When an Employee Loses their Right to Work

If you become aware that an employee has lost their right to work, your next steps will be critical to ensure you do not breach your obligations under UK immigration and employment laws.

In this guide, we explore the necessary steps for employers and the various implications of an employee losing their right to work.

 

Duty to Prevent Illegal Working

 

It is worth reminding that all UK employers operate under a duty to prevent illegal working. Failure to meet your duties under the Immigration, Asylum and Nationality Act 2006 can leave your organisation liable to a civil penalty if you are found to have employed someone who does not have the right to undertake the work in question. You may become liable for a civil penalty of up to £45,000 per initial breach, increasing to £60,000 per breach for repeat offences, and potentially for criminal prosecution punishable for up to 5 years imprisonment, if you are found to have had reasonable cause to believe that an employee no longer has the right to work, yet you continued to employ them.

Conducting right to work checks that comply with the latest Home Office guidance will help reduce the risk of hiring personnel unlawfully, and potentially mitigate or defend any alleged breach of compliance by way of statutory excuse. This means carrying out online, digital or manual checks, or using the Home Office’s Employer Checking Service, as appropriate. It also means taking appropriate action should you become aware that an employee has lost their right to work.

 

Changes in Right to Work Status of Employees

 

When performing a Right to Work check, you will be looking to determine the individual’s eligibility to work in the UK, on the basis of their immigration status. If the individual has status as a settled person in the UK – for example, they have Indefinite Leave to Remain or EU settled status under the EU Settlement Scheme – you will only need to carry out a pre-employment right to work check, and will not need to conduct any further checks during their employment.

If the individual has limited leave to work in the UK – meaning their permission to work is temporary, such as having a work visa – you will have to conduct follow-up checks to confirm this permission has been extended and that the individual continues to hold a valid Right to Work.

There are many reasons why a person’s Right to Work status may have changed during the course of their employment, for example:

 

a. their permission (e.g. visa) may have expired;

b. their permission may have been revoked due to a breach of their visa conditions;

c. their employer may have lost their sponsor licence;

d. following a TUPE transfer, the new employer does not hold a sponsor licence.

 

So it is entirely plausible that an employee who had previously held the correct permissions to work at the point of recruitment and onboarding may subsequently lose their right to work. As an employer, you must have systems and procedures in place to become aware of this development – i.e. through follow up right to work checks – and then take necessary, lawful action to deal with the issue.

So what do you do if you discover an employee no longer has the Right to Work in the UK?

 

Employee Loses Right to Work: Next Steps

 

While you risk a civil penalty and criminal prosecution if you continue to employ that individual when they are no longer permitted to undertake the work in question, you have to proceed with caution.

Often the initial reaction may be to terminate the employee’s contract, to avoid any potential accusation of non-compliance, but this could expose you to other risks, such as a claim for race discrimination or unfair dismissal, where the employee has sufficient service with the organisation.

Also, individuals suspended from work or put on ‘garden leave’ are generally considered to continue to be employees and as such, may continue to put you at risk of a civil penalty if they are not permitted to work.

It is also important to clarify the reason for the change in the employee’s status, as this will influence your next steps.

A revoked visa for example will require an almost immediate response, and may relate to a conduct issue.

An expiring visa may have a longer lead time to address, during which time you could support the employee in applying for alternative immigration routes under which you can retain the employee. In this instance, the employee should demonstrate they have submitted an application to extend further leave to remain with the Home Office prior to the expiry date and that this is in active consideration. You can verify this using the Home Office Employer Checking Service.

In some cases, the individual may assert they have the Right to Work but are unable to produce the relevant acceptable documents as evidence. Here, the potentially fair reason for dismissal of illegality could not be relied on to dismiss the employee fairly.

There may be a grace period available for ‘overstayers’, allowing the individual time to address their situation with the Home Office, and providing you more time to investigate and explore your options.

