When immigration and employment laws overlap due to concerns about an individual’s ‘Right to Work’, it can be complex. Essentially, it is illegal for an employer to employ individuals who do not have the right to reside aswell as the appropriate permissions to work in the UK. Employing foreign nationals illegally can attract both civil and criminal sanctions in addition to affecting a company’s registered sponsorship status.

The individuals themselves can be found guilty of a criminal offence of ‘illegal working’, running the risk of fines, imprisonment or both.

An employee can lose the right to work in the UK at any time for a number of reasons, including:

• The expiration of their original immigration permission
• A breach of their immigration permission (by them or their employer)
• Their employer losing its sponsorship license
• The employee never having the right to work

TAKING ACTION

In the event that an employer discovers that an employee no longer has, or indeed never had, the right to work in the UK, most will turn to dismissal as their only option. However, employers must consider the need to prevent illegal working alongside its employment law duties towards the employee.

For employees who have the sufficient 2 years’ service, they will be entitled to bring a claim of unfair dismissal in the tribunal if their employment is terminated. However, it is likely that the Tribunal would rule in the employer’s favour if they can show that the employee's continued employment would contravene a statutory restriction (i.e. it would be illegal to continue to employ them).

An alternative option is to dismiss for ‘some other substantial reason’ (SOSR) on the basis that the employer genuinely and reasonably believed that the employee did not have the right to work in the UK.

To avoid any risk of a successful unfair dismissal claim, employers should follow a fair process before terminating and should carry out a thorough investigation into the employee’s immigration status. Relevant documents should be carefully reviewed and verified using the online government employer checking service. The employer must keep all evidence which shows the employee does not have the right to work in the UK. This could include a negative verification notice from the online employer checking service or a confirmation from the employee themselves. Employers can also use other methods like sponsorship under tier 2, or ancestry or dependant routes.

It may also be possible to dismiss an employee summarily for gross misconduct. This type of dismissal could apply in situations where, having requested the employee to produce their right to work documents, they fail to do so. This type of dismissal would only be appropriate if there has been a persistent failure to cooperate with requests to provide the documentation such that it amounts to severe insubordination or a failure to comply with a reasonable management instruction.

MINIMISING THE RISK

Employers can limit the risk of illegal working by carrying  out right to work checks on all employees at the recruitment stage. These checks should be repeated as necessary where it is flagged that employees have a time limit on their right to work in the UK.

Carrying out proper checks may provide a ‘statutory excuse’ against civil action. Therefore, employers should have systems in place to ensure that they carry out immigration status checks before the individual starts work. Documents that employees provide must comply with Home Office requirements and employers need to take reasonable steps to ensure that they are genuine.

Employers should also adopt appropriate record keeping and monitoring systems in order to keep on top of their obligations in relation to illegal working. Having a procedure in place will help to ensure that employers are prepared and know what to do if an individual's immigration status changes. If an employer knows that an individual’s right to work will expire in 12 months, they should carry out follow-up right to work checks, and arrange a meeting with that employee at least 3 months beforehand. This will provide sufficient time to discuss the steps required for the employee to apply for an extension, or for the employer to serve proper notice to terminate their employment.

It is advisable that employment contracts include a clause that requires employees to notify employers of any changes to their immigration status that might impact their right to work in the UK.

To minimise the potential risks when employing foreign nationals, employers should consider all the options and remember that each case will turn on its own facts and therefore it is advisable to seek legal assistance before making any decisions.

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