illegal workers

Spotlight on… illegal workers aims to increase understanding of the risk posed by illegal construction workers, and identify what can be done to tackle the problem...

‘Spotlight on… illegal workers’ aims to increase understanding of the risk posed by illegal construction workers, and identify what can be done to tackle the problem…

In recent years the construction industry has become increasingly associated with efforts to reduce illegal working and exploitation of unlawful labour in the UK. The issue of illegal workers is a difficult one, but it is essential that everyone involved in the construction industry is aware of the risks posed by such workers, the potential exploitation of illegal workers and how we can remedy the problem.

The Home Office provided this summary of illegal working:

Illegal working is undertaken by individuals who are subject to UK immigration control, and have either entered the UK illegally, overstayed their permission to be here, or have permission to be in the UK but are subject to a condition preventing them from working.

Illegal working is an urgent issue that requires attention, and employers have a role to play in its prevention. Since 1997, employers have had a duty to prevent illegal working. They have done so by carrying out simple specified document checks on prospective employees to determine if they have a right to work in the UK. An employer can receive a financial penalty of up to £20,000 for each illegal worker employed. If prosecuted, they can now face up to five years in prison.

Using illegal labour is not a victimless crime. It can cause health and safety risks for everyone involved with a site, as well as affecting insurance if workers are not who they say they are or with the skills and knowledge they claim to have. Illegal working is linked to wider abuse and exploitation of workers, tax evasion and breach of other workplace regulations. At the worst end of the spectrum, it can involve modern slavery. It also negatively impacts on the wages of lawful workers and allows rogue employers to undercut legitimate businesses.

Construction is a particular target because it is an industry with a high demand for labour and where self employment is prevalent. There is currently a skills shortage, exacerbated by the recent recession and the often negative perception of the industry which puts people off pursuing a career in construction. In some cases, employing illegal workers may seem like a short-term fix for pressures on wages and filling the skills shortage, but the potential safety risks far outweigh any perceived benefit.

There are other remedies to construction’s challenges; the skills shortage could be addressed by improving the image of the industry, thereby attracting new talent. But the presence of illegal workers undermines efforts to improve the image of construction.

The Considerate Constructors Scheme flagged up the issue of illegal workers in its 2016 site Monitors’ Checklist under the ‘Value their Workforce’ section, asking in section 5.5: ‘How does the site assess and monitor the legitimacy and competency of the workforce?’ A prompt of ‘illegal workers’ was added to remind site managers of this important consideration. The issue has also been included in the supplementary ‘Site Specific Data’ section of the 2017 Monitors’ Checklist, which includes two additional questions for sites. They are:

Are there processes in place to ensure the subcontractors (and subsequent subcontractors) are conducting right to work checks?
Are physical spot checks conducted to ensure minimum standards of right to work checks are taking place within the supply chain?

Despite these changes, there is still a perception in the industry that not enough is being done. In order to gain a more up-to-date and direct representation of industry opinions on the issue of illegal workers, the Scheme gathered information through an industry survey in 2016. Over 550 participants responded, further evidence that the subject is a pressing issue. The following results were identified:

93% agreed illegal working could be better tackled in the construction industry

81% would say illegal working has been on the rise over the past 15 years

61% admitted they have not received – or rarely receive – information on illegal working

33% suspected a chance that illegal working had been present at a previous or current employer

30% believed that health and safety was placed at greatest risk as a result of illegal working (mostly due to the potential language barrier)

The Scheme followed the survey with this ‘Spotlight on…’ learning toolkit to raise awareness of illegal working.

Considerate Constructors Scheme Chief Executive Edward Hardy said:

“Ensuring the legitimacy of the workforce is one of the key challenges facing the construction industry today. The industry must work together to ensure that checks for workers’ legitimacy becomes firmly entrenched within all construction activity across the UK.

