Reward insight
believe, that the person has no right to work in the UK. This amendment means that an employer can no longer evade prosecution where the investigating agency cannot prove that the employer knew that the employee had no permission to work. At this point it would be useful to explain what an illegal worker is. From 12 July 2016, a person is an illegal worker if they are: ● subject to immigration control and work when disqualified from doing so by reason of their immigration status, and ● at the time, knows or has reasonable cause to believe that they are disqualified from working because of their immigration status. A person is disqualified by reason of immigration status if: ● they have not been granted leave to enter or remain in the UK, or ● their leave to enter or remain in the UK: ❍ is invalid ❍ has ceased to have effect (whether because of curtailment, revocation, cancellation, passage of time, or otherwise), or ❍ is subject to a condition preventing them from doing work of that kind. Employment status is a critical factor for those working in payroll and it is important to note that the offence of illegal working is not limited to working under a contract of employment but covers all types of work including apprenticeships and self- employment. Right-to-work checks Employers have a duty to prevent illegal working, which means they should ask Undertaking these checks on all potential employees makes it easier for employers to ensure that they only employ people who have permission to carry out the work in question. By treating all job applicants in the same way at each stage of the recruitment process employers can ensure that they do not discriminate against any potential employees. There are three steps to conducting a right-to-work check: ● obtain the person’s original documents ● check them in the presence of the holder, and ● make and retain a clear copy of the everyone who they are considering employing to provide documents.
documents, and record the date of the check. The documents an employer can accept to verify a right to work are set out in two lists. ● List A – contains the range of documents which can be accepted for a person who has a permanent right to work in the UK. If these checks are carried out correctly following the three-step process outlined above, then no further checks are needed for the duration of that person’s employment. ...financial penalty of up to £20,000 for each illegal worker ● List B – sets out the documents which can be accepted from an individual who has a temporary right to work in the UK. If checks are correctly carried out then the worker is allowed to work for a limited period. Further checks must be undertaken, depending on the length of time they have been granted permission to work, to ensure the right to work remains in force. Documents must be checked in the presence of the holder. This can either be a physical presence or via a live video link, but in both cases the employer must actually be in possession of the original documents. It is not acceptable to inspect the document via a video link or by checking a faxed or scanned copy of the document. Responsibility for checking the document remains with the employer. Although the duty may be delegated to a member of staff, it cannot be delegated to a third party and the employer remains liable for any resulting penalty. A worry for many employers is being held accountable if it turns out they have been presented with false documentation. However, an employer will only be liable for a civil penalty if it is reasonably apparent that the document is false. The term ‘reasonably apparent’ means that a person who is untrained in the identification of false documents, examining it carefully but briefly, and without the use of technological aids, could reasonably be expected to realise that the document is not genuine.
An employer could also face prosecution if it is reasonably apparent that the person presenting the document is not the person referred to in that document, even if the document itself is genuine. Consequences of non- compliance Every business has its own recruitment process, but it is common for these types of checks to be undertaken by HR rather than the payroll department. However, given the consequences of non- compliance, it would be good practice to agree a process with HR in which you are able to verify that these checks have taken place before paying an individual. And there is a very good reason for this – in fact, 20,000 good reasons because an employer can face a penalty of up to £20,000 for each illegal worker they employ. And remember, it is the employer who is liable for that penalty, even if the actual check is performed by a member of staff or third party such as a payroll agent. However, if an employer correctly carries out the appropriate three-step document checks for each potential employee then they will have established a statutory excuse against liability for a civil penalty. That means that even if it later transpires that an employer has employed someone who does not have the right to work, but they have correctly conducted document checks as required, then they will not receive a civil penalty for that worker. But if an employer fails to carry out these checks correctly, or even at all, and they are found to have employed someone illegally then they could face a large financial penalty for each illegal worker as indicated above. And ignorance is no longer bliss. If an employer knows, or even has reasonable cause to believe, that they are employing someone who is not allowed to carry out the work in question, regardless of whether they have carried out a document check, then they may face up to five years in prison and/or an unlimited fine. n More information about all of the acceptable documents in List A and List B, together with examples of what they look like, can be found in the An employer’s guide to acceptable right to work documents (visit http://bit).
33
Issue 25 | November 2016
| Professional in Payroll, Pensions and Reward |
Made with FlippingBook flipbook maker