For completeness – if you as an employer have lost your sponsor licence, your employees’ respective certificates of sponsorship also become cancelled, and their visas limited to 60 days, or however long remains on the visas where less than 60 days. Employees will have to leave the job and the UK unless they make a new visa application within that time.

Likewise, if an individual is subject to a TUPE, and the new employer does not renew their licence within 28 days, employees’ visas will be limited to 60 days or however long remains on the visa where less than 60 days. Employees will have to leave the job and the UK unless a new visa application within that time.

Employers facing concerns about an individual’s Right to Work should first focus on gathering facts by investigating the individual’s immigration status, where possible before their leave to remain is due to expire.

This requires good record keeping for all document checks, and in particular where an individual has temporary Right to Work, a clear record should be made of their visa expiry date to allow for a follow up check to be made in advance. Schedule a follow up with the employee 2-3 months before their visa is due to expire for confirmation of whether they intend to apply for further leave to remain, and to request they inform you when their application has been submitted to the Home Office.

If the employee confirms that they have an application pending with the Home Office, their lawful status will remain unchanged until the outcome of the application. The Employer Checking Service can be used in relation to pending applications. Usually, employers can rely on a 28 day grace period following expiry of an individual’s Right to Work before becoming criminally liable for illegal working.

In the event the employee fails to make a new application, it would be reasonable to meet with the individual to discuss the situation and the impact of loss of leave to remain on their continued lawful employment. At this stage, you should also make the individual aware that their contract could potentially be terminated as result of their loss of status.

If the individual is unable to provide proof of their continued Right to Work on the date their visa expires, the employer can start a procedure to consider dismissal.

Before you take action, consider all of the facts of the case and all of the options available to you. It is also advisable to take professional guidance to ensure you proceed in a fair and lawful manner.

 

Dismissal for loss of Right to Work

 

Employers should maintain their Right to Work and immigration policies and ensure that they provide clarity on responsibilities, and are up to date, effective and correctly applied. In the case of a dispute, it usually goes in an employer’s favour where its systems and process are deemed fair, consistent and reasonable.

As with all HR matters, before taking action you should develop and follow a fair process based on thorough investigation and factual evidence, which must be implemented consistently.

For example, if you are terminating an employee’s contract, ensure that the dismissal falls within one of the potentially fair reasons for dismissal.

Before an employer can terminate the individual’s contract, they must first take steps to ensure dismissal is the appropriate response and that the process of dismissal is fair.

At first, a meeting should be held with the employee to discuss their current status and their action to date to ensure continued lawful status.

If following an online check, the employer determines the individual no longer has the Right to Work, they may notify of their dismissal, usually without notice where there is a clause within the employment contract requiring proof of Right to Work, as this would give grounds for breach of contract. If there is no such contractual clause, the employer may opt to give PILON.

It will be important at this stage to offer the right to appeal, for example, in the event the individual is subsequently able to prove they continue to hold lawful status.

 

Changes in Right to Work rules

 

Right to Work legislation and guidance is a complex area and is subject to frequent change. Employers must stay abreast of developments and take action to adapt policies, processes and training to remain compliant. Ignorance is no defence, so it will be important to ensure as an employer you are both aware of changes and take action accordingly to ensure you remain compliant.

 

Need Assistance?

 

The most effective strategy for employers to manage the risk of right to work compliance is through robust procedures implemented consistently across your organisation to prevent illegal working arising in the first place.

A systematic approach to document checking should cover all new employees, with further scheduled checks every 12 months for those with time-limited permission.

Also ensure that proper record-keeping and monitoring processes are in place, to identify when immigration permissions will expire.

A formal right to work process will help minimise the risk of illegal employment, and should enable you to rely on the ‘statutory excuse’ as a defence in the event of unintentionally employing someone unlawfully, even where the status changes during the course of employment.

Read more about meeting your right to work compliance duties and managing your List B employees.

 

FAQs

 
What does it mean to lose the right to work in the UK?

Losing the right to work means an individual no longer has valid immigration status or work authorisation under UK law.

 

What are the common reasons for losing the right to work?

