Employers are required to complete a ‘right to work’ check on all staff, regardless of any post-Brexit changes in legislation, says Gemma Goodhead
I have a fluctuating workforce as my catering business is seasonal, and I often employ immigrant workers. With Brexit, should I be changing my processes to make sure everyone that I employ can work in the UK? What should I always be checking when taking on new members of staff?
The Home Office imposes the requirement for all employers in the UK to complete a ‘right to work’ check on their employees, even when the employee is a British citizen. This involves checking (before they start work) the employee’s immigration status (whether their passport, visa and/or another immigration document) to confirm they have the right to work in the UK.
To remain within the law when employing new staff, both now and post-Brexit, employers should check the employee’s immigration documents on their first day before permitting them to complete any work. If the employee forgets or refuses to bring their documents on their first day, the employer should not permit them to work until this requirement has been satisfied.
The Home Office has created a useful guide for those unsure on what they can accept as a right to work document and how to complete the right to work check at tinyurl.com/right2workcheck).
Currently, all UK, European Economic Area (EEA – EU members, Iceland, Liechtenstein and Norway) and Swiss nationals have the automatic right to reside and work in the UK, and require only their passports as evidence.
The government is proposing to preserve the right to stay in the UK for those EEA nationals residing in the UK before a date still to be determined, with those who entered after that date likely to be subject to a new visa regime.
Following the Brexit referendum vote, it may now be more difficult to fill seasonal roles without adapting them to attract more applications. As a result of the uncertainty, the number of job applications from EEA nationals may decrease until the policy is clearer.
Following Brexit and the introduction of a new visa regime for EEA nationals, businesses may suffer a skills shortage. This is particularly true in unskilled and low-skilled jobs and seasonal roles. This will result in businesses being forced to look at hiring British citizens/or foreign nationals who hold a visa permitting work (although, businesses should be careful not to decline to hire an EEA national because of the Brexit risks alone, as this may constitute discrimination on the grounds of nationality).
There has been a suggestion that after Brexit, the government may introduce a lowskilled/ temporary worker visa (the so-called ‘barista visa’) for the EEA nationals who may well fill seasonal roles. We wait to see how policy in this area will develop. Businesses may need to adapt their job offering to ensure they can fill seasonal roles. Options include increasing salaries or offering roles with guaranteed minimum hours.
• Check all prospective employees’ right to work in the UK – never make assumptions.
• Ensure you’re given the original documents – copies don’t count.
• Check that the documents are genuine – this includes ensuring that birth dates are consistent, the photographs are representative of the individual and that all documents are in date.
• Remember to always make a copy of the relevant documents.
• Keep on top of Brexit updates to ensure you are aware of any changes to EEA nationals’ right to work in the UK.
Employers who fail to carry out the right to work checks correctly and are found to be employing an illegal worker could face a penalty of up to £20,000 for every illegal worker they hire.
Employers who knowingly hire – or have reasonable cause to believe that they are hiring – an illegal worker will have committed a criminal offence and could face up to five years’ imprisonment and/or an unlimited fine – whether they have completed the relevant checks or not.
Gemma Goodhead is the head of immigration at SA Law firstname.lastname@example.org