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Right to work checks and civil penalties

Videos

Right to work checks – three top tips

Flora Mewies and Isabelle Cernis give their three top tips on how to carry out a right to work check.

How to carry out a right to work check online

Immigration expert Natalie Payne talks you through how to carry out a right to work check online in this short video.

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How to carry out a paper-based right to work check

Immigration expert Natalie Payne talks you through how to carry out a paper-based right to work check in this short video.

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Right to work checks post Brexit

Flora Mewies talks you through right to work checks post Brexit.

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Right to work checks for students

Flora Mewies talks you through right to work checks for students.

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Overview

What is a Right to Work Check?

A right to work check is a process followed by employers to check that their prospective employees have the right to work in the UK.

Who should carry out a Right to Work Check?

All employers should carry out right to work checks. It doesn’t matter how many employees you have, what industry you are in or what type of organisation you are.

Who should I carry out a Right to Work Check for?

Right to work checks should be carried out on all prospective employees. This includes British, EU, EEA and non-EEA nationals.

Assumptions should not be made about an individual’s right to work based on their colour, nationality, ethnic or national origins, accent or length of time they have been resident in the UK. To do so could amount to discrimination for which compensation is uncapped in the Employment Tribunal.

Can I outsource the Right to Work Check?

In order to establish the statutory excuse and avoid a civil penalty if you are found to be employing an illegal worker, the right to work check must be carried out by the employer.

This means that you cannot rely on a third party performing the check for you, such as a recruitment agency.

Do I have to carry out a Right to Work Check for contractors and the self-employed?

You are not required to check the right to work of workers who are genuinely self-employed. This includes contractors who work under a contract for service.
You may however choose to check the right to work of contractors and those who are self-employed to avoid any negative PR which would come from them being illegal workers.

Should I check the Right to Work of apprentices?

Yes, those engaged under a contract of apprenticeship should have their right to work checked.

When should I carry out a Right to Work Check?

Right to work checks should be carried out before an individual’s employment begins.

If you are checking an employee’s right to work on their first day of employment, the check must be undertaken before their contractual start time and evidence of this should be retained.

It is good practice to make job offers conditional on the individual evidencing their right to work in the UK.

RTW checks for EU nationals post-Brexit

What’s the difference between settled and pre-settled status?

Settled status is granted to those who have lived in the UK continuously for 5 years and if granted, allows you to continue living and working in UK indefinitely.

Pre-settled status is granted to those who haven’t yet lived in the UK continuously for 5 years and so they are given the right to remain in the UK for a further 5 years, rather than permanently.  Individuals will then be able to convert this into settled status once they have reached 5 years in the UK in total.

Once an individual has pre-settled status or settled status, does it have an expiry date?

Pre-settled status is granted for a limited period of time which allows the holder to reach 5 years in the UK and then to apply to convert this into settled status.  If the individual is unable to convert their pre-settled status into settled status, for example because they have spent more than 6 months in any 12 month period outside the UK they cannot renew their pre-settled status and so it will lapse on the expiry date.

In addition, pre-settled status is lost if they spend more than 2 consecutive years outside of the UK and settled status is lost by spending 5 consecutive years outside of the UK.

It can also be lost if they no longer meet the eligibility criteria, for example in relation to criminal offences.

Can we ask employees to provide evidence of their settled or pre-settled status, or evidence that they have applied under the EU Settlement Scheme?

Yes, as part of the right to work check.  Prospective employees will only be able to evidence their settled or pre-settled status through the online right to work check as they are not issued with physical documents proving their status.

How do we know if an EU national has the right to work?

For the purpose of right to work checks EU nationals fall into three categories:

  1. Those whose employment with you commenced on or before 31 December 2020
  2. Those whose employment with you commenced between 1 January and 30 June 2021
  3. Those whose employment with you commences on or after 1 July 2021

The information that you need and the check that you do will be slightly different for each of these three categories (see below).

