How to check right to work status to avoid hefty penalties

Farmers must do a right to work check before hiring anyone to make sure that that person is legally allowed to do the work in question.

The obligation to conduct a check is universal, whether a farm business is recruiting from the UK or overseas for a full-time, part-time, permanent, or temporary position, advises Sacha Wooldridge, a solicitor specialising in UK immigration and nationality law.

While it is rare for a farmer to knowingly employ an illegal worker, she cautions that making an assumption about a person’s eligibility to work in the UK or their immigration status is not a mitigating factor in the eyes of the Home Office.

“Farming is no different to any other industry – employers need to understand exactly who they’re hiring,” says Sacha, of law firm Birketts.

See also: More advice on farm staff management 

UK and Irish citizens

For UK and Irish citizens, their passport, or birth certificate with proof of a National Insurance (NI) number, are both sufficient to establish a right to work in the UK.

If the prospective worker is a citizen of another country, the process involves a  ‘share code’ system.

“It is similar to when you hire a car from a car rental company and you have to show proof of your driving record,” Sacha explains.

The job seeker inputs their identity details, such as name, date of birth and visa information, into the section on the Home Office website that deals with right to work checks, with a share code generated from this information.

The employer must input this code into another section on the same website to get confirmation of right to work status.

Details such as restrictions on the number of permitted work hours and their visa expiry date will also be flagged up. The process is free of charge, digital and instantaneous.

“It is very straightforward to do, so there is no reason not to do it because the penalties for failing to do so are huge,” says Sacha.

She has known the Home Office impose the maximum level of fine but this has more typically been in the construction sector.

It is not the failure to carry out a check that attracts a fine, but employing an illegal worker, and failing to establish that by checking in the first place.

Follow-up checks are important

The risk of a penalty exists even when an initial check has been done but the employer has failed to carry out follow-up checks, such as for employees who have time-limited visas.

These checks should be carried before the visa expires.

Among businesses that have got this wrong is one operating in the food production sector, which was fined for failing to renew a right to work check.

When an employee whose visa had lapsed reapplied for this, the Home Office became aware that the employer hadn’t done the follow-up check and was therefore employing an illegal worker.

The business was fined even though it had done the right thing initially by carrying out that first check.

Employers must keep records of checks.

In the event of a Home Office investigation, this can help to demonstrate that the necessary checks have been done and that reasonable steps have been taken to ensure their staff have the right to work in the UK.

It can also help to protect the employer from liability if an employee is found to be working illegally, avoiding or reducing any penalty. This is one of several mitigating factors that can lower the level of a fine.

“If an employer knowingly employed someone illegally, £60,000 is the maximum penalty, but there are mitigating factors that can reduce this – for example, if the check had been done but it had expired, if the employer co-operates, or if the fine is paid quickly,” says Sacha.

Criminal charges can also be brought.

This can lead to unlimited fines and five years’ imprisonment for those found guilty of employing someone who they knew or had “reasonable cause to believe” did not have the right to work in the UK.

Reputational damage

For a larger business, what can potentially be more damaging than a financial penalty is reputational damage.

For example, a large-scale vegetable producer that breaches the rules and is supplying a major supermarket could lose a contract or struggle to secure others.

The Home Office publishes a quarterly list, naming and shaming businesses that have employed an illegal worker and been fined.

“No business wants to be on that list because their buyers won’t want their brand tarnished by association,” says Sacha.

For an employer who realises that they have overlooked a check, she recommends that they do that check even if it is several months down the line.

“It is better to do the check late rather than never because you will only get penalised if the worker is working illegally and you can’t be completely confident that they are not until you do, even if you are 99% certain that everything is fine.

Change of circumstances

“Also, while they might not have been an illegal worker when first recruited, that status can change where, for example, they were here on a spouse visa and then get divorced.

“That change of circumstance can mean that they are no longer entitled to work in the UK.”

If during this process there is a question mark over a right to work, Sacha suggests that suspending the worker while the employee attempts to secure alternative status rights can be appropriate, as it means they are not doing productive work during that period.

“A suspension can be appropriate if the issue can be rectified relatively quickly, a week perhaps, but others will want to protect the business and dismiss the worker.”