“By challenging sites to explore how they currently assess and monitor the legitimacy of their workforce, the Scheme believes that in the not-so-distant future, all registered sites, companies and suppliers will have robust procedures in place.

“The Scheme’s ‘Spotlight on…illegal workers’ provides the industry with the ‘go to’ resource to fully understand how it can effectively tackle illegal working, and ultimately help to improve construction’s image and reputation.”

Illegal working is a key priority for the Government, which recognises the harm caused by illegal labour. The Home Office is committed to ensuring employers meet their statutory duty to prevent illegal working, and conduct the correct right to work checks. This was reinforced by a series of construction site spot checks as part of the Operation Magnify campaign in October 2015.

This was a wakeup call to the industry, and the Scheme has since partnered with the Home Office to provide guidance to construction professionals on how to stamp out illegal working.

The Home Office and CCS working together to tackle illegal working:

The Government is committed to tackling the economic motivation behind illegal migration, a key driver for which is the ability to work illegally. Employers have an important role in preventing illegal working, and Home Office Immigration Enforcement is committed to engagement and support for construction industry partners who want to ensure compliance.

As such, Immigration Enforcement is working with the Considerate Constructors Scheme (CCS) to encourage greater compliance in tackling illegal working across the construction industry.

An important part of this successful collaboration has been the introduction of two new questions relating to Right to Work checks in the latest version of the CCS Monitors’ Checklist, launched in January 2017. The Checklist is the key means by which Scheme Monitors assess and score sites, companies and suppliers against the Scheme’s Code of Considerate Practice.

The Home Office has provided material to support this learning toolkit, highlighting key facts and legislation around the topic of illegal working.

Employers’ duties to prevent illegal working:

Employers have an important role to play in ensuring that their employees have the right to work in the UK. They do this by undertaking a simple 3 step right to work check.

What are the consequences of employing illegal workers?

Those who employ illegal workers, without conducting the required checks, will be subject to robust sanctions which include:

Civil penalty of up to £20,000 per illegal worker
Criminal prosecution with an unlimited fine and/or a custodial sentence of up to 5 years
A new power to close business premises and impose a court compliance order to prevent illegal working
Disqualification of directors for lengthy periods

Illegal workers also face having their wages seized, and possible prosecution.

Law and legislation

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Law and legislation

The topic of illegal working is comprehensively covered by the law, and Government guidance is available for following these regulations...

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External resources

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External resources

There are a number of resources available and initiatives underway to tackle illegal working...

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Examples of best practice

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Examples of best practice

The Scheme aims to improve the image of construction through sharing best practice with the industry. Below are a number of best practice examples that have been either witnessed by the Scheme’s Monitors on their site visits or submitted by members of the industry themselves...

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Case studies

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Case studies

The following case studies provide a useful collection of important examples gathered from various sources including contractors, clients and organisations...

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What can you do?

It is essential that when hiring a new employee you conduct the correct right to work checks. It is the responsibility of the direct employer – which is often a subcontractor – to undertake these checks, but it is in the interests of the entire supply chain to ensure the legitimacy of the workforce. This ‘Spotlight on…’ learning toolkit has already outlined the risks posed by illegal workers, the severe sanctions that can be brought against employers, as well as the consequences for site operations and the wider industry. The learning toolkit has also provided links to useful resources to help sites end illegal working. Below is a summary of what you can do to tackle illegal working, drawing on advice provided to the Considerate Constructors Scheme by the Home Office.

Right to Work checks

Full guidance on conducting right to work checks is available in the ‘External resources’ section.

The Home Office has provided this summary of a correct right to work check:

By conducting the correct right to work checks, as prescribed by the Home Office, an employer gets a defence – called a statutory excuse – against liability for a civil penalty.

The employer conducts a 3 step check:

Obtain original document(s) specified in the published guidance e.g. a passport or Biometric Residence Permit (BRP)

Check the validity of the documents against the holder; and

Retain copies of the documents and note the date on which the check was made.

