As an employer, it's your legal responsibility to ensure your staff have the right to work in the UK. This is usually done by conducting a right to work check.
If you fail to verify right to work checks for a prospective employee, you could end up employing them illegally. As a result, employers may face civil penalties, such as monetary fines, business closure, or even imprisonment in extreme cases.
In this guide, we'll discuss what a right to work check is, what your legal obligations are, and ways to prevent illegal recruitment within your business.
What is a right to work check?
A right to work check is a type of background check that the Home Office requires of employers. It determines whether a potential employee or casual worker has the right to work in the UK before they start their employment.
To establish this, companies must check documents to validate the immigration status of all their employees. These documents will depend on the nationality of the candidate, as well as the type of permission they have to work in the UK.
Why are right to work checks important?
Right to work checks are important for a number of reasons. For example, mostly, it prevents people from working illegally in the UK. But, they’re also important because they ensure your legal compliance as an employer.
Right to work check gives employers a 'statutory excuse' so that if an employee is found to be working illegally - and a check has been completed, then the employer is likely not liable. Failure to perform them could mean you hire an illegal worker, which could result in you paying a heavy fine.
Who needs a right to work check?
Businesses operating in the UK must perform a right to work check on all employees. This ensures they're legally allowed to work here. This is regardless of factors like race, gender, age, nationality, or status of residence.
Even if a person already has a right to work in the UK, every British citizen must provide valid documents to prove this.
When should right to work checks be carried out?
Right to work checks must be carried out during the job offer stage. Or, first thing on the first day of the applicant's employment.
If you leave it too late, you could end up hiring illegal workers, which could have severe consequences for your business, and yourself. For example, fines or in serious cases, imprisonment.
Who is responsible for doing right to work checks?
The employer is responsible for performing right to work checks on all their employees.
Yes, applicants will need to supply a valid form of verification. But it's the employer's responsibility to ensure staff have a right to work in the UK.
What is the consequence for avoiding a right to work check?
There is no fine for avoiding right to work checks. But, if you fail to perform one and hire an illegal worker, you could face fines of £20,000 per illegal worker. In other cases, you could end up facing unlimited compensation fines (depending on the severity of the case).
Not to mention, employers can face up to five years in prison for failing to conduct right to checks. It's important to make it a key part of your
recruitment process, as well as ensure checks have been completed for existing staff.
What are valid right to work documents?
Your business can accept several types of valid right to work documents; like, a valid passport. The government agency categorises acceptable documents in two different lists. Let's explore both in more detail:
List A
Valid documents under List A include:
A British passport or Irish passport (current or expired): This must show that the holder is British or Irish citizen, or citizen of the Colonies, and has the right of abode in the UK.
An Irish passport card (current or expired): This is specific to Irish citizens, and is used to prove they are Irish nationals.
A document from the Bailiwick of Jersey, the Bailiwick of Guernsey, or the Isle of Man: This document should be verified by the Home Office Employer Checking Service, and shows that the holder has been granted unlimited leave to remain under the Appendix EU.
A current passport endorsed to show the holder is exempt from immigration control: This should confirm the holder is allowed to stay indefinitely in the UK, has the right to abode in the UK, or has no time limit on their stay in the UK.
A current immigration status document: This is issued by the Home Office, and confirms that the person presenting the documents is allowed to stay indefinitely in the UK. This should be used alongside an official document that provides the person's National Insurance number. And their name issued by a government agency or previous employer.
A birth certificate or adoption certificate issued in the UK: This should be used alongside an official document that provides the person's permanent National Insurance number in the UK, Channel Islands or Isle of Man. And their name issued by a government agency or previous employer.
A certificate of registration or naturalisation as a British citizen: This must be used together with an official document giving the person’s permanent National Insurance number and their name. Which must be issued by a government agency or a previous employer.
A pre- or settled status document issued under the EU Settlement Scheme: This proves a person's indefinite leave to remain in the UK, if they are an EU/EEA citizen.
