Suspended For Not Providing Proof of Right to Work

[flyingflette]

Hi All,

I suspect this has been a much debated topic since the government amended the list of acceptable documents, and I suspect my situation is not at all unique.
I have been in continuous employment at the same job for fourteen and a half years and have undergone the TUPE process on seven occasions; the most recent being on December 1st 2016. Not being aware of the amendments, I presented my passport which expired in 2004 with my ILR, along with my current passport as proof of my right to work. During this TUPE consultation, both documents were scrutinised in my presence and copies of all relevant pages were taken. On January 21st I received a letter from the company stating that I had not provided enough evidence to prove my right to work, and I was eventually told that I would need to apply for a NTL biometric resident card.
Not receiving any such correspondence from the home office relative to my (work) status, I debated the legitimacy of a company dictating what is in fact a legal document issued by the government.
Not having 308 pounds to pay for this stated more secure form of identification and other nuances, the application was sent Friday January 29th and the tracker number given to management so the necessary verification checks could be made through the home office. I was suspended without pay the following Monday morning.

1. Understanding that the company want to ensure that they follow guidelines to gain a statutory excuse, and considering the facts, would they face a civil penalty if I was still on duty?
2. Have they not already lost the right to a statutory excuse by not flagging this issue until three weeks after I had started with them?
3. Is suspension without pay warranted in this situation?

This has caused a significant amount of stress and with the loss of earnings mounting, I also face a financial crisis so any guidance will be greatly appreciated.

[vinny]

Under TUPE, the new employer takes over employees’ employment contracts, including:

all the previous terms and conditions of employment
any failures of the previous employer to observe employees’ rights (so employees could make a claim for discrimination against the new employer, even if it took place before the transfer)
holiday entitlement
period of continuous employment - an employee’s start date is the same as before the transfer, so continuous employment isn’t broken
any collective agreements previously made

It’s a breach of contract if the new employer doesn’t meet the terms of the employment contract.

It seems to me that if your continuous employment isn't broken and your start date is the same as before the transfer, then your ILR must have been checked at some point in time when it was in a valid passport. If they had performed proper checks of your ILR in the past, then I believe there is no requirement to recheck.

[vinny]

See also Is a transferee able to rely on assurances from the transferor that it carried out the necessary checks on the transferred employees' immigration status, or must it carry out its own checks? and

Transfer of undertakings

Transfer of Undertakings (Protection of Employment) (TUPE) regulations provide that right to work checks carried out by the transferor (the seller) are deemed to have been carried out by the transferee (the buyer). As such, the buyer will obtain the benefit of any statutory excuse acquired by the seller. However, if the seller did not conduct the checks correctly, the buyer would be liable for a penalty if an employee is later found to be working illegally. Also, a check by the buyer would be necessary to determine when any follow-up check should be carried out. For these reasons, employers who acquire staff through TUPE regulations should undertake a right to work check on all new TUPE members of staff.

We recognise that there may be practical problems in undertaking these checks before the employment commences for workers acquired as a result of a TUPE transfer and for this reason a period of grace has been provided during which you should undertake the check. Since 16 May 2014, this period is 60 days from the date of the transfer of the business to correctly carry out their first statutory document checks in respect of these new TUPE employees. There is no such grace period for any subsequent follow-up checks.

[flyingflette]

Thank you for the reply Vinny.

I started this job three weeks after landing in the UK in 2002, the ILR has been in my old passport since 2003 and the passport expired in 2004. I recognise the need for companies to negate/minimise the possibility of hiring illegal workers, but my question is; if a company is confident that an individual is indeed a legal migrant, would they face a civil penalty at this juncture?
The tracker number was given to the company just over a week ago but what they seem to want is the reference number from the home office so they can in essence get a positive notification notice for something that is already irrefutable?? By definition, what does indefinite leave to remain constitute??

Many thanks again.

[flyingflette]

Copied from Home Office FAQ's.

Q42 What do I need to do if I acquire staff as the result of a TUPE transfer?

A. The Transfer of Undertakings (Protection of Employment) (TUPE) transfer regulations 2006 (as amended) provide that checks carried out by the transferor (the seller) are deemed to have been carried out by the transferee (the buyer). As such, the buyer will obtain the benefit of any statutory excuse obtained by the seller. So, in theory, the transferee does not have to conduct checks.


The previous company would have scrutinised/copied my documents before the amendment was made and as such gained a statutory excuse against any possible civil liability. That said, any acquisition of a biometric style of proof of right to work should have been my choice, for when my current employment ended due to resignation or termination and I seek new beginnings.

Am I off base here??

[vinny]

I don't think that they should have suspended you. It's their choice to recheck your right to work. But it's not compulsory, especially if the right to work checks were previously properly done with respect to List A documents. So, if they require further checks, then I think they should also reimburse you for any inconvenience of getting current documents.

[flyingflette]

Thank you Vinny. Appreciated.

[flyingflette]

Update

After much reading and comprehension of the employers guide to right to work checks, the introduction presented what I thought to be enough evidence to have my suspension repealed.

''The 2006 Act replaced section 8 of the Asylum and Immigration Act 1996 (the 1996 Act) in respect of employment which commenced on or after 29 February 2008''.

Considering my commencement date is 2002, it stands to reason that the provisions set out in the 2006 Act do not apply to my circumstances?! Would my current employer not benefit from a continuous statutory excuse? The above quote along with all relative information gleaned from the guide were presented to the company but they refuse to repeal the suspension.
They have now stated, ''as a TUPE employee, your continued employee status with regards to right to work does not apply''.
How can this be accurate?

[flyingflette]

The company used the ECS to confirm my status and I was able to return to work two weeks later but after presenting my points of challenge to the company a number of times, I have had to resort to seeking external support as they have maintained their position through silence or presenting information that can not be evidenced in any HO guidance. This includes being told that my continuous service does not apply to right to work checks and that they are not obligated to obtain any statutory excuse obtained by my previous employer, therefore they conduct their own right to work checks.

- Whch commencement date is used to perform right to work checks on TUPE employees? The date of transfer or the contractual start date?
- If it is a hard and fast rule that ILR's are not acceptable as proof of right to work, why does the guidance issued in July 2016 provide a link to the 2013 guidance stating,'' Where the employment commenced on or after 29 February 2008 and a statutory
excuse was established for the duration of that person’s employment before 16 May
2014, the document checks set out in the ‘Full guide for employers on preventing illegal
working in the UK’ published in October 2013 continue to apply’’. This guidance clearly suggests otherwise so who does this apply to if not individuals who have been in continuous employment?

I have remained objective throughout but before the next step of my challenge commmences, I seek definitive answers to the above. If only for peace of mind that I have not over-read the guidance.

Many thanks in advance.