The checks must be undertaken before their employee starts work, and if their immigration permission is time-limited they must check again when the permission comes to an end.

Who is responsible for conducting right to work checks?

Construction is particularly vulnerable to illegal working due to the fragmentation of the supply chain, leading to uncertainty over who is responsible for ensuring the legitimacy of the workforce.

On this matter, the Home Office says:

If you, as the employer, are contracting out specific jobs or services to individuals (contractors and sub-contractors), there is no requirement for you to conduct a right to work check because you are not the employer of those individuals. However, there are good reasons for you to establish that a right to work check has been conducted. It can cause disruption to your business operations and reputational damage when illegal workers are apprehended, as well as concerns about whether those workers have the knowledge and skills they said they have, and possible invalidation of your insurance.

It is therefore the responsibility of the direct employer to conduct the correct right to work checks. The liable party for any civil penalty is the individual/company/partnership etc. who is identified as employing the worker. The definition of employment under the law states that employment is a ‘contract of service (employment) or apprenticeship’. Therefore the party who engaged the illegal worker in a contract of employment would be liable for a penalty; you would not get multiple liable parties for an individual breach.

However, responsible contractors should send pre-contract questionnaires or declarations to their subcontractors to confirm that the subcontractor is ensuring the legitimacy of the workforce. The principal contractor will sometimes ask for copies of employees’ right to work documents (passports, BRPs etc.) and store them securely.

The fact that right to work checks are not the direct responsibility of principal contractors does not mean they are immune to the dangers of illegal working. The presence of illegal working on a principal contractor’s site could disrupt the project and severely damage the reputation of the company, curtailing their chances of securing new contracts, as well as having a detrimental effect on the image of the entire industry.

The Considerate Constructors Scheme expects site managers to be able to explain the process involved in checking the legitimacy of their workforce.

Acceptable right to work documents (excluding National Insurance or CSCS cards)

A full guide to acceptable right to work documents can be found in the ‘External resources’ section of this learning toolkit. Crucially, all construction professionals must be aware that National Insurance Numbers by themselves, and CSCS cards are not evidence of right to work.

Regarding National Insurance Numbers, the Home Office says:

A National Insurance number (NINo) will not by itself demonstrate a right to work. Not all NINo holders will be allowed to work in the UK and if they can work, they may be subject to conditions. You must check acceptable documents showing the NINo and name of the holder together with one of the combinations specified in the acceptable document lists.

On CSCS cards, the Home Office states:

A card issued under the Construction Skills Certification Scheme (CSCS) will not demonstrate a right to work. Nor does it confirm whether an immigration check has been undertaken on the individual.

CSCS cards issued since August 2016 carry the statement ‘Cards issued by CSCS do not confirm the holder’s right to work in the UK’.

Evidence that someone has had a criminal record check conducted by the Government’s Disclosure and Barring Service (DBS) is also not adequate evidence of right to work. DBS and right to work are different issues and should be checked separately.

One form of right to work documentation is a Biometric Residence Permit (BRP).

The Home Office outlines a BRP as follows:

The BRP is a secure immigration document. It provides a simple and secure means to conduct a right to work check. If you think someone should hold a BRP, ask to see it. The Home Office has issued more than 3 million BRPs since 2008. Since August 2015, this is the only document issued to all applicants who are granted leave of more than 6 months.

Having a NINo does not mean someone has the right to work in the UK. The Home Office and Department of Work and Pensions are aligning the issuing processes for a BRP and NINo so that non-European Economic Area nationals with permission to work in the UK will have their NINo printed on their BRP.

Conducting spot checks

On larger sites of longer duration, contractors should ask subcontractors to check that the right to work information they hold is still current. Many workers have time-limited eligibility to work in the UK and employers are required to carry out follow up checks at the end of the worker’s period of leave.