What right to work check should be done for EU nationals employed by us on or before 31 December 2020?

If a compliant right to work check is done before the employment begins, the employer receives the benefit of the statutory excuse, protecting the business from a civil penalty if the employee turns out not to have the right to work.

So long as a compliant right to work check has been carried out, there is no requirement to undertake further right to work checks for this category of EU national.

What right to work check should be done for EU nationals recruited between 1 January and 30 June 2021?

EU nationals who began residing in the UK by 31 December 2021 were eligible for settled or pre-settled status under the EU Settlement Scheme (EUSS).  EU nationals who began residing in the UK on or after 1 January 2021 cannot apply under the EUSS and require a visa to work in the UK.

The period 1 January to 30 June 2021 was a post-Brexit grace period and so regardless of when the EU national began residing in the UK, employers were permitted to carry out the standard right to work check.  This meant that the individual could provide a document from List A or List B, e.g. their EU passport, evidence of pre-settled or settled status.

The Home Office guidance specifically states that employers aren’t required to find out when an EU national started residing in the UK.

A compliant right to work check gives the employer the statutory excuse, providing protection from a civil penalty if the employee subsequently does not have the right to work.

However if the employer knows or has reasonable cause to believe that the EU national arrived in the UK on or after 1 January 2021, it will be aware that the employee requires a visa and, amongst other things, the statutory excuse becomes null and void.

What right to work check should be done for EU nationals whose employment commenced on or after 1 July 2021?

UKVI has published an updated “Right to work checks: an employer’s guide” which can be accessed here.

You can also access Gov.uk’s “Checking a job applicant’s right to work” page here.

Since 1 July 2021, EEA citizens and their family members are required to have immigration status in the UK. They can no longer rely on an EEA passport or national identity card, which only confirms their nationality, to prove their right to work. They are required to provide evidence of lawful immigration status in the UK, in the same way as other foreign nationals.

Since 1 July 2021, the majority of EEA citizens prove their right to work using the Home Office online services (see below).

There may be situations after 30 June 2021 in which you identify an EU citizen in your workforce who has not applied to the EUSS by the deadline and does not hold any other form of leave in the UK.

Where an EEA citizen has reasonable grounds for missing the EUSS application deadline, they will be given a further opportunity to apply but, in short, you should advise them that they must make an application within 28 days.

This is a complex area wholly dependent upon the individual’s circumstances and we encourage you to contact one of our immigration experts if you have specific queries.

Do employers need to carry out retrospective checks on EU employees?

The Home Office does not require employers to find out whether or not employees who began working for them by 30 June 2021 have applied under the EUSS.

So long as a compliant right to work check has been done, and provided there was no time limit on the right to work, you will be able to keep employing the EU national after 1 July 2021 without doing another check or seeing evidence of their status under the EUSS.

This is because you will receive the statutory excuse as a result of your compliant right to work check.  As a result, if an employee hasn’t applied under the EUSS and has become an overstayer – such that they don’t have the right to work – you as the employer can rely on the statutory excuse as a defence to employing them illegally.

The exception to this is that if you know or have reasonable cause to believe that they don’t have the right to work after 30th June 2021 e.g. because they haven’t applied or their application was rejected – this will render your statutory excuse null and void and expose the business to the civil penalty of £20,000 per illegal worker as well as a criminal offence.

What happens if an employer finds out that an employee didn’t apply under the Scheme or had their application refused?

If the employer knows or has reasonable cause to believe that the EU national has not made a valid application for status under the EUSS before 30 June 2021 and either does not have reasonable grounds for missing the EUSS application deadline or has not secured right to work under an alternative immigration route, then if they continue to employ the individual they risk jeopardising their statutory excuse.

We recommend that specific advice be sought from our immigration experts in these circumstances.

How do we check EU nationals’ right to work without discriminating?

The Home Office does not require employers to find out if employees whose employment commenced on or before 30 June 2021 have applied under the EUSS.  Employers are also not required to find out when EU employees arrived in the UK.

