Right To Work Checks: A guide for employers

All UK employers have a responsibility to prevent illegal working. While employers want to have the widest possible talent pool when they are recruiting, there is a hidden catch – some individuals may have restrictions on their eligibility to work in the UK, how long they can work and what type of work they can do.

By carrying out Right to Work document checks correctly, employers should be able to rely on a statutory defence against allegations of compliance breaches, where they can demonstrate they have taken consistent and compliant measures to ensure they are only hiring individuals with permission to work in the UK.

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How can employers complete right to work checks?

Employers need to carry out Right to Work checks in person or implement suitable, compliant digital processes.

The way you check someone’s right to work will depend on a number of factors, such as the worker’s nationality. It is recommended that you create a robust Right to Work checking process that all recruiting managers are trained to follow.

Manual check

‘Manual’ checking refers to meeting the individual face to face and checking a physical copy of their documentation. Employers should refer to the lists of documents which can be accepted as proof of entitlement to work in the UK.

Digital checks

Digital Identity Service Providers (IDSPs) conduct digital identity checks on behalf of the employer for British and Irish citizens that are beyond the scope of the Home Office online service.

Employers can only rely on the statutory excuse against a civil penalty if they follow the government guidance on digital Right to Work checks. It remains the employer’s responsibility to obtain the IDVT (Identity Document Validation Technology) check from the IDSP.

Online checks

Employers are able to use the online checking service with the employee’s right to work share code where the individual has either a biometric residence permit, biometric residence card, pre-settled or settled status under the EU Settlement Scheme or a frontier worker permit. This service will inform you if the leave is time limited, or if the individual has indefinite leave to stay in the UK. To use this service, you will need the nine-digit alpha-numerical ‘right to work share code’ given to the prospective employee by the UK government.

Employer Checking Service

This free online service from the Home Office allows employers to conduct checks when the individual is unable to use online checks or provide acceptable documentation for manual checks. This type of check may be used when an individual is awaiting a Home Office decision on a pending application, or if they came to the UK prior to 1989 and do not hold documentation proving their right to work in the UK.

What are the three steps of a right to work document check?

Home Office guidance states a compliant manual Right to Work comprises three stages:

• obtain the documentation – Obtain original documentation from either List A or List B of acceptable documents. (Typically, UK citizens will supply their passport to evidence their right to work in the UK.) Driving licences, DBS checks (disclosure and barring service), and criminal record checks are not right to work checks and such documentation should not be relied upon.
• check the documentation – Consider whether the documents appear genuine, and whether they have been tampered with, and check that the prospective employee matches the photo. Look out for and adhere to any restrictions according to Home Office guidance. Where information comes directly from the Home Office, you do not need to see physical evidence. However, when relying on this service, you must ensure the person in the photo matches the person attending work.
• retain a copy of the check – It is essential that all documents are stored as a hard copy or electronically (pdf that cannot be tampered with), for the duration of employment plus two years after it has ended. All copies need to be signed and dated by the individual performing the check.

What is the risk to employers of failing to undertake right to work checks?

If employers don’t carry out the appropriate right to work check, it could end up costing a lot more than anticipated.

• Civil penalties – On the spot fine of up to £20,000 per breach may be issued if you employ someone without carrying out the required checks, or if the checks were not carried out properly.
• Criminal prosecution with up to 5 years in prison – In the most serious cases, condoning the employment of illegal workers and hiding such actions from authorities can lead to imprisonment of up to 5 years and/or an unlimited fine.
• Financial and reputational loss – Penalties may also include enforced debt action and county court judgements. Company directors may also face disqualification, or the business forced to cease trading which will bring negative press and reputational damage.
• Prevention of any further recruitment of international talent – Failure to uphold responsibilities as a sponsor can lead to sponsorship licences being downgraded, suspended or even revoked.

Right to work checks – key points for employers

• It is essential the correct RTW check is completed before the individual is due to start working.
• Ensure that if RTW is time-limited, it is rechecked before it expires.
• Don’t inadvertently discriminate by being selective with RTW checking. The government has issued a Code of practice for employers to avoid unlawful discrimination while preventing illegal working.
• Advise UK Visas and Immigration authorities where there is any suspicion a document is not genuine or does not belong to the individual.

Right to Work checks can be tricky to navigate, but we at MAD-HR have a highly knowledgeable and experienced team who will be happy to help you with any queries or concerns that you may have.

Contact us at MAD-HR for more advice and information.