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How to Handle Employees who are Unable to Prove their Ongoing Right to Work 

by Shoosmiths

Published: May, 2021

Submission: May, 2021

 



In the latest article in our Tricky Issues series, we consider the need for follow-up right to work checks, the steps employers should take to carry out such checks and the legal position when dismissal is a consideration.


“Why is a follow up check needed if I have already done a right to work check?”


Employers in the UK must carry out right to work checks with all employees before they start their employment. In some cases, an employee might only have time-limited leave to work in the UK. In such circumstances, the employer must carry out a further right to work check around the time of expiry of the employee’s current visa to ensure that the employee continues to have the right to work in the UK.


It is important that initial and follow-up right to work checks are carried out in line with the guidance issued by the Home Office. If an employee does not have the right to work in the UK, the employer may face a criminal penalty (unlimited fine and imprisonment) and/or a civil penalty of up to £20,000 per illegal worker. If the required right to work checks are not carried out properly, it will leave the employer without a statutory excuse against a civil penalty and at risk of criminal sanctions.


In most cases, employees will have an indefinite right to work in the UK. However, where it is less clear whether an employee can work in the UK, it can be a minefield for employers to navigate their positive duty to prevent illegal working and any employment rights owed to the employee.


“Isn’t it the employee’s responsibility to provide me with their right to work evidence?”


If there is a requirement in the employee’s contract of employment that they provide proof of their continuing right to work in the UK, then technically yes.


However, this will not excuse employers from complying with their own obligation to not employ illegal workers, and carrying out follow-up right to work checks (where required) is a fundamental part of this.


Having clear processes and records in place will provide a strong starting point for employers. A centralised diary noting the expiry dates of employees’ time-limited visas and check-in dates before the expiry date to remind employees to provide proof of their continuing right to work in the UK should prevent a follow-up check being missed. It will also put the need to provide further proof (and to apply for further leave) at the forefront of the employee’s mind.


Employers need to be proactive and should not sit back and wait for the employee to approach them.


“The current employee can’t provide me with their new visa – what do I do?”


Visa applications can take some time to be processed and new documents sent out. As a result, it is not unusual for an employee to have made an application for further leave but to be waiting for their new visa when the current one expires.


An individual will continue to have the right to work in the UK where they have applied for further leave, or appealed or sought review of a rejection of their application, before their current visa expires up until a decision is made.


In such circumstances, the employer must take steps to reasonably satisfy itself that the employee has applied for further leave before their current visa expired. The employee’s word that they have applied will not be enough and some form of documentary evidence will be needed, such as a copy of their application, screenshot of their online submission, a bank account statement showing payment of the application fee, etc.


If the employer is reasonably satisfied that the employee has made an application for further leave before their visa expired, they will have the benefit of a 28-day “grace” period from the expiry date. During the grace period, the employee must either provide proof that further leave has been granted or, alternatively, the employer must obtain a “positive verification notice” (“PVN”) from the Employer Checking Service (“ECS”).


A request should not be submitted to the ECS too soon, as it can take some time for applications to be uploaded onto the relevant system at the Home Office. Ideally, the employer should aim to wait at least 14 days after the employee made their application before submitting a check to the ECS.


If a PVN is received, this will provide the employer with a statutory excuse against a civil penalty for six months and the employee can continue working.


“What if the employee doesn’t provide me with anything or I do not receive a PVN?”


If the ECS believes that the employee does not have leave to remain in the UK, it will send the employer a “negative verification notice” (“NVN”). From time to time, a notice stating that it is unable to confirm whether or not the employee has leave might be sent to the employer. In either case, the employer would not continue to have a statutory excuse.


Alternatively, the employee may have provided no proof that they have applied for further leave, despite requests for them to do so.


It is important that employers act quickly in these circumstances, because if the employee’s visa has expired there could be a risk that they are working for the employer illegally.


“Can I dismiss straight away?”


If the employee has more than 2 years’ continuous service, they will have the right to bring a claim for unfair dismissal even if they do not have the right to work in the UK. Additionally, they will also have the right to pursue a “day one” claim (such as a discrimination claim). It is therefore important that employers do not act rashly when there is a concern that an employee might not have the right to work in the UK.


The employer should investigate and meet with the employee to discuss the matter. The employer should be careful not to let the process drag on for too long whilst ensuring that the employee also has some further time (say, 2 to 3 days) to obtain any evidence they can which shows that they continue to have the right to work in the UK.


Employers should consider putting the process on hold if the employee is able to provide proof that they applied for further leave before their visa expired to enable a further check to be carried out with the ECS.


If the employee is unable to provide suitable evidence at the meeting that they continue to have the right to work in the UK, their employment should be terminated.


If the employee has unfair dismissal rights, the employer will need to show a fair reason for dismissal. Although “illegality” is one of the potentially fair reasons for dismissal, this is a high threshold and can be difficult to satisfy in right to work scenarios, as the employee might well have the right to work in the UK even if they are unable to evidence this. “Some other substantial reason” is more likely to be the most relevant potentially fair reason for dismissal in such cases.


“Do I have to offer an appeal?”


Offering an appeal might be the safer option to show that the employer has carried out a reasonable process (particularly if the employee has unfair dismissal rights). It might also give the employee the opportunity to obtain evidence that they have applied for further leave in time. If they are able to do so and a PVN can be obtained from the ECS, the employer should give consideration to reinstating the employee.


“Do I have to pay notice pay?”


This is a grey area where the employer’s duty to not employ illegal workers might not sit comfortably with employment rights held by the employee.


If the employee’s contract of employment contains a clause requiring the employee to demonstrate that they have the right to work in the UK, the employer could dismiss without notice on the basis of the employee’s fundamental breach of a contractual obligation.


Employers might still choose to dismiss without notice or payment in lieu of notice where the contract of employment does not contain such a clause. This approach could risk a wrongful dismissal claim, but could be offered as part of any settlement negotiations if a claim is threatened.


 



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