So long as the business is satisfied that compliant right to work checks have been done and could be evidenced if needed, this check can be relied upon (as discussed above) and no further check is required.

The statutory excuse can be relied on even if the business is employing an EU national who first relocated to the UK on or after 1 January 2021 and who requires a visa to work but does not have one.

If there is any concern that compliant right to work checks have not been carried out, it is sensible to carry out a new check now, in order to identify any issues regarding an employee’s right to work status.

Carrying out new right to work checks for all employees or, for all employees who you do not have a compliant right to work check for is the safest way to avoid allegations of discrimination.

It is crucial to note that the statutory excuse is null and void if the employer has knowledge or has reasonable cause to believe that the EU national doesn’t have the right to work. In this situation, the employer would be exposed to a civil penalty and/or a criminal offence.

For this reason, our experience suggests that employers have been asking for evidence at the recruitment stage where employment was to commence on 1 January and 30 June 2021 inclusive to see when prospective employees first relocated to the UK so that they know whether or not they need a visa, rather than potentially finding out later down the line.  Employers are also carrying out audits of all right to work checks of all employees.

What should employers do if there are EU employees whose right to work hasn’t been checked in the past?

If you have checked an employee’s right to work before their employment began, you don’t need to repeat your check.

If however you have never checked an employee’s right to work, it is recommended that you do this now.

If right to work checks aren’t carried out before employment begins and the employee is found not to have the right to work, the employer is at risk of being fined up to £20,000 per illegal worker.  This risk remains even if the right to work check is carried out after the employee begins work however it is better to carry out a late check than none at all as this will identify any concerns and give you the opportunity to resolve this or take action before the Home Office does.

Do I need to check the right to work of Irish nationals?

Yes, everyone’s right to work needs to be checked.  Irish citizens were not required to apply under the EU Settlement Scheme and can live and work in the UK using their Irish passport.

What if employees didn’t apply under the EU Settlement Scheme by 30 June 2021?

If an employee failed to apply by 30 June 2021 they will have lost their right to live and work in the UK which would mean that they are an illegal worker.

There are some grounds on which discretion can be exercised to allow late applications but this would require specific advice and guidance.

Evidencing RTW checks

What documents can I accept for a Right to Work Check?

UK Visas and Immigration has a specified list of documents which can be accepted to evidence an individual’s right to work. See the List A and B below.

Documents which are not described in List A or List B will not be sufficient to establish the statutory excuse.

List A
Documents in List A provide a continuous statutory excuse (i.e. no need to re-check right to work in the future)
1A passport (current or expired) showing the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK.
2A passport or national identity card (current or expired) showing that the holder is a national of the Republic of Ireland.
3A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has been granted unlimited leave to enter and remain under Appendix EU to the Jersey Immigration Rules, Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules.
4A current passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK.
5A current Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the named person is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer.
6A birth or adoption certificate issued in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer.
7A birth or adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer.
8A certificate of registration or naturalisation as a British citizen, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer.
List B – Group 1
Documents in List B Group 1 provide a time-limited statutory excuse. This lasts until the expiry date of leave and so a subsequent check must be carried out before the expiry date.
1A current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question.
2A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has been granted limited leave to enter or remain under Appendix EU to the Jersey Immigration Rules, Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules.
3A current immigration status document containing a photograph issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK, and is allowed to do the type of work in question, together with an official document giving the person's permanent National Insurance number and their name issued by a government agency or a previous employer.
List B - Group 2
Documents in List B Group 2 provide a time-limited statutory excuse which lasts for 6 months. A subsequent check must be carried out before the 6 months expires.
1A document issued by the Home Office showing that the holder has made an application for leave to enter or remain under Appendix EU to the immigration rules on or before 30 June 2021 together with a Positive Verification Notice from the Home Office Employer Checking Service.
2A Certificate of Application (digital or non-digital) issued by the Home Office showing that the holder has made an application for leave to enter or remain under Appendix EU to the immigration rules (known as the EU Settlement Scheme), on or after 1 July 2021, together with a Positive Verification Notice from the Home Office Employer Checking Service.
3A document issued by the Bailiwick of Jersey or the Bailiwick of Guernsey, showing that the holder has made an application for leave to enter or remain under Appendix EU to the Jersey Immigration Rules or Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 on or before 30 June 2021 together with a Positive Verification Notice from the Home Office Employer Checking Service.
4An Application Registration Card issued by the Home Office stating that the holder is permitted to take the employment in question, together with a Positive Verification Notice from the Home Office Employer Checking Service.
5A Positive Verification Notice issued by the Home Office Employer Checking Service to the employer or prospective employer, which indicates that the named person may stay in the UK and is permitted to do the work in question.

