If you become aware that an employee has lost their right to work, your next steps will be critical to ensure you do not breach your obligations under UK immigration and employment laws.
In this comprehensive overview, we explore the necessary steps for employers and the various implications of an employee losing their right to work.
Duty to Prevent Illegal Working
It is worth reminding that all UK employers operate under a duty to prevent illegal working.
Failure to meet your duties under the Immigration, Asylum and Nationality Act 2006 can leave your organisation liable to a civil penalty if you employ someone who does not have the right to undertake the work in question.
If it is alleged you have knowingly employed someone who does not have the Right to Work, you could also face criminal sanctions.
Conducting right to work checks that comply with the latest Home Office guidance will help reduce the risk of hiring personnel unlawfully, and potentially mitigate or defend any alleged breach of compliance by way of statutory excuse. This could include carrying out online, digital or manual checks, or using the Home Office’s Employer Checking Service.
Changes in Right to Work Status of Employees
When performing a Right to Work check, you will be looking to determine if the individual holds an indefinite or temporary Right to Work. If indefinite, you will not need to conduct any further checks during their employment. If the individual only has limited leave to work in the UK, you will have to conduct follow-up checks to confirm this permission has been extended and that the individual continues to hold a valid Right to Work.
However, the reality is that employees who had previously held the correct permissions to work at the point of recruitment and onboarding may, for a number of possible reasons, subsequently lose their right to work during the course of their employment.
If you have reasonable cause to believe that an employee no longer has the right to work, yet you continue to employ them, you may become liable for a civil penalty of up to £20,000 per breach, and potentially for criminal prosecution punishable for up to 5 years imprisonment.
So what do you do if you discover an employee no longer has the Right to Work in the UK?
Understand why their status has changed
There are many reasons why a person’s Right to Work status may have changed. For example:
- their permission (ie visa) may have expired;
- their permission may have been revoked due to a breach of their visa conditions;
- their employer may have lost their sponsor licence;
- following a TUPE transfer, the new employer does not hold a sponsor licence.
It is important to clarify the reason for the change in the employee’s status, as this will influence your next steps.
You risk a civil penalty and criminal prosecution if you continue to employ that individual when they are no longer permitted to undertake the work in question.
Don’t, however, be hasty! Often the initial reaction may be to terminate the employee’s contract, to avoid any potential accusation of non-compliance.
But this move could expose you to risk elsewhere, such as a claim for race discrimination or unfair dismissal, where the employee has sufficient service with the organisation.
In addition, individuals suspended from work or sent on ‘gardening leave’ are generally considered to continue to be employees and as such, may continue to put you at risk of a civil penalty if they are not permitted to work.
Therefore, before you take action, consider all of the facts of the case and all of the options available to you.
- A revoked visa for example will require an almost immediate response, and may relate to a conduct issue.
- An expiring visa may have a longer lead time to address, during which time you could support the employee in applying for alternative immigration routes under which you can retain the employee. In this instance, the employee should demonstrate they have submitted an application to extend further leave to remain with the Home Office prior to the expiry date and that this is in active consideration. You can verify this using the Home Office Employer Checking Service.
- In some cases, the individual may assert they have the Right to Work but are unable to produce the relevant acceptable documents as evidence. Here, the potentially fair reason for dismissal of illegality could not be relied on to dismiss the employee fairly.
- Is the grace period available for ‘overstayers’, allowing the individual time to address their situation with the Home Office, and providing you more time to investigate and explore your options?
- For completeness – if you as an employer have lost your sponsor licence, your employees’ respective certificates of sponsorship also become cancelled, and their visas limited to 60 days, or however long remains on the visas where less than 60 days. Employees will have to leave the job and the UK unless they make a new visa application within that time.
- Likewise, if an individual is subject to a TUPE, and the new employer does not renew their licence within 28 days, employees’ visas will be limited to 60 days or however long remains on the visa where less than 60 days. Employees will have to leave the job and the UK unless a new visa application within that time.
Best practice
Employers facing concerns about an individual’s Right to Work should first focus on gathering facts by investigating the individual’s immigration status, where possible before their leave to remain is due to expire.
This requires good record keeping for all document checks, and in particular where an individual has temporary Right to Work, a clear record should be made of their visa expiry date to allow for a follow up check to be made in advance. Schedule a follow up with the employee 2-3 months before their visa is due to expire for confirmation of whether they intend to apply for further leave to remain, and to request they inform you when their application has been submitted to the Home Office.
If the employee confirms that they have an application pending with the Home Office, their lawful status will remain unchanged until the outcome of the application. The Employer Checking Service can be used in relation to pending applications. Usually, employers can rely on a 28 day grace period following expiry of an individual’s Right to Work before becoming criminally liable for illegal working.
In the event the employee fails to make a new application, it would be reasonable to meet with the individual to discuss the situation and the impact of loss of leave to remain on their continued lawful employment. At this stage, you should also make the individual aware that their contract could potentially be terminated as result of their loss of status.
If the individual is unable to provide proof of their continued Right to Work on the date their visa expires, the employer can start a procedure to consider dismissal.
Dismissal for loss of Right to Work
Employers should maintain their Right to Work and immigration policies and ensure that they provide clarity on responsibilities, and are up to date, effective and correctly applied. In the case of a dispute, it usually goes in an employer’s favour where its systems and process are deemed fair, consistent and reasonable.
As with all HR matters, before taking action you should develop and follow a fair process based on thorough investigation and factual evidence, which must be implemented consistently.
For example, if you are terminating an employee’s contract, ensure that the dismissal falls within one of the potentially fair reasons for dismissal.
Before an employer can terminate the individual’s contract, they must first take steps to ensure dismissal is the appropriate response and that the process of dismissal is fair.
At first, a meeting should be held with the employee to discuss their current status and their action to date to ensure continued lawful status.
If following an online check, the employer determines the individual no longer has the Right to Work, they may notify of their dismissal, usually without notice where there is a clause within the employment contract requiring proof of Right to Work, as this would give grounds for breach of contract. If there is no such contractual clause, the employer may opt to give PILON.
It will be important at this stage to offer the right to appeal, for example, in the event the individual is subsequently able to prove they continue to hold lawful status.
Changes in Right to Work rules
Right to Work legislation and guidance is a complex area and is subject to frequent change. Employers must stay abreast of developments and take action to adapt policies, processes and training to remain compliant. Ignorance is no defence, so it will be important to ensure as an employer you are both aware of changes and take action accordingly to ensure you remain compliant.
Need assistance?
The most effective strategy for employers to manage the risk of right to work compliance is through robust procedures implemented consistently across your organisation to prevent illegal working arising in the first place.
A systematic approach to document checking should cover all new employees, with further scheduled checks every 12 months for those with time-limited permission.
Also ensure that proper record-keeping and monitoring processes are in place, to identify when immigration permissions will expire.
A formal right to work process will help minimise the risk of illegal employment, and should enable you to rely on the ‘statutory excuse’ as a defence in the event of unintentionally employing someone unlawfully, even where the status changes during the course of employment.
Read more about meeting your right to work compliance duties and managing your List B employees.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
