October 2016 will see the introduction of a criminal offence for an employee to work when he or she does not have a legal right to do so. Whilst this can be seen as a positive step as it makes the employee responsible for his or her actions, it does not take away the responsibility from an employer to also carry out its own checks.
The position regarding checking a right to work is quite straightforward for individuals engaged as employees within a business. The employer is obliged not to employ a person who does not have a valid and subsisting right to work in the UK, and can face up to a £20,000 fine for failing to do so. The position is also the same for employed agency workers, but how does this same responsibility transfer to PAYE temps, or workers operating via PSC or umbrella company arrangements? Is an employment business responsible?
Strictly, under the immigration legislation, responsibility for ensuring that an individual has a right to work in the UK falls only on an employer, in the truest sense of the word. However, the immigration legislation is not the only means by which a recruiter can be liable. The Conduct of Employment Agencies and Employment Businesses Regulations 2003 already oblige a recruiter to check that it would not be detrimental on a party for the worker to be engaged and that the worker has all authorisations required by law to undertake a role. In a regulated sector, such as those covered by the GLA, checks on rights to work may be important, and a check that individuals have a right to work in the UK would also be a good starting point for avoiding modern slavery and human trafficking. However, perhaps the biggest area of concern is in keeping the client happy. Theresa Mimnagh, Associate Director at Lawspeed said “it’s really common if you are operating on a client’s own contractual terms that there is a requirement to ensure that a worker has a right to work in the UK, or that checks have been carried out, but even if these obligations do not exist, supplying a person who does not have a right to work in the UK could be hugely damaging to your reputation and the commercial relationship”.
Mimnagh continued: “Whilst a check can be part of a standard process, common issues include obtaining ID evidence rather than evidence of a right to work, e.g. a driving licence; failing to repeat checks where a right is for a limited period; and making assumptions or relying on previous employment. Where multiple parties are in the contractual chain, it is also vital to ensure that contracts deal appropriately with responsibility and liability for these checks.
For advice relating to all aspects of recruitment law, including rights to work in the UK, client contract requirements and contracts with suppliers and contractors, contact Lawspeed on 01273 236 236.