Who is Responsible for Ensuring Workers’ Legality?

As a matter of best practice, recruitment agencies generally screen candidates at an early stage and carry out a full right-to-work check before recommending a candidate to an employer.

However, it is important to bear in mind that, regardless of the industry and the role, the legal obligation to prevent the employment of illegal workers falls on the employer. Therefore, it is prudent for employers to make sure that someone has the right to work before they are hired and a crucial question is whether the recruitment agency or the end-user company is the employer.

If a candidate is employed and contracted to the recruitment agency throughout their contract, who then supply them to work at a third party, the recruiter is the employing entity and it is their legal responsibility to make the relevant checks. On the other hand, if a recruiter is merely introducing a candidate to an employer, the responsibility to conduct checks rests on the employer, not the recruiter. However, many recruitment agencies still run checks on all candidates as a matter of best practice.

Employers can help themselves by carrying out checks at the start of employment and periodically thereafter. It is also best-practice to include a warranty in the contract of employment from the employee that they are entitled to work in the UK. This puts at least some of the consequences of illegal working onto the employee, as they will be in breach of contract if it turns out that they are not entitled to work in the UK.

Ensuring the right to work is partly about safeguarding the reputation of your organisation and ensuring efficient recruitment, and partly about avoiding unnecessary sanctions. The Home Office reserve the right to name and shame businesses employing illegal workers and a single illegal worker can also result in a £20,000 fine. In very serious cases, where an employer knowingly employs someone illegally, it can lead to a prison sentence of up to 5 years and unlimited fines, amongst other punishments.

For more information visit Myerson’s Employment section.

Download full article pdf: Right to work guidance

Patrick Byrne
Employment Law
Myerson Solicitors LLP

0161 941 4000

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