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When an employee no longer has a Right to Work in the UK

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As a UK employer, you are under a duty to prevent illegal working.

Following the Home Office’s prescribed document checks will help reduce the risk of hiring personnel unlawfully.

However, instances can and do arise where employees who held the correct permissions to work at the point of recruitment, for a number of possible reasons, 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 continue to employ them, you become liable for a civil penalty of up to £20,000 per illegal employee, and criminal prosecution with 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 may have expired;

    • their permission may have been revoked due to a breach;

    • 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.

What next?

You need to take action. You risk a civil penalty and criminal prosecution if you continue to employ that individual and 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 investigate 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.

  • ‘Overstayers’ may be able to invoke the 28 day grace period, allowing the employee time to address their situation with the Home Office, and providing you more time to investigate.

  • 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.

  • 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.

As with all HR matters, you should develop and follow a fair process based on thorough investigation and factual evidence.

For example, if you are terminating an employee's contract, ensure that the dismissal falls within one of the potentially fair reasons for dismissal.

Prevention is best

Put procedures in place to prevent illegal working from occurring 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.

DavidsonMorris is a specialist firm of immigration solicitors based in London and Aberdeen advising organisations and individuals on their immigration needs.

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