evidence of term dates and vacations.


IA 14 removed the defence for employers who carry out a partial check by, for example, looking at photocopies instead of originals. Only a full check provides a defence to an employer later found to have taken on an illegal worker. 


Right to work checks on staff after a TUPE transfer (see Chapter 12) must be conducted within 60 days of the transfer date. 


Employers must ask all job applicants to prove their right to work in the UK. Selecting only some individuals based on assumptions about their right to work is likely to be race discrimination. A statutory Code of Practice, Avoiding discrimination while preventing illegal working, is available on the Home Office website. The Code can be taken into account in employment tribunal proceedings.


Employers can, and usually do, make job offers conditional on the worker having the right to work in the UK.


In January 2015, it became illegal for employment agencies and businesses to advertise jobs in the rest of the European Economic Area (EEA) unless they also advertise them in Great Britain in English. Since not all jobs are routinely advertised, the government launched a fresh consultation in October 2015 to create an additional legal obligation on agencies and businesses - to advertise vacancies in the UK and in English, at the same time as, or 28 days before, any recruitment activity elsewhere in the EEA. There are already strict limits in place on recruiting for UK jobs outside the EEA.


Since 2008, recruitment from outside the EEA (known as “Tier 2 workers”) has been subject to a Points Based System and any applicant must have an employer sponsor. The government allocates an annual quota of 20,700 Restricted Certificates of Sponsorship, divided over 12 equal months, and with priority to those skilled in a “shortage occupation”. There are already language requirements in place for these workers. There are also rules in place setting minimum salary levels. In April 2016, a new minimum salary requirement of £35,000 was introduced for Tier 2 workers seeking indefinite leave to remain in the UK. There are some occupational exceptions.


An employer must not discriminate against any employee who needs sponsorship to apply for or continue in their role, for example, by automatically ruling them out, because the employer assumes they will not be awarded the necessary visa or extension. 


More changes to immigration laws


The Immigration Act 2016 received Royal Assent on 12 May 2016. Here are some of the Act’s key provisions affecting employment: 


• a new criminal offence of illegal working, including individuals who overstay their visas, with a new power for police to seize the wages of undocumented workers and new measures making it easier to evict these workers and harder for them to have a bank account or hold a driving licence;


• creation of a new regulatory body — the Director of Labour Market Enforcement, with overall authority over enforcement of labour market offences, including HMRC national minimum wage enforcement, the licensing and enforcement activities of the Gangmasters Licensing Authority (renamed the Gangmasters and Labour Abuse Authority) and offences under the Modern Slavery Act 2015;


• greater data-sharing between regulators on labour market enforcement strategy; 


• new Labour Market Enforcement Undertakings and Orders, linked to labour market offences and aimed at employers who repeatedly break employment laws, including national minimum wage regulations, with a potential two year prison sentence; 


• increasing from two to five years the prison term for employing workers who an employer knows or should know have no right to work in the UK;


• reforming the Gangmasters Licensing Authority — see below; 


• a new requirement on public authorities to ensure anyone who works for a public authority in a “customer-facing” role (including as an agency worker or an apprentice) speaks “fluent English” (section 59, IA 15). A role is “customer facing” if a regular and intrinsic part of the role requires speaking to members of the public in English. Fluent English is a command of spoken English good enough for the effective performance of the role. There will be a Code of Practice and in Wales the language may be English or Welsh.