The importance of robust right to work checks!

Where an employee has a right to work in the UK as a spouse of an European Economic Area national resident in the UK, can an employer reasonably require them to produce evidence of their right to work in the form of positive ECS (Employer Checking Services) checks from the Home Office?

No, the Employment Appeal Tribunal (EAT) held the organisation was wrong to completely rely on a negative right to work check by the Employment Checking Service (ECS) when deciding to withhold the right to work and pay. In this case:

• The Claimant was a Nigerian National who had previously married an EEA National living in the UK and provided a valid Residence Card with an expiry date of 20 January 2015.
• The Claimant had an automatic right to work in the UK through his marriage and this had not been changed by the expiry of his Residence Card.
• Mistakenly, ignoring the fact the Claimant has now had an automatic right to work, the Employer requested that the Claimant apply for a new Residence Card and, as they had been concerned about the prospect of incurring a fine, had also undertaken a series of ECS requests which failed to provide a ‘positive verification notice’ (PVN). They then withheld work and pay.
• The Claimant raised a grievance at the time the Employer had requested he apply for a new Residence Card, noting his automatic right to work due to his immigration status. The situation subsequently escalated to Employment Tribunal (ET). 
• The Claimant eventually presented a new Residence Card by 15 October 2015, but once the ET had dismissed his claims, the Employer went on to end his employment with immediate effect on 17 November 2015.
• The Claimant then raised separate claims to a new ET for unlawful deduction of wages and both direct and indirect discrimination but lost and chose to appeal.
• The Employment Appeal Tribunal (EAT) allowed the appeal in relation to unlawful deduction of wages and indirect discrimination but not direct discrimination and found the original ET had failed to take account of Home Office guidance (and case law) which said that an ECS check was not enough to determine eligibility to work.

Learning Points

When determining if employees have the right to work it the UK, companies should take care not to solely rely on ECS checks. As we can see in this case, the outcome may not always be correct.  

Consideration should also be given to an employee’s change of circumstances, in this case, the Claimant had actually started divorce proceedings and would have eventually lost his right to work in the UK - this demonstrates the importance of undertaking regular checks of right to work documentation.

Aspire Comment

The law in relation to right to work is complex and the civil penalties for errors are high - up to £20,000 per worker! The best way for an employer to protect themselves is to ensure they have a robust procedure in place for compliance. 

If you have any questions about how to carry out a right to work check, implementing a right to work policy or carrying out a compliance audit,  get in touch on 0121 445 6178 or email us on enquiries@aspirepartnership.co.uk.