- What is the Right to Work?
- Employer’s Legal Duty to Prevent Illegal Working
- What Happens When the Right-To-Work Status of An Employee Changes?
- Conditions that May Affect the Right to Work Status of an Employee
- How to Deal with an Employee Who Loses Their Right to Work
- Dismissing an Employee Who Loses Their Right to Work
- How Can IAS Help You?
What is the Right to Work?
The Right to Work in the UK is a set of regulations or legal permits that allow certain individuals to work in the country. There are certain limits to the right to work depending on the identity of the individual concerned.
Primarily, the immigration status of the individual dictates the conditions of their right to work. British and Irish citizens are automatically granted the right to work in the United Kingdom. You are considered a British citizen if:
- One or both of your parents is/are British citizens
- You were born in British territory inside or outside the UK
- You are from a British colony and were born before the year 1983.
Immigrants to the UK can also be granted the right to work in the UK. However, their exact situation is largely dependent on the time limit on their visa to live in the UK. Possible restrictions could include the kind of jobs you can apply for and the specific number of hours you can work.
If you are in the UK on a visitor visa, you will not be granted the right to work. However, there are specific instances where immigrants on visitor visas have been granted the right to work.
If you are an international student, you can only work for a specific number of hours. You can check your immigration documents or discuss with an advisor from your educational institution to find out the specifics pertaining to you.
Any employee who had their visa previously sponsored by an employer and has lost their job will need to apply for a different kind of visa or find a new employer to sponsor them. Asylum seekers are also not granted the right to work in the UK.
It is advisable to keep to the specific instructions pertaining to your right to work at all times. Immigrants should not work in roles they are not permitted to take and must not work more hours than is allowed. Failure to comply can lead to severe penalties, including a fine and having their visas withdrawn.
Employer’s Legal Duty to Prevent Illegal Working
All UK employers are tasked with the legal responsibility to ensure that illegal working does not occur under their watch. The Immigration, Asylum and Nationality Act of 2006 ensures that employers that fail to carry out this duty are exposed to civil penalties depending on the gravity of the situation.
Employers are advised to check the right-to-work status of their employees. They must also not employ workers that do not have the right to work. Employing a person without the right to work will most likely result in very severe criminal sanctions for all concerned.
The Home Office has prescribed certain document checks that employers can carry out to verify the right-to-work status of their employees. Carrying out these checks will minimise the risk of unlawfully employing workers.
Summarily, employers must check and keep copies of relevant documents in advised formats for all employees regardless of nationality.
What Happens When the Right-To-Work Status of An Employee Changes?
The right-to-work status of an employee can change based on their immigration status. As an employer, the main reason for carrying out a right-to-work check is to verify if the potential employee has a temporary or permanent right to work in the UK.
If the right to work is permanent, there is no need to carry out additional checks for the period of their employment with your organization. However, suppose the right to work is only temporary. You must conduct regular checks to confirm if the employee has extended their valid permit to continue working in the UK.
In some situations, employees that previously had the right to work lose this right for certain reasons. This is when the checks become very important.
You cannot continue employing a worker who has lost their right to work in the UK. If you continue to employ them, you may be fined up to about £20,000 for each breach of employment and/or face criminal prosecution (up to 5 years in prison). Once an employee has had their right-to-work status changed, the employer should try to know why their right-to-work status has changed.
Conditions that May Affect the Right to Work Status of an Employee
Employees’ right-to-work status can change for several reasons, including the following:
- The employee’s visa or valid UK stay permit may have expired
- The employee could have had their visa or stay permit revoked
- The employer can also lose their sponsor license and become unable to sponsor their employees’ visas
- A TUPE transfer may occur, and the new employer may need a sponsor license.
How to Deal with an Employee Who Loses Their Right to Work
Employers must verify why the right-to-work status of their employees has changed, as this will inform their next steps. As already pointed out, you could face both civil and criminal charges if you retain an employee that has lost their right to work.
You should also know that suspending the employee from work will not work. Suspended employees are considered legally employed by their organizations, which could expose the employer to a civil penalty if they are not permitted to work.
Before employers take action, they must consider all the facts and weigh all their available options.
- Expiring visas generally take longer to address. The employer may help the employee apply for other visa types that allow them to keep their employee. However, in these situations, the employee must have submitted an application for an extension of their visa to the Home Office before the expiry date of their current visa. The extension application must also be actively under consideration before the employer can step in.
- The employee may claim to have the right to work but is unable to present the necessary documentation. In this case, it is impossible to rely on the claim of dismissal on the grounds of illegality. You can verify the immigration status of the employee on the Home Office Employer Checking Service.
- The overstayer could also have a grace period granted to them, allowing them to rectify the situation with the Home Office. Situations like this also afford employers more time to investigate the situation.
- Suppose the employer has lost their sponsor license; the employee has 60 days or less (depending on how much time is left on their current visa) to apply for a new visa.
- Suppose the employee has been subjected to a TUPE, and the new employer doesn’t have a sponsor licence within 28 days of employment; the employee has 60 days or less to apply for a new visa.
Dismissing an Employee Who Loses Their Right to Work
If an employee had their visa revoked, an employer may dismiss them immediately since revoked visas are related to issues of conduct. If an employee loses their right to work resulting from other factors like the expiration of documents or their visa application being denied, employers need to handle the situation cautiously.
Firstly, employers should check if the employee has applied for a new visa and still has the right to work. They should take into account if there is any reasonable prospect of the employee’s visa being granted. If not, employers should be prepared to discuss the options with their employees and provide practical support if needed. Then, employers should consult with the Employer Checking Service for confirmation of any outstanding application. If a negative response is received (after giving sufficient time, say the grace period), they should hold a further meeting with the employee on the same day during which dismissal from employment should be notified upon expiration of the current right to work of the employee.
Employers should take the following steps to ensure compliance with regulations:
- Ensure an Employment Termination Notice is issued to the employee, which records that the employee has lost their right to work in the UK and ended their employment on a specific date.
- Keep all necessary records, including copies of documents, evidence of the right to work check and details of the termination of the employee’s employment.
- It is recommended employers offer an employee the right to appeal to avoid the risk of an unfair dismissal claim if, in fact, the employee is not working illegally.
- Make sure all relevant documentation relating to the termination is kept on file, including any evidence that the employee had the right to work in the UK at the time of their employment.
- Make sure all payroll operations, such as final salary payments, are made promptly and accurately according to contractual terms agreed with the employee.
- Provide additional support for employees who need advice and help on returning to their home country or applying for a new visa, if necessary.
- Ensure that any personal data relating to the employee is kept confidential and secure, in accordance with GDPR regulations.
Finally, employers should make sure that they have an effective system in place for regularly checking the right-to-work status of employees at all times.
At IAS, we understand that the legalities surrounding the right to work can be complex. Furthermore, each immigrant employee is likely to have a unique situation regarding their right to work, which might seem confusing. Our team of dedicated experts is here to help you navigate these complexities and ensure that your immigrant employees always have the necessary documents and permissions to work legally with your organization.
Whether you need assistance verifying that a worker has the right to work or you have an employee that just lost their right to work in the UK, our team of specialists can provide invaluable guidance that will give you peace of mind. Contact us today at 0333 305 9375 to find out how we can help in your specific situation. We’re here to help ensure that your organization is compliant with all relevant regulations in regard to the right to work. Don’t hesitate – get in touch today!
Last modified on March 6th, 2023 at 11:36 am
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