Why are employers failing to carry out ‘right to work’ checks?

Why is it that so many small businesses are flouting the law when it comes to right to work checks?

Free employer’s guides to carrying out the appropriate checks are available from www.gov.uk, ACAS, the Chamber of Commerce and many other business support services. My experience of working with business owners since 2014 leads me to believe that the simple answer is; they don’t realise they are!

A high percentage of the HR Audits that I have conducted since 2014 in small businesses (less than 50 employees) have failed and the number one reason is that their process for conducting right to work checks is not fit for purpose. However, when their legal obligation is explained to them it is clear to me that they have simply misunderstood what is required of them. Sadly, this is no legal defence. Some employers have told me that they don’t conduct the checks themselves because they assume their recruitment agency has. One employer explained that he only checked the passports of people that were not from the UK (this would be discriminatory) and another thought that because he was checking driving licenses he didn’t need to check passports.

Now let’s be clear that all of these employers had acted with the best intentions. None of them were actively seeking to flout the law but none of them realised the risk to their business either.

Why should employers take more care?

Carrying out prescribed document checks on people before employing them and validating their right to work is the only way employers can protect themselves and meet their legal obligations. Sounds easy, right? But in practice, if you are the owner or manager of a small business (the employer), you have a million other things that you need to know and it’s only natural that your focus will be on operational challenges.

According to the Office of National Statistics, at the start of 2016 there were 5.5 million private sector businesses in the UK of which 99.3% were small businesses employing less than 50 people. These small businesses, employ approximately 12.5 million people and contribute 33% of total private sector turnover (revenue). With these business owners and managers working so hard and contributing so much to the UK economy, there will always be much juggling of responsibilities by leaders.

The Immigration, Asylum and Nationality Act 2006 (the Act) came into force in February 2008. Under section 15 of the Act, an employer may be liable for a civil penalty if they employ someone who does not have the right to undertake the work in question. In 2014, this penalty was increased to between £15,000 and £20,000 per employee, not to mention the impact of poor publicity on a successful business.

If you are a business owner or manager, please consider that your only defence under the Act would be a statutory excuse, which is where you have complied with the prescribed right to work checks and have unknowingly employed an illegal worker. If you simply have not carried out the prescribed document check, whatever the reason, you will have no defence.

What employers can do to ensure they are acting lawfully.

It must make sound business and financial sense then to make sure that you or someone in your business checks that the person you want to employ is allowed to work in the UK before you employ them? You can start by using the free government online tool here https://www.gov.uk/legal-right-work-uk

For those more complex cases or if you just don’t have the time to do this yourself I can help, contact me to find out how!

To add more value, you might want to consider conducting additional background checks. Through a background checking service called ‘Know Your People’, I can validate your candidate’s identity and carry out a range of background checks (where appropriate) according to the position.

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