My Employee Lost Their Right to Work: What To Do

Employees lose their right to work in the UK due to the limitation of their immigration status. Employees under immigration control have time-limited leave to work in the UK. They lose their right to work when their leave becomes invalid due to expiry date passage, cancellation, revocation, or curtailment.

Page Contents

• How Does My Employee Lose Their Right to Work?
• How Does It Affect Me?
• How Do I Verify My Employee’s Right To Work?
• Employer Checking Service
• What If My Employee Cannot Provide Proof of Leave Application?
• Should I Dismiss My Employee Immediately?
• How to Avoid Unfair Dismissal
• Why Should I Provide an Opportunity for Appeal?
• How Can Total Law Help?

As an employer, you must ensure that your immigrant workers have the right to work and are not working illegally. If any of your employees are found to be working illegally, and you have not done a follow-up check or contacted the Home Office to verify the employee’s right to work, you may be liable to the following sanctions:

• You may be issued a civil penalty of £20,000 (or less). Your penalty fee depends on the level of your breach.
• You may be liable to a criminal conviction resulting in a prison sentence (maximum of five years) and an unlimited fine.
• You may get a temporary closure notice of your business and a compliance order.
• You may be disqualified as a director.
• You may lose your sponsor licence.
• Your earnings from illegal working may be seized.
• Your licence for alcohol and late-night refreshment, taxi and private hire vehicle may be reviewed and revoked.

If your employee is unable to provide proof of outstanding appeal, administrative review, or application, you must verify their status with the Home Office. Ensure to inform your employee that you want to carry out a verification request and check on their status before taking such action.

Obtain information on when they submitted or posted the application, appeal, or review. Send a verification request to the ECS 14 days from the date of application or appeal. The 14 days is required because the registration period of applications, appeals, and reviews with the Home Office takes up to 14 days.

Obtain information on when they submitted or posted the application, appeal, or review. Send a verification request to the ECS 14 days from the date of application or appeal. The 14 days is required because the registration period of applications, appeals, and reviews with the Home Office takes up to 14 days.

The Employer Checking Service is a mechanism to verify from the Home Office if workers with outstanding appeals or applications have the right to work. In situations where employees cannot provide documents proving their application or right to stay, you can verify with the Home Office using ECS.

It is normal to want to take a dismissal action to avoid getting sanctioned. However, you need to take precautionary steps to avoid unfair dismissal. You must follow the fair process for employee dismissal.

If your employee has been under your employment for more than two years continuously, they have the right to appeal. They may appeal for unfair dismissal and discrimination if they find the termination of their employment contract unfair, regardless of not having a valid right to work.

The fact that the ECS has issued you an NVN indicating your employee’s loss of the right to work does not negate the place of investigation and dialogue with the employee.

You need to conduct a fair investigation through a one-on-one meeting with the employee to discuss the situation. You will be providing a fair hearing for the employee to give reasons for the situation and rectify the problem if they have already applied for further leave and are facing challenges.

The employee must get a notification for the meeting on time to enable proper preparation before the meeting. The notification should provide information on the purpose of the meeting, likely consequences of action, venue, and time. You may also attach evidence of your claim, such as a copy of the NVN.

The notification should enable the employee to gather enough evidence and information to prove their situation. If the employee needs time to provide additional evidence based on the outcome of the meeting, you may give the employee 1 to 2 days to prove that they still have the right to work.

If the employee can prove their in-time application for further leave before the expiry date of their visa, you must suspend the dismissal process and refer to the ECS for further investigation.

If the ECS feedback is an NVN or the employee cannot provide acceptable proof of right to work, you may proceed with the dismissal. Ensure to give reasonable facts for dismissal and provide the employee with an opportunity to appeal the dismissal.

Employees have a right to appeal. If your employee wishes to appeal against your decision, you must provide the process to carry it out. They would notify you in writing of the reasons for the appeal—failure to let the employee appeal may result in sanction if taken to the employment tribunal.

The appeal must be conducted impartially and without delay by an official that is neutral to the case. You and the employee must agree on the venue and time for the appeal.

Aside from respecting the employee’s right to appeal, an appeal may help you demonstrate that the termination of the contract was done through the appropriate process. It would be helpful, especially if the worker had a valid right to work at the time of investigation but could not provide proof. Dismissing an employee with a right to work is a punishable offence.

You must contact the ECS for verification if the worker provides evidence of in-time further leave application. If you get a PVN, you must revoke the termination of the employee’s contract.