Right to work risks

Following news that a fish and chip shop owner was fined £40,000 for unknowingly employing an illegal worker, Claire Scanlan, an experienced employment law solicitor at Buckles Solicitors, explains how businesses can ensure all staff have the right to work

Employing workers who don’t have the right to work in the UK has come under the spotlight recently. Tells us a little bit about this. 

A recent story highlighted the consequences of employing workers who didn’t have the right to work in the UK, when a fish and chip shop owner was fined £40,000 for overlooking aspects of current employment compliance.

The fine was described as a “brutal reminder of an unfair system”, but it also reveals how failing to carry out proper and complete checks can land a business in serious legal and financial trouble.

There is now a greater likelihood of workers without the right to work in the UK being caught. The Home Office has significantly ramped up enforcement actions and reports indicate a substantial increase in immigration enforcement visits and arrests in the past year.

The government has also announced a “nationwide blitz” on illegal working, with a particular focus on the gig economy. Employers need to ensure they have done everything right, even if the worker is being considered for part-time, seasonal or casual work.

How serious is it for a business to get this wrong?

In a word – very. Employers who hire someone who doesn’t have the legal right to work in the UK can face a fine for each illegal worker. And that’s just the financial side of it. In the most serious cases, criminal sanctions apply too, including prison sentences.

Beyond the penalties, there’s also reputational damage, disruption to business operations, and the risk of being banned from hiring workers from abroad if you hold a sponsor licence. For small businesses, particularly those reliant on fast-moving hiring or seasonal staff, the impact can be ruinous.

How typical is this problem in the takeaway and fast food industry?

Unfortunately, it’s more common than many realise. Sectors like fast food, takeaway, and hospitality tend to have high staff turnover and demand for flexible or part-time workers. That creates pressure to hire quickly, sometimes too quickly, without checking everything thoroughly – which is when problems can arise.

Whilst it is likely that some employers knowingly break the rules, many simply do not understand what the “right to work” check really involves, especially when dealing with migrant workers or unfamiliar documentation. But ignorance isn’t a defence and even accidental mistakes can lead to severe consequences.

Who is responsible for ensuring right-to-work checks are undertaken properly?

Employers are legally responsible for confirming that all employees, including part-time, seasonal and casual staff, have the legal right to work in the UK. This check must happen before employment begins.

It is common and often necessary for these tasks to be delegated to managers, especially in larger or multi-site businesses. But delegation does not shift legal liability. It therefore requires business owners to take active steps to ensure that those they delegate these tasks to are properly trained, supported and monitored to protect the business from potentially catastrophic penalties.

What can happen if checks are not carried out or not done right?

As can be seen from the story linked at the start of this article, the consequences can be serious from civil penalties of up to £60,000 per illegal worker, to criminal charges, including up to five years in prison, unlimited fines, or both. There is also the potential closure of your business and the suspension or loss of your sponsor licence under the Points-Based System [if applicable].

How can I protect my business?

A: If you carry out a compliant ‘Right to Work’ check, you may be able to claim a statutory excuse, which is a legal defence against civil penalties. But that defence only applies if the check follows one of the government-approved methods.

What are the government-approved methods for checking Right to Work?

There are four:

1.Manual check – For most British or Irish passport holders and people without a digital immigration status:

– Obtain and check the original documents from List A or B

– Check them in the person’s presence [or via video if you hold the documents]

– Copy and securely store them, with the date of the check noted

– Keep records for the length of employment plus two years

2. Online check – For individuals with digital status [e.g. via a Biometric Residence Permit or eVisa]:

– Access the Home Office online portal and use a share code and date of birth

– Confirm the individual matches the photo [in person or via video]

– Save the profile page and check follow-up dates

3. Using a Digital Verification Service – For British and Irish citizens with valid passports:

– Use a DVS Provider [DVS] and keep the report securely

– Ensure that the DVS meets the requirements and that you satisfy yourself that the photograph and biographic details are consistent with the individual (either in person or by video call

4. Employer Checking Service [ECS] – For applicants with pending applications or appeals:

– Use the ECS and keep the Positive Verification Notice, valid for six months

Can applicants be asked about their immigration status?

You must be careful not to discriminate. All applicants should be treated equally and you must not assume someone’s status based on appearance, accent or nationality. Ask every candidate at the same stage of recruitment and make any job offer conditional on them providing proof of their right to work.

What about people who are still waiting for a visa decision?

If someone says they’ve applied for a visa or extension, or are appealing a decision, you can’t check their status in the normal way. Instead, you must use the Employer Checking Service (ECS). This involves submitting their details to the Home Office, which will tell you whether they currently have the right to work. If they do, you’ll receive a Positive Verification Notice, which protects you legally for six months. If they don’t, you cannot employ them – simple as that.

What about children or young people?

It is legal to hire young people or students, but with strict conditions, particularly when recruiting school-age children. Most local authorities still require employers to apply for a child employment permit. You’ll also need parental consent, confirmation from the school, with a risk assessment that reflects the child’s age and inexperience. Children under 14 usually can’t work, but for those who can be hired:

• Work must be light and not harmful to their health, education or development
• There are strict limits on hours, especially during term time
• National changes coming via the Children’s Wellbeing and Schools Bill will harmonise the rules

Where do employers most often go wrong?

Mistakes often arise when employers start by assuming that long-standing UK residents automatically have the right to work. Typically, employers don’t re-check temporary permissions before they expire and fail to keep evidence of any checks they have made. Many employers also skip the necessary checks for casual or part-time staff, often mistakenly assuming the checks apply only to permanent, full-time roles.

What can you do if you’re unsure or worried about a past hire?

The fines and potential criminal charges for getting it wrong can ruin a business. But a straightforward, well-documented process can keep you compliant and safe. If in doubt, legal advice can help you navigate tricky cases and protect your business.

It’s always better to get advice early rather than wait until enforcement officers are at your door. Whether you’re dealing with a new hire or a historic concern, it’s best to engage professional legal help as soon as possible to help you navigate it confidently and compliantly.