What can you do?
It is essential that when hiring a new employee you conduct the correct right to work checks. It is the responsibility of the direct employer – which is often a subcontractor – to undertake these checks, but it is in the interests of the entire supply chain to ensure the legitimacy of the workforce. This ‘Spotlight on…’ campaign has already outlined the risks posed by illegal workers, the severe sanctions that can be brought against employers, as well as the consequences for site operations and the wider industry. The campaign has also provided links to useful resources to help sites end illegal working. Below is a summary of what you can do to tackle illegal working, drawing on advice provided to the Considerate Constructors Scheme by the Home Office.
Right to Work checks
Full guidance on conducting right to work checks is available in the ‘External resources’ section of this campaign.
The Home Office has provided this summary of a correct right to work check:
By conducting the correct right to work checks, as prescribed by the Home Office, an employer gets a defence – called a statutory excuse – against liability for a civil penalty.
The employer conducts a 3 step check:
- Obtain original document(s) specified in the published guidance e.g. a passport or Biometric Residence Permit (BRP)
- Check the validity of the documents against the holder; and
- Retain copies of the documents and note the date on which the check was made.
The checks must be undertaken before their employee starts work, and if their immigration permission is time-limited they must check again when the permission comes to an end.
Who is responsible for conducting right to work checks?
Construction is particularly vulnerable to illegal working due to the fragmentation of the supply chain, leading to uncertainty over who is responsible for ensuring the legitimacy of the workforce.
On this matter, the Home Office says:
If you, as the employer, are contracting out specific jobs or services to individuals (contractors and sub-contractors), there is no requirement for you to conduct a right to work check because you are not the employer of those individuals. However, there are good reasons for you to establish that a right to work check has been conducted. It can cause disruption to your business operations and reputational damage when illegal workers are apprehended, as well as concerns about whether those workers have the knowledge and skills they said they have, and possible invalidation of your insurance.
It is therefore the responsibility of the direct employer to conduct the correct right to work checks. The liable party for any civil penalty is the individual/company/partnership etc. who is identified as employing the worker. The definition of employment under the law states that employment is a ‘contract of service (employment) or apprenticeship’. Therefore the party who engaged the illegal worker in a contract of employment would be liable for a penalty; you would not get multiple liable parties for an individual breach.
However, responsible contractors should send pre-contract questionnaires or declarations to their subcontractors to confirm that the subcontractor is ensuring the legitimacy of the workforce. The principal contractor will sometimes ask for copies of employees’ right to work documents (passports, BRPs etc.) and store them securely.
The fact that right to work checks are not the direct responsibility of principal contractors does not mean they are immune to the dangers of illegal working. The presence of illegal working on a principal contractor’s site could disrupt the project and severely damage the reputation of the company, curtailing their chances of securing new contracts, as well as having a detrimental effect on the image of the entire industry.
The Considerate Constructors Scheme expects site managers to be able to explain the process involved in checking the legitimacy of their workforce.
Acceptable right to work documents (excluding National Insurance or CSCS cards)
A full guide to acceptable right to work documents can be found in the ‘External resources’ section of this campaign. Crucially, all construction professionals must be aware that National Insurance Numbers by themselves, and CSCS cards are not evidence of right to work.
Regarding National Insurance Numbers, the Home Office says:
A National Insurance number (NINo) will not by itself demonstrate a right to work. Not all NINo holders will be allowed to work in the UK and if they can work, they may be subject to conditions. You must check acceptable documents showing the NINo and name of the holder together with one of the combinations specified in the acceptable document lists.
On CSCS cards, the Home Office states:
A card issued under the Construction Skills Certification Scheme (CSCS) will not demonstrate a right to work. Nor does it confirm whether an immigration check has been undertaken on the individual.
CSCS cards issued since August 2016 carry the statement ‘Cards issued by CSCS do not confirm the holder’s right to work in the UK’.
One form of right to work documentation is a Biometric Residence Permit (BRP).
The Home Office outlines a BRP as follows:
The BRP is a secure immigration document. It provides a simple and secure means to conduct a right to work check. If you think someone should hold a BRP, ask to see it. The Home Office has issued more than 3 million BRPs since 2008. Since August 2015, this is the only document issued to all applicants who are granted leave of more than 6 months.
Having a NINo does not mean someone has the right to work in the UK. The Home Office and Department of Work and Pensions are aligning the issuing processes for a BRP and NINo so that non-European Economic Area nationals with permission to work in the UK will have their NINo printed on their BRP.
Conducting spot checks
On larger sites of longer duration, contractors should ask subcontractors to check that the right to work information they hold is still current. Many workers have time-limited eligibility to work in the UK and employers are required to carry out follow up checks at the end of the worker’s period of leave.
If the Home Office identifies a worker whose right to work has expired, employers face a civil penalty of up to £20,000 per illegal worker, or prosecution if they know or have reasonable cause to believe that the person is not eligible to work.
Employer’s statutory excuse
Conducting correct right to work checks and abiding by Home Office guidelines provides an employer with a legal defence (statutory excuse) against liability for a civil penalty.
The Home Office outlines when an employer does not
have a statutory excuse:
- You have not conducted the prescribed right to work checks before employment commenced;
- You have accepted a document which clearly does not belong to the holder;
- You have accepted a document which clearly shows the person does not have the right to work/stay in the UK and/or do the job in question, for example a student who has restrictions on the number of hours that they are allowed to work in term time and they are working in excess of these hours;
- The endorsement demonstrating work entitlement or the BRP has expired;
- You know you are employing someone who is not allowed to work in the UK, regardless of whether you have carried out checks;
- Your statutory excuse has expired; or
- You have not detected a ‘reasonably’ apparent counterfeit document(s).
If you tell the Home Office about an illegal worker before they find out and you further co-operate, the size of any penalty will be significantly reduced. If you pay it quickly, it will be further reduced by 30%. To notify the Home Office of illegal workers, you should contact the Home Office helpline on 0300 123 4699. You will receive a unique reference number which will be used in the event you are liable for a civil penalty.
What operatives can do
The majority of guidance in this campaign is aimed at site management, but operatives must also remain vigilant against illegal working to end this harmful practice. We do not seek to create a climate of suspicion and policing on site, but only ask that all construction professionals be aware of the issue of illegal working.
Sites should encourage operatives to raise any concerns they have about illegal workers during the induction process. By implementing an open door policy and conducting toolbox talks on the issue, sites will create an environment where operatives feel comfortable discussing the issue of illegal workers.
Home Office contacts:
To notify the Home Office of illegal workers, you should contact the Home Office Sponsorship, Employer and Education helpline on 0300 123 4699 (Monday to Thursday, 9am to 5pm, Friday, 9am to 4:30pm). You will receive a unique reference number which will be used in the event you are liable for a civil penalty.
If you identify illegal workers or those who do not have a right to work in the UK during the recruitment process, tell the Home Office about them using the ‘report an immigration crime’ mechanism on gov.uk by clicking here.
To complement the free support already available, the Home Office has developed an enhanced immigration training service charged at full cost recovery and not for profit. Further enquiries can be made at IECheckingAdviceService@homeoffice.gsi.gov.uk.
As well as the information provided above, it is also advised to visit the ‘External resources’ section, which offers guidance and information from other organisations and companies that cover the full spectrum of the topic.
The Scheme will continue to update this page as new examples and case studies of how the industry is tackling illegal workers are identified. If you would like to share how your company is addressing this issue, please contact the Scheme by emailing email@example.com.