Evidencing the right to work: Lessons from the 'Windrush' scandal

The difficulties of applying an inflexible set of rules to individuals with differing backgrounds are also shared by employers. Some individuals have lost their jobs as employers could not confirm whether they had a right to work in a format that is acceptable to the Home Office. 

To conduct a valid check, employers must obtain original documents from List A or List B in the Legal Right to Work Check guidance (Aug 2017). This preserves their statutory excuse against claims of illegal working. Employers will need to check if those documents are genuine and whether the individual has any conditions that would prevent him/her undertaking the relevant role. If the employer is satisfied with the check, a clear copy of the documents needs to made, along with a record of the date, name and signature of the individual who conducted the check.

In many cases, the legal right to work check is straightforward. However, there are limited circumstances where it can be difficult to ascertain and confirm whether an individual has the right to work in the UK. 

A good example of this uncertainty is where the individual has posted his/her application for further leave to remain, and there are no documents to check for compliance. As the Home Office can take months to make decisions on applications submitted by regular post, employers face the risk of not knowing whether the individual has a continued right to work even after the individual's visa has expired.

Whilst employers can use an online system (the Employer Checking Service or "ECS") to verify the status for someone who has a pending application with the Home Office, it is not perfect as it often takes a few weeks for the system to be updated. This delay usually results in a negative verification outcome if the ECS check is performed too early. It also deprives employers of their statutory excuse against claims of hiring an illegal worker if the individual did not file a valid application before his/her leave expired. 

Nayak v Royal Mail Ltd (EAT) is a case which reminds us of the difficult choices faced by employers where there is no clear evidence to demonstrate that an individual can continue to work in the UK, even if such right is held in reality. In Nayak, the Employment Appeal Tribunal held that the dismissal was fair where the employer genuinely and reasonably believed that one of their employees no longer had valid legal right to work after conducting an extensive fact-finding exercise with little cooperation from the claimant. 

Some employers are already aware that the hiring of non-EEA national family members who are in the process of applying for a residence card poses a significant issue as the applicants would not be able to evidence their right to work until the Home Office issues them with a Certificate of Application, which can often take 2-3 months. 

Whilst the EEA regulations allow non-EEA national family members to work in the UK (provided that the main EEA applicant is in the UK exercising Treaty rights by being a worker, self-employed, self-sufficient or a student), the legal right to work guidance does not give any statutory defence to employers until they have checked their original Certificate of Application. 

Meticulous analysis of the facts against applicable rules, robust documentation retention practices, and periodic follow-up will be required when employing non-EEA national family members who have yet to receive their Certificate of Application and are awaiting decision on their residence card application. 

Employers should also pay close attention to employees who have submitted an application by post to extend their leave. Employers should vigorously check if the application made was in a proper format, enclosing the correct application fee, as an "invalid" application will deprive the applicant of an automatic extension of their leave by law whilst the application is pending with the Home Office, making the employee an illegal worker from day one after his/her visa expires.

Since a failure to conduct a valid legal right to work check can lead to a civil penalty of up to £20,000 for each illegal worker, an unlimited fine and/or imprisonment of up to 5 years, some employers have chosen to play it safe and have avoided taking any risks where the skilled worker they wish to hire has difficulties evidencing their right to work. 

Brexit is expected to bring more confusion regarding the type of documents employers are required check for EU nationals in the UK. A new "registration scheme" for EU nationals is expected to be rolled out towards the end of this year. However, it is likely that the same theme will reoccur and it is possible that EU nationals could be shunned by employers for a period of time if they cannot evidence their right to work in the UK. 

The political agreement reached with the EU is expected to allow EU nationals who are residing in the UK before 31 Dec 2020 to continue living and working in the UK provided that they register under a new scheme. 

Whilst the new registration scheme is stated to be streamlined and easy for applicants to follow, we expect situations where the Home Office may need further information. For those EU nationals who have not obtained documentation to confirm their residence status under the current rules, it would be prudent to keep their P60s, pay slips, bank statements and documents showing their residency in the UK.    

Employers should have a clear strategy to identify all affected employees and implement a plan to commence registration for their EU national employees in a methodical manner before the new registration scheme closes on 30 June 2021.