 

Can I carry out a manual right to work check using a candidate’s Biometric Residence Permit?

No.  With effect from 6 April 2022, right to work checks on BRP’s, BRC’s and Frontier Worker Permits have to be done using the online checking service.  If a right to work check is done manually, this will not give the employer the statutory excuse.

Can a driving licence be used to evidence Right to Work?

No. It is a common misconception that a British citizen can provide their driving licence to evidence their right to work. This is not acceptable proof of right to work.

Can an expired passport be used to evidence Right to Work?

In some circumstances yes. For example, if the passport is being used to show that the individual is a British or European citizen, the passport does not need to be current. Please see List A above.

However some circumstances require the passport to be current. For example, if the passport contains evidence that the individual has obtained Indefinite Leave to Remain or if the passport includes an endorsement confirming the right to work. Please see List A and List B above.

How do I carry out a Right to Work Check?

The right to work check can be carried out online or using paper documents or through an IDSP.

To carry out the check online:

The individual must share their online right to work record with you by providing a “share code”. This is then entered into the online Right to Work Checking Service which can be found here.

When reviewing the outcome of an online check, ensure that:

  • it confirms that the individual is allowed to work in the UK and perform the work in question
  • that the photograph and date of birth are consistent with the individual’s appearance, and
  • if the prospective employee is a student, appropriate additional information is retained.

The online checking service can be used by non-EEA nationals who hold biometric residence permits/cards, EEA nationals who have been granted immigration status under the EU Settlement Scheme and individuals who hold a BNO visa or Frontier Worker Permit. The right to work for individuals who fall outside these categories will need to be checked using paper documentation.

To carry out the check using paper documentation:

Request original right to work documents from List A or List B from the individual.

Once received, check that the documents are valid in the presence of the individual in question. To do this you should check:

  • the expiry date of the document
  • that the photograph and date of birth are consistent with the individual’s appearance
  • that the name on the document matches the name provided in the job application and any other documents provided
  • that the document does not restrict the individual from performing the work in question
  • the genuineness of the document to ensure that it has not been forged or been tampered with, and
  • if the prospective employee is a student, appropriate additional information is retained.

Evidence of the right to work check must be retained.

We provide training for staff on how to carry out compliant right to work checks. Please contact us to discuss this further.

What is an Identity Service Provider (IDSP)?

An IDSP uses Identity Document Validation Technology (IDVT) to digitally verify a British or Irish passport on behalf of the employer as part of the right to work check.

This service can only be used for British and Irish citizens and still requires the employer to satisfy themselves that the photo and biometric information on the passport matches the individual in question and retain a record of the check done.

What evidence do I need to retain of a Right to Work Check?

You must retain a record of the documents that have been checked. This can be a hard copy e.g. colour photocopy or a scanned and unalterable copy e.g. jpeg, pdf file.

You must also record the date that the check was undertaken. The simplest way to do this is to write on the copy document “the date on which this right to work check was made was [date]” and sign your name and role.

How do employers carry out right to work checks on EU staff recruited after 31 December 2020?

Right to work checks should still be carried out before employment begins and can be done either online or in person using hard copy documents.

