What to Do When an Employee Loses Their Right to Work

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.

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.

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.