What employers need to know about right to work checks and the statutory excuse

For those who may not have heard of it, "Only an Excuse" is a BBC Scotland show that takes a comedic look at Scottish football.

It certainly shouldn't be confused with "the statutory excuse" in immigration law, which is vitally important for employers – even more so than football, no matter the famous quote from the legendary Bill Shankly that "Some people believe football is a matter of life and death … I can assure you it is much more important than that!"

What is the statutory excuse and why does it matter?

It's the statutory excuse that protects employers from any civil penalties that might otherwise be imposed if they are found to have employed a worker without the right to work in the UK and had either failed to carry the correct checks or had not done these properly. As employers can be fined up to £45,000 for each illegal worker for a first offence and up to £60,000 each for a repeat offence, it's essential that employers ensure they get things right when employing migrant workers. By contrast there's no such protection available for employers who "knowingly" employ such a worker, and they may be liable to an unlimited fine or even face up to 5 years' imprisonment.

How should employers carry out right to work checks?

For employers to benefit from the statutory excuse they must carry out a right to work check before they employ any worker. As a preliminary step they must check the employee's original documents, usually their passport but the Home Office provide a list of the documents that may be accepted. The employer must satisfy itself that the documents are genuine and that they belong to the employee concerned.

For British or Irish nationals that's usually sufficient. Employers may also wish to consider instructing an additional check on British and Irish nationals using an Identity Service Provider or IDSP; the Home Office recommends it, but it's not mandatory. For the nationals of all other countries the employer should confirm their immigration status through an online check with the Home Office. If the employee does have the right to work in the UK, the employer will receive a 'Positive Verification Notice'. Where the employee's right to work is 'time limited', the employer should diarise ahead to carry out a further check before that right expires. As part of the process the employer must take and keep copies of all the documents that they have seen in establishing the employee's right to work.

What happens if right to work checks are not carried out correctly?

A case involving a long-standing employee illustrates what can go wrong. The individual had worked with the same employer for over 20 years, initially on a family visa as the spouse of a British national, subsequently applying for indefinite leave to remain and then for British citizenship. On both occasions the relevant documents were provided to the employer. Some 15 years on, the employer unexpectedly contacted the employee requesting confirmation of their immigration status.

It transpired that the employer had not kept copies of the documents they had seen and had not updated the employee's file to show they had acquired British citizenship. Nor had the employer carried out follow up checks over the years to ensure the individual had retained the right to work.

In such circumstances, an employer would be well advised to update their procedures and provide further training for all staff involved in recruiting migrant workers to ensure they are fully aware of the employer's duties in carrying out right to work checks, record keeping, and using the sponsorship management system. Employers should also consider whether to notify the Home Office that there has been a breakdown in the system, even if the employee concerned ultimately did have the right to work. Much will depend on the extent of the problem and whether there are other employees affected whose immigration status was less straightforward.