If the Home Office identifies a worker whose right to work has expired, employers face a civil penalty of up to £20,000 per illegal worker, or prosecution if they know or have reasonable cause to believe that the person is not eligible to work.

Employer’s statutory excuse

Conducting correct right to work checks and abiding by Home Office guidelines provides an employer with a legal defence (statutory excuse) against liability for a civil penalty.

The Home Office outlines when an employer does not have a statutory excuse:

You have not conducted the prescribed right to work checks before employment commenced;
You have accepted a document which clearly does not belong to the holder;
You have accepted a document which clearly shows the person does not have the right to work/stay in the UK and/or do the job in question, for example a student who has restrictions on the number of hours that they are allowed to work in term time and they are working in excess of these hours;
The endorsement demonstrating work entitlement or the BRP has expired;
You know you are employing someone who is not allowed to work in the UK, regardless of whether you have carried out checks;
Your statutory excuse has expired; or
You have not detected a ‘reasonably’ apparent counterfeit document(s).

Mitigation

If you tell the Home Office about an illegal worker before they find out and you further co-operate, the size of any penalty will be significantly reduced. If you pay it quickly, it will be further reduced by 30%. To notify the Home Office of illegal workers, you should contact the Home Office helpline on 0300 123 4699. You will receive a unique reference number which will be used in the event you are liable for a civil penalty.

What operatives can do

The majority of guidance in this is aimed at site management, but operatives must also remain vigilant against illegal working to end this harmful practice. We do not seek to create a climate of suspicion and policing on site, but only ask that all construction professionals be aware of the issue of illegal working.

Sites should encourage operatives to raise any concerns they have about illegal workers during the induction process. By implementing an open door policy and conducting toolbox talks on the issue, sites will create an environment where operatives feel comfortable discussing the issue of illegal workers.

Home Office contacts:

To notify the Home Office of illegal workers, you should contact the Home Office Sponsorship, Employer and Education helpline on 0300 123 4699 (Monday to Thursday, 9am to 5pm, Friday, 9am to 4:30pm). You will receive a unique reference number which will be used in the event you are liable for a civil penalty.

If you identify illegal workers or those who do not have a right to work in the UK during the recruitment process, tell the Home Office about them using the ‘report an immigration crime’ mechanism on gov.uk by clicking here.

To complement the free support already available, the Home Office has developed an enhanced immigration training service charged at full cost recovery and not for profit. Further enquiries can be made at IECheckingAdviceService@homeoffice.gsi.gov.uk.

As well as the information provided above, it is also advised to visit the ‘External resources’ section, which offers guidance and information from other organisations and companies that cover the full spectrum of the topic.

The Scheme will continue to update this page as new examples and case studies of how the industry is tackling illegal workers are identified. If you would like to share how your company is addressing this issue, please contact the Scheme by emailing enquiries@ccsbestpractice.org.uk.

Date published: March 28 2017
Last updated: February 13 2018

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Published 17 October 2022 | No comments
Written by CCS Best Practice Hub Administrator

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This contractor have been working collaboratively with Lambeth College and London South Bank University (LSBU), to pilot a programme which aims to upskill diverse members of their workforce who are foreign and often struggle with the English language, providing them with the opportunity to learn and feel more comfortable engaging with other people on site. This voluntary course will also…

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Published 18 November 2019 | No comments
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Written by CCS Best Practice Hub Administrator

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Written by CCS Best Practice Hub Administrator

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Published 3 October 2017 | No comments
Written by CCS Best Practice Hub Administrator

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Written by Shauna Young

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Published 1 June 2017 | No comments
Written by CCS Best Practice Hub Administrator

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Illegal working is one of the biggest challenges facing the construction industry. There is a great deal of confusion surrounding the process of checking a prospective employee’s right to work, but it is essential that sites are aware that the correct processes are in place. Even if the main contractor is not legally responsible for ensuring right to work, as…

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Written by CCS Best Practice Hub Administrator

