16th July 2018
Employers who employ any employees over the age of 16 in any part of the United Kingdom under a contract of service or apprenticeship are legally bound by the Right to Work checks that must be carried out.
Home Office: Code of Practice on preventing illegal working: Civil penalty scheme for employers prescribes that employers must carry out checks prior to the commencement of and during employment.
Click here to view the official UK Government Documentation.
It is the employer’s continuous legal responsibility for ensuring that they are carrying out the Right to Work checks. Checks can be carried out:
b. By its human resources department; or
c. By any other person/department.
IF A BREACH IS ALLEGED
Civil Penalty – No Action Notice
If it is evident that the Right to Work checks have been complied with then a No Action Notice will be issued by the Secretary of State for the Home Department (‘the SSHD’).
Civil Penalty – If an employer is alleged to be in breach
If the Home Office has reasons to believe that the Right to Work scheme has been breached by an employer then:
1. A Referral Notice will be issued putting the employer on notice that they are under investigation.
2. The employer would then be sent an Information Request providing them with an opportunity to present information and evidence to show that the correct Right to Work checks were carried out.
The SSHD will then proceed to issue one of the following, either:
a) A No Action Notice whereby the employer will have been deemed to have complied with the Right to Work checks and thus not be liable to pay any civil penalty.
b) A Warning Notice whereby the employer will be given a formal warning despite not having satisfied the Right to Work checks however will not be liable to pay any civil penalty
c) A Civil Penalty Notice whereby the employer will be liable to pay a civil penalty of up to £20,000.00 for each illegal employee employed.
If a Civil Penalty Notice is issued, the employer has an opportunity to object in writing within 28 days. The SSHD will consider the written Objection and provide one of the following within 28 days:
(i) a Warning Notice whereby the employer will not be liable to pay any civil penalty.
(ii) a New Civil Penalty Notice – Penalty Increase
(iii) an Objection Outcome Notice – Penalty Maintained
(iv) an Objection Outcome Notice – Penalty Reduced
(v) an Objection Outcome Notice – Penalty Cancelled whereby the employer will not be liable to pay any civil penalty.
If the Civil Penalty Notice is maintained by the SSHD as per paragraphs (ii), (iii) or (iv) above or no decision is made within 28 days then the employer may Appeal against the Civil Penalty Notice on grounds that:
(a) they are not liable for a civil penalty
(b) they have a statutory excuse, or
(c) the level of civil penalty is too high.
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