Legal Q&A: The right to work in the UK

Under Section 8 of the Asylum and Immigration Act 1996, it is a criminal offence to employ someone aged 16 or older who does not have the right to work in the UK or the right to do the type of work offered to them. By Linda Farrell, partner, Bristows.

On 1 May 2004, significant changes were introduced to the type of checks that employers must carry out before employing someone, but it appears there is still widespread confusion as to what employers are actually required to do.

Q Can I take someone on and carry out the checks afterwards, and then terminate their contract if I am not satisfied with the documents they produce?

A No. Employers have a statutory defence to the criminal offence of employing an illegal worker provided they check and copy certain original documents before the employment commences.

The most common document that employers will request is a 'secure' document, such as a UK or European Economic Area (EEA) passport, a national ID card or a UK residence permit. Otherwise, two verifying documents will be required from lists set out in the Immigration (Restrictions on Employment) Order 2004. A p45 alone is insufficient.

Q I have been provided with acceptable ID - what do I have to do next?

A Employers are required to take reasonable steps to satisfy themselves that their prospective employee is the rightful holder of any documents presented to them, and that the documents allow the employee to do the type of work offered. The documents must then be photocopied or scanned in their entirety (apart from passports and other travel documents where only the front cover and the pages giving personal details - including photograph, signature and any relevant endorsements - need be captured).A record of everything copied or scanned must be kept.

Q Does the same apply to the latest EU accession states?

A Employers must carry out the same standard checks for nationals of all the countries that joined the EEA on 1 May 2004. For nationals of all those countries (apart from Cyprus and Malta), employers are required to ensure that prospective employees (subject to some exemptions) register with the Home Office under the Workers Registration Scheme.

Exempt nationals include those on the Seasonal Agricultural Worker Scheme (SAWS) with a valid SAWS card, those offering services on a self-employed basis whose fees are not paid directly by the employer, and nationals who have been employed in the UK without interruption (any periods of unemployment must not exceed 30 days in total) for 12 months.

Q Suppose I get an application from a 'Mr John Smith', who is white, and gives his National Insurance number, and states his nationality as British. Do I have to carry out the same checks?

A To avoid a race discrimination claim, employers should not make assumptions based on names, colour, appearance or accent, and should treat all job applicants in the same way. Furthermore, immigration status is irrelevant. Employers have to satisfy themselves that the applicant has the right to work in the UK.

Q What will happen if I fail to carry out these checks?

A An employer who employs an illegal worker without carrying out all the necessary checks is liable to be fined up to £5,000 for each person that they illegally employ.

Q Where can I find out more information on this subject?

A The Home Office has produced a short guide and a more detailed comprehensive guide for UK employers. Both documents are available on the Home Office website (www.ind.homeoffice.gov.uk/ind/en/home/0/preventing_illegal.html).

Later this year, the Home Office is to issue a code of practice to help employers comply with this legislation without inadvertently discriminating against individuals on the basis of their race, ethnicity or religion.