Withholding wages

[kirinm]

A family member has been living in this country for 50 years. He has a letter from the Home Office confirming he has indefinite leave to remain.

He has been doing some work via an agency and the company responsible for payroll is refusing to pay him as they are questioning whether he has a right to work here. They apparently don't think the letter is evidence enough.

As a lawyer I'm tempted to kick off and threaten to sue them for breach of contract but there may well be legislation which puts the company at risk if they were to pay illegal immigrants.

Does anyone know if they are allowed to do this? They are apparently going to try and establish whether he is allowed to work via the Home Office but this could take time and he really needs to be paid.

I'm not an immigration or employment lawyer so don't know the rules around this sort of thing.

I am not a lawyer at all but I think that agencies etc have to verify a persons right to work before taking them on rather than before paying them

Shouldnt they have done this before he did the work?

Doesn't he have ILR stamped on his passport? But my understanding is as the pp said - they have to verify his entitlement to work BEFORE he works, not before he gets paid. By offering him work they have accepted that he has the right to work here.

Thanks. Yes, it makes much more sense to check beforehand rather than after.

His passport is currently in Swansea. Something to do with him reaching retirement age.

I'd have thought the letter from the Home Office was sufficient although a stamp in the passport would show it is at least up to date.

I've asked them to explain the legal basis on which they can withhold payment so will see what they say but it could be weeks before he sees any money.

assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/999119/FINAL_Employers_Guide.pdf

Thanks for that @mantlemoose

I would ring acas and get advice as they tend to be up on all this kind of stuff but when I had a non payment from an agency (for different reasons though) I found out that you have to bring up a formal grievance within I think 60 or 90 days of the expected payment so don't let the agency drag it on past that time limit. I sent an email to the hr manager stating official grievance, that I had spoken to acas and the next steps if not paid and it was sorted the next week after 8 weeks off being given the run around. Even if they can't pay due to not enough proof of right to work it might be worth putting in an official grievance just so if the passport gets held up and he can't prove his status within the timetable he has at least taken action before then.

I have just been doing employment checks for a large employer I have been told I need to see either the passport with the Stamp (passport must be in date) and keep a copy or employee has to share code from settled status that enables me to download pdf proving eligibility to work. PDF has photo in it.
No other document is acceptable for proof of right to work.

@Lonecatwithkitten

I have just been doing employment checks for a large employer I have been told I need to see either the passport with the Stamp (passport must be in date) and keep a copy or employee has to share code from settled status that enables me to download pdf proving eligibility to work. PDF has photo in it. No other document is acceptable for proof of right to work.

Presumably this was before they were employed rather than before you pay them?

The payroll company won't explain the basis on which they are entitled to withhold money.

Does anyone know how long it takes to check the position with the Home Office?

He can go on gov.uk and generate a code for his employer to check instantly. That's as official as it gets. Surprised they don't know about this

@catfunk surprised who doesn't know about this?

I'll have a look at the code - unfortunately he is over 70 and is not great with dealing with things online.

I've just spoken to ACAS and they've said the right to remain stuff is irrelevant. He has done the work and they should pay him. As a PP said, we need to send in a Letter of Grievance and then the next step would be to sue.

I am an immigrant myself and had an ILR letter, rather than a stamp, for 12years, as my passport wasn't valid (expired) at the time of IRL issued. I have never had any problems with employers or wages. 2years ago I applied and got UK citizenship on the back of this, rather shabby looking, letter with no problems whatsoever. There are plenty of people, who had IRL in a letter, worked and retired on it, never applying for a UK passport.
My letter said 'right of employment' or something similar. Yours should say it too.
The agency is taking a p*. I would threaten them with legal action if it was me.
For the future, your family member could contact the Home Office and send his passport away for them to stamp it- it was an advice in my letter, too.

@BoredNotPanda

I am an immigrant myself and had an ILR letter, rather than a stamp, for 12years, as my passport wasn't valid (expired) at the time of IRL issued. I have never had any problems with employers or wages. 2years ago I applied and got UK citizenship on the back of this, rather shabby looking, letter with no problems whatsoever. There are plenty of people, who had IRL in a letter, worked and retired on it, never applying for a UK passport. My letter said 'right of employment' or something similar. Yours should say it too. The agency is taking a p*. I would threaten them with legal action if it was me. For the future, your family member could contact the Home Office and send his passport away for them to stamp it- it was an advice in my letter, too.

Yes thanks, he had the stamp in his last passport which was renewed in 2018 but hasn't sent the new one to the Home Office. I think he kind of felt he probably didn't need to now.

I used the ILR letter, which had the wrong name (they put mrs dh’s name, but I didn’t change my name on marriage) many times as official proof.

It is a legal document, I don’t see how they can reject it.

@CatherinedeBourgh

I agree! They just aren't saying anything other than they want something more up to date.

The IRL letter only gets issued once, do they also want a more up to date birth certificate?

@catfunk

He can go on gov.uk and generate a code for his employer to check instantly. That's as official as it gets. Surprised they don't know about this

Surprised the HR department don't know about it (not your friend). It's the only way to prove right to work in the UK without the required documents. Hope he gets sorted op!

www.gov.uk/government/publications/right-to-work-checks-employers-guide

www.gov.uk/prove-right-to-work

www.citizensadvice.org.uk/work/problems-at-work/dealing-with-a-problem-at-work/ Be careful with time limits.

He's being paid today 🎉

Before I employed I had to see a valid passport with the indefinite leave to remain visa inside plus accompanying paperwork. No excuses, no passport no job. Can be fined so much money for employing an illegal immigrant. In addition we needed ni number written on an official document (letter from hmrc, benefits).

@gogohm

Before I employed I had to see a valid passport with the indefinite leave to remain visa inside plus accompanying paperwork. No excuses, no passport no job. Can be fined so much money for employing an illegal immigrant. In addition we needed ni number written on an official document (letter from hmrc, benefits).

Well yes but they didn't carry that out before. And he supplied everything he has anyway. That wasn't enough for them. Although now we've mentioned ACAS it apparently is.

Good result OP