Reasons include visa expiration, breaching visa conditions, or a change in immigration status (e.g., rejection of an extension or appeal).

 

What should an employer do if they suspect an employee has lost the right to work?

Employers must conduct an immediate follow-up right-to-work check and take steps to verify the individual’s status. They should also seek legal advice if necessary.

 

Can an employee work while their visa application or appeal is pending?

Depending on the circumstances, employees can usually continue to work if they submitted their visa application or appeal before their previous visa expired and have proof of application. The Home Office’s Employer Checking Service can be used to verify an individual’s right to work

 

What is a statutory excuse, and how does it protect employers?

A statutory excuse protects employers from liability if they unknowingly employ someone without the right to work, provided they conducted compliant right-to-work checks.

 

How can employers verify an employee’s right to work?

Employers must check original documents or use the Home Office’s online right-to-work checking service to confirm immigration status.

 

What happens if an employer continues to employ someone without the right to work?

Employers may face civil penalties of up to £20,000 per illegal worker or criminal prosecution for knowingly employing someone without valid status.

 

Can an employee regain their right to work after losing it?

An employee may regain the right to work by resolving their immigration status, such as renewing a visa or securing a new visa type.

 

Are employers required to report employees who lose the right to work?

Employers must terminate employment if the individual cannot prove their right to work and may need to inform the Home Office in some cases.

 

What rights do employees have if they lose the right to work?

Employees may appeal a visa decision, apply for a new visa, or seek advice on their options. They are also protected against unfair dismissal if due process is not followed.

 

Glossary

 

Term	Definition
Right to Work	Legal permission for an individual to work in the UK, granted through immigration status or citizenship.
Visa Expiration	The end of the validity period of a visa, after which an individual may lose the right to work.
Immigration Status	The legal condition under which an individual is allowed to remain in the UK, determining their rights to work or study.
Statutory Excuse	A legal defence for employers against penalties for unknowingly employing someone without the right to work, provided proper checks were conducted.
Right-to-Work Check	The process employers must follow to verify that an employee has legal permission to work in the UK.
Home Office	The UK government department responsible for immigration, security, and law enforcement, including right-to-work regulations.
Online Right-to-Work Checking Service	A digital service provided by the Home Office for verifying an employee’s right to work in the UK.
Civil Penalty	A fine of up to £20,000 per illegal worker imposed on employers who fail to comply with right-to-work regulations.
Criminal Prosecution	Legal action taken against employers who knowingly employ individuals without the right to work, potentially resulting in imprisonment.
Visa Conditions	Specific rules associated with a visa, such as work restrictions, hours, or employer sponsorship requirements.
Pending Application	A visa or immigration application that has been submitted but not yet decided, during which certain rights may continue temporarily.
Unfair Dismissal	Termination of employment without a fair reason or proper process, which may lead to legal claims against the employer.
Employee Appeal	The legal right of an employee to challenge a visa decision or dismissal due to losing the right to work.
Employer Obligations	Responsibilities of employers to comply with immigration laws, including verifying and monitoring employees’ right to work.
Termination of Employment	The process of ending an employee’s contract, which must comply with employment and immigration law if the right to work is lost.

 

Additional Resources

 

UK Government: Right to Work Checks
https://www.gov.uk/check-job-applicant-right-to-work
Official guidance for employers on how to perform right-to-work checks and comply with UK immigration laws.

 

Home Office: Employer Penalties and Offences
https://www.gov.uk/penalties-for-employing-illegal-workers
Details on penalties, fines, and legal consequences for employing workers without the right to work.

 

UK Government: Online Right-to-Work Check
https://www.gov.uk/view-right-to-work
The official online service to verify an employee’s right to work in the UK.

 

ACAS: Employer Responsibilities
https://www.acas.org.uk/
Advice on how to handle employee rights and employer obligations, including cases involving immigration issues.

 

UK Government: Work Visa Guidance
https://www.gov.uk/browse/visas-immigration/work-visas
Comprehensive guidance on work visas, eligibility, and application procedures.