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It is crucial that each and every site ensures their workforce is legitimate, as illegal workers pose a grave risk to the construction industry as a whole. Not only can the presence of illegal workers pose a health and safety risk on site, but employing workers who are not eligible to work in the UK carries hefty penalties. The example…

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Published 29 November 2016 | No comments
Written by CCS Best Practice Hub Administrator

Categories Modern slavery training Right to work checks

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Illegal working often results in abusive and exploitative behaviour, the mistreatment of illegal migrant workers, tax evasion and poor housing conditions. It can also undercut legitimate businesses and have an adverse impact on the employment of people who are lawfully in the UK. Under section 15 of the Immigration, Asylum and Nationality Act 2006 (the 2006 Act), an employer may…

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Published 12 May 2016 | No comments
Written by CCS Best Practice Hub Administrator

Categories Modern slavery training Right to work checks

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CategoriesModern slavery training Right to work checks

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Ethical sourcing is a term that is becoming more and more prominent as governments and organisations strive to create a more global, equal and fair working environment. The focus is to ensure products are being sourced from environments where workers are treated well, paid well and working in respectable conditions. In the construction industry, we must be aware of any…

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Monitoring the Legitimacy of the Workforce

Published 28 April 2016 | No comments
Written by CCS Best Practice Hub Administrator

Categories Modern slavery training Right to work checks Workforce vetting

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CategoriesModern slavery training Right to work checks Workforce vetting

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In order to maintain high levels of safety and legal regulation, the industry must monitor the legitimacy of its workforce. The following procedures and checks should be in place to monitor the workforce: There should be a process in place to check the legitimacy of the workforce either before arrival on site or upon arrival, with spot checks as necessary,…

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Published 11 April 2016 | No comments
Written by Jack Endean

Categories Disadvantaged and minority groups support Modern slavery training Right to work checks Workforce vetting

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CategoriesDisadvantaged and minority groups support Modern slavery training Right to work checks Workforce vetting

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Modern slavery encompasses slavery, human trafficking, forced or compulsory labour and domestic servitude. In March 2015, the Modern Slavery Act was introduced by the UK government to give protection to victims and hand-down harsh penalties to offenders, who now face up to life imprisonment if they are convicted of modern slavery offences. Individuals working in the country illegally due to…

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Using Spot Checks to Prevent Illegal Working

Published 14 January 2016 | No comments
Written by Jack Endean

Categories Modern slavery training Right to work checks

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CategoriesModern slavery training Right to work checks

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Individuals working in the country illegally due to their immigration status will often be victims of abuse and exploitations or caught in a situation now defined as modern slavery. Spot checks can be made to make sure as far as possible that everyone working on your site is doing so legally. The Home Office’s recommended Right to Work checks, is…

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Modern Slavery in Construction

Published 12 January 2016 | No comments
Written by Jack Endean

Categories Modern slavery training Right to work checks

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CategoriesModern slavery training Right to work checks

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Modern slavery encompasses slavery, human trafficking, forced or compulsory labour and domestic servitude. In March 2015, the Modern Slavery Act was introduced by the UK government to give protection to victims and hand down harsh penalties to offenders, who now face up to life imprisonment if they are convicted of modern slavery offences. The National Crime Agency’s latest strategic assessment listed…

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Workers Legally Allowed to Work in UK

Published 2 December 2015 | No comments
Written by CCS Best Practice Hub Administrator

Categories Modern slavery training Right to work checks Workforce vetting

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CategoriesModern slavery training Right to work checks Workforce vetting

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Employers are expected to carry out checks to ensure that people on their sites are legally able to work in the UK. Employers should be implementing the following process: Obtain original versions of the various documents allowed/ required, which would often include a passport; Check all of the documents validity in front of the person concerned; Make and retain copies of the…

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‘Spotlight on… illegal workers’ aims to increase understanding of the risk posed by illegal construction workers, and identify what can be done to tackle the problem…

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