Employers should be aware that they need to check whether a person has the right to work in the UK prior to employing them. This is a particularly important step given that the civil penalty for employing a person who does not have the right to work increased from £10,000 to £20,000 per employee from 6 April 2014.
If an employer discovers that they have illegal workers (or have known this since the beginning of their employment) they may believe that such workers will have no right to bring an employment tribunal claim because they are working under an illegal contract. The Employment Appeal Tribunal (EAT) has held in Wijesundera v Heathrow Logistics (2013) that this is not the case.
In this case, Ms W commenced work before obtaining a work permit and knew that she was working unlawfully. She was subsequently dismissed and brought a claim for sexual harassment – she claimed that she was seriously sexually assaulted. The EAT held that the claim for sexual harassment (save for the dismissal) could be considered despite Ms W’s unlawful work status.
A successful sexual harassment claim from an illegal worker is perhaps not the most obvious consequence of failing to check right to work documents. A discrimination issue which is more likely to arise is that of ethnic minorities suggesting they are being discriminated against if there is not a clear policy for checking right to work documents of all employees.
This could arise because, for example, an employer decides that it is unnecessary to check right to work documents of white workers because they clearly have the right to work. Even if the white workers do have the right to work (because, for example, they are British citizens), how does the employer decide which other workers’ documents should be checked? If the employer checks the passport of an individual of Asian ethnicity but who was born in Britain, the only difference between the requirement to provide right to work documents is the employee’s ethnicity. This could therefore amount to race discrimination.
It is worth providing a quick reminder of what to look for when checking right to work documents of all staff (this is just a brief list which by no means covers all obligations):
- Check that the documents have not expired (although UK passports may have expired).
- Check that photos in the documents look like the employee.
- Check that the date of birth on the document seems consistent with the employee’s appearance.
- Check that any visa covers the type of work they will be doing (including any limit on the number of hours they can work).
- If 2 documents have different names on, make sure there is a good reason and evidence for this (eg. marriage/divorce).
Ensure that you check the full list of documents required on the Home Office website and ensure that you keep a copy of any documents to evidence that you have carried the above process out for all staff. This will assist in avoiding both discrimination claims and fines for employing illegal workers.