The documentation that can be accepted from an EU/EEA national or their family member will depend on whether they have registered under the EU Settlement Scheme.

Individuals who have registered under the Scheme do not receive a formal document showing that they have settled or pre-settled status but instead their status is shown on their online immigration account.

From this account they can generate a code which they provide to their employer. This allows the employer to log on, view their status and download or print this as evidence of their right to work.

The right to work check guidance has been updated soon before the end of the grace period on 30 June 2021 and in August 2021 (see above).

Can adjusted checks put in place during the Covid-19 pandemic still be used to check right to work?

No. The Home Office introduced temporary Covid-19 concessions to facilitate social distancing which allowed employers to carry out the right to work check using electronic copy documents.

This concession ended on 30 September 2022 and employers must see the applicant’s original documents when checking right to work in order to carry out a compliant check.

Will we need to carry out retrospective checks if the Covid-19 temporary measures have been used?

The Home Office has confirmed that you do not have to carry out retrospective checks on those who had a COVID-19 adjusted check between 30 March 2020 and 30 September 2022 (inclusive).

 

How long do I have to retain evidence of a Right to Work Check?

Evidence of having carried out the right to work check must be kept securely for the duration of the individual’s employment and for a further two years after their employment ends.

Do I need to repeat the Right to Work Check?

Where the employee provides a right to work document from List A, they have an ongoing entitlement to work in the UK and no repeat checks need to be undertaken.

Where the employee provides a right to work document from List B, their right to work in the UK is limited in time and has an expiry date. This means that repeat checks must be undertaken before the expiry date shown on their right to work documentation.

The dates on which an employee’s right to work expires should be diarised as a reminder to undertake a repeat check.

What additional evidence do I need to retain for students?

International students have a restriction on how many hours per week they can work. Commonly this is 20 hours per week during term time and full time during vacations.

To obtain the statutory excuse in respect of a student, additional evidence of the student’s academic term and vacation dates must be obtained and retained.

This additional evidence can be requested from the student directly, but the evidence must originate from the education institution which is sponsoring the student.

The appropriate evidence can take the form of:

  • a printout from the student’s education institution’s website or other material published by the institution setting out its timetable for the student’s course of study. The website should be viewed to check that the link is genuine; or
  • a copy of a letter or email addressed to the student from their education institution confirming term time dates for the student’s course; or
  • a letter addressed to the employer from the education institution confirming the term time dates for the student’s course.

Non-compliance

Who is an illegal worker?

An illegal worker is an individual whose right to work has expired or alternatively, an individual who never had the right to work within the UK. This definition includes individuals who have entered the country illegally, or those who were granted leave to enter the UK, but have either overstayed past their visa expiry date or those who were granted leave subject to specific conditions which they are in breach of.

An individual does not need to have employee status in order to be regarded as an illegal worker. The offence of employing an illegal worker applies to any individual employed under a contract of employment, a contract of service or those undertaking an apprenticeship.

What do I do if someone cannot prove their Right to Work?

Anyone who cannot evidence their right to work should not be employed. If you are concerned that a new recruit or a current employee cannot evidence their right to work, get in touch to discuss the process for withdrawing the job offer or dismissing the employee.

What is the ‘statutory excuse’?

The statutory excuse is an ‘excuse’ given to employers who are found to be employing an illegal worker but have properly carried out the right to work check. This allows the employer to avoid a civil penalty.

What are the risks of non-compliance?

Immigration Enforcement Officers can turn up announced or unannounced at any employer’s premises to check whether they are employing any illegal workers and look at the right to work checks they carry out.

Employing an individual who does not have the right to work in the UK can result in, amongst other things:

  • a civil penalty
  • imprisonment for up to 5 years and an unlimited fine for anyone who knew or had reasonable cause to believe that the employee did not have the right to work
  • the employer being “named and shamed”, which is likely to cause serious reputational damage and negatively impact any future immigration applications
  • disqualification of directorships
  • if you hold a sponsor licence it may be suspended, downgraded or revoked
  • the employer receiving a Compliance Order or an Illegal Working Closure Notice.

