How to comply with the law to prevent illegal working

29 November 2007

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An essential part of the recruitment process is to ensure that any applicant is entitled to work in the UK. It is a criminal offence for you to employ someone aged 16 or over who has no right to work in the United Kingdom or no right to do the work you are offering. Read this hot tip, taken from the FPB's newly-updated Employment Guide, to ensure that you stay on the right side of the law.

The law gives employers a statutory defence against conviction for employing an illegal worker.

The defence is obtained by checking and copying certain original documents, which you should ask your employee to produce.

You should follow steps 1 to 3 below for EVERY potential employee, irrespective of his or her nationality, origin or racial background. By doing this, you will ensure that your recruitment practices comply with the law and establish the statutory defence, and you will not be convicted of employing a person illegally.

Steps 1 to 3 must be carried out before the person begins working for you. If you take on an employee before you carry out these steps, you will not have a statutory defence and you are committing a criminal offence.

Step 1

You should ask all of your potential employees to provide:

One of the original documents included in List 1 set out in the guidance notes from the Home Office on preventing illegal working.

Two of the original documents in the combinations given in List 2 set out in the guidance notes from the Home Office on preventing illegal working.

You do not need to ask your potential employee to produce documents from both List 1 and List 2.

Step 2

You are required to ensure that the potential employee is the rightful holder of any of the documents that are presented in Step 1 above. This can be done when checking the documents presented, by taking the following actions:

Check any photographs, where available, to ensure that you are satisfied that they are consistent with the appearance of your potential employee.
Check the date of birth listed so you are satisfied that it is consistent with the appearance of your potential employee.
Check that the documents have not expired.
Check any UK Government stamps or endorsements to see if your potential employee is able to do the type of work you are offering.
If your potential employee gives you two documents from List 2 which show different surnames, then you should ask him or her for a further document to explain the reason for this. This could be a marriage certificate, decree absolute, deed poll, adoption certificate or statutory declaration.
If you are in any doubt, do not employ the applicant and, if necessary, contact the appropriate Government department.

Step 3

Finally, you should make a photocopy or a scan of all documents shown to you, in particular:

The front cover and all the pages which give the potential employee's personal details, photograph and signature.
Any page containing a UK Government stamp or endorsement which allows the potential employee to do the type of work that you are offering.

You should keep a record of every document that has been copied. This ensures that the Border & Immigration Agency will be able to examine your right to the statutory defence if it is detected that anyone is working for you illegally.

The law is spelt out in more detail in documents which can be obtained from the Home Office. These are available to download from the appropriate websites, which are www.bia.homeoffice.gov.uk or www.workingintheuk.gov.uk. You can also call the Border & Immigration Agency Employer's Helpline on 0845 010 6677.

More information
This article was taken from the latest edition of the FPB's Employment Guide, updated for 2008. Click here to order your copy.

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How to comply with the law to prevent illegal working

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