To avoid these risks, we can provide training to your staff on how to carry out compliant right to work checks. Please contact us to discuss this further.

How much is the illegal working civil penalty?

Any employer who is found to be employing an illegal worker can receive a fine of up to £20,000 per illegal worker employed.

In certain circumstances, this can be reduced and will be reduced to zero if the employer has obtained the statutory excuse.

Can I challenge or appeal a civil penalty?

You can challenge a civil penalty notice on the basis that:

  • you are not liable to pay the penalty e.g. you are not the employer of the illegal worker
  • you have the statutory excuse, and/or
  • the level of penalty is too high e.g. you have mitigating evidence which means that the amount of the fine should be reduced.

If your challenge is unsuccessful, you can then go on to raise an appeal through the courts.

Our team has helped to successfully challenge numerous civil penalty notices, please get in touch to find out how we can help you.

Training

Right to Work training

Our immigration solicitors provide Right to Work training for HR and Recruitment teams and those who are responsible for carrying out right to work checks on employees. Using practical examples and case studies, the course is designed to up-skill your staff and ensure compliant right to work checks are completed. This training can be delivered at your premises and covers:

  • the history of illegal working legislation
  • the groups of individuals who are subject to right to work checks
  • the statutory excuse – what it is and how to obtain it
  • how to carry out a compliant right to work check
  • types of right to work documentation commonly encountered
  • right to work checks for EU nationals in light of Brexit, and
  • responding to Home Office enquiries and civil penalties.

Prices for our training courses start at £1,500 plus VAT and can be delivered in-house to your staff. To discuss your immigration training requirements or the above courses, please contact us.

Case study

Case Study

Who was the organisation?

We were instructed by a Premier League Football Club after it was issued with a civil penalty by the Home Office having been found to be employing an illegal worker.

How did we help?

We worked with the organisation to gather all of the facts regarding the recruitment and employment of the individual in question.  We reviewed all of the right to work check documents held for the individual and the organisation’s practices and procedures.

It was apparent that the Home Office was not satisfied that the check had been carried out before the individual’s employment begun as it appeared to have been done on their first day of work.

We prepared a detailed witness statement for the member of staff who had carried out the right to work check explaining the sequence of events that took place in relation to this individual and sought to clearly explain the timings of the check in order to satisfy the Home Office that whilst the check had taken place on the first day of work, it was before the individual’s contracted start time.

We also delivered a training session for all managers involved in carrying out right to work checks, along with the HR and recruitment teams to refresh their knowledge in the area.  The organisation’s right to work policy, flowchart and guidance for managers was also updated by us to ensure they were best placed to avoid any civil penalties in the future.

We then prepared a robust application and supporting documents for the Home Office objecting to the civil penalty on the grounds that an adequate right to work check had been carried out giving the organisation the ‘statutory excuse’ and avoiding liability.

The result:

Following receipt of our additional information the Home Office was satisfied that right to work check had taken place before the employment began which meant that the civil penalty notice was withdrawn and the organisation was not required to pay the hefty fine.

Disclaimer

Given the fast pace of change, we would stress that this information is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

As a hub, we have included references to articles and explainers from third parties. We have no control over and are not responsible for the content, use by you or availability of those third party websites, for any products or services you buy through those sites or for the treatment of any personal information you provide to the third party.

Our immigration team

Flora Mewies

Flora Mewies

Partner | Employment

Leeds and Manchester

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Roisin Patton

Roisin Patton

Partner | Employment

Newcastle

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Gillian Burns

Gillian Burns

Associate | Employment

Newcastle

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Natalie Payne

Natalie Payne

Solicitor | Employment

Leeds and Manchester

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Isabelle Cernis

Isabelle Cernis

Solicitor | Employment

Leeds

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