A commonwealth citizen may have a right to work in the UK indefinitely, if they're able to provide valid documents under the Windrush Scheme. It’s also worth noting that as of October 2022, a Biometric Residence Card is no longer a valid document of proving right to work.
List B
Valid documents under List B include:
A current passport: This should show the holder is allowed to stay in the UK and can do the type of work in question.
A document from the Bailiwick of Jersey, the Bailiwick of Guernsey, or the Isle of Man: Under the Employer Checking Service, this must show the holder has been granted limited leave to work in the Appendix EU. This is also valid if the person's application is in process.
A current immigration status document: This should contain a photograph issued by the Home Office, alongside a valid endorsement that the person can stay in the UK and work. As well as an official document providing the person's permanent National Insurance number.
A certificate of application issued by the Home Office: This should show the applicant in question has made an application for leave to enter or remain under Appendix EU, together with the Positive Verification Notice.
Application registration card issued by the Home Office: This should show the holder is permitted to take the employment in question. It must be used alongside a positive verification notice.
A positive verification notice: This type of work permit will be issued by the Home Office Employer Checking Service, and indicates the person in question can stay in the UK, as well as allowing them to do the work in question.
If you're unsure what document your candidate has provided, seek legal advice for further confirmation.
Ways to check an employee's right to work in the UK
There are several ways you can check an employee's right to work in the UK. For example, you could use a manual right to work check. Let's take a look at them in more detail, so you know which one your business must conduct:
IDVT right to work check
Employers can conduct remote digital identity checks through an identity service provider. These providers check these documents for you via Identity Document Validation technology (IDVT). They can be used for right-to-work checks for British and Irish citizens who hold a UK or Irish passport card.
Following a digital check, the employer must carry out a visual follow-up check. This can be done when the applicant first reports to work. A follow-up check is done to make sure that you are satisfied that the job applicant's physical appearance matches the details on the documents they have provided.
Home Office online right to work check
Employers can choose to use online checks over a manual or digital check where possible. An online check can be used to verify an employee's right to work in the UK. They can be carried out if an employee has the following documentation:
- Working visas.
- Pre-settled or settled status under the EU settlement scheme.
- A frontier worker permit.
It's important to note that employers are no longer allowed to accept physical copies as valid evidence of an individual's right to work.
Manual right to work check
A manual right to work check refers to employers meeting with prospective staff in person, to ensure they bear a physical resemblance to the ID and documents they have provided. For example, if this is a passport, you should be able to check this matches a person's appearance.
When performing one of these checks, you must ensure you obtain the correct documents, check them thoroughly, and copy them for your own records. Not to mention, perform follow-up checks if you need to.
How to conduct a manual right to work check
To conduct a manual right to work check, you should follow several basic steps. For example, obtaining appropriate documents during the recruitment process.
Let's discuss these steps in more detail:
Obtain two documents
The first step in conducting a right to work check is obtaining valid documents. These should be the applicant's original documents, and be a valid form of verification from List A or List B.
You must request two documents if the prospective employee doesn’t have a valid passport.
Check the original document
Next, you must check the documents the applicant presents. This means checking the documents are genuine. To do so, you must:
- Review the photographs and date of birth to check it's consistent with the person’s appearance.
- Check the insert date is valid.
- Check the expiry date hasn’t passed.
You should also check the reasons for name differences across documents that can be explained by providing evidence. For example, you could check their name against a divorce decree, marriage certificate or deed poll.
Copy documents presented
Following this, you must make a clear copy of the documents presented. This must be within a format that cannot be manually altered, and retained electronically or as a hard copy. Ensure you also retain a secure record of the date the documents were presented.
If the worker does turn out to be working illegally, by copying and retaining the documents, you have a time-limited statutory excuse that protects you from civil penalties. This is because you did everything you reasonably could to ensure they had a right to work.
Make repeat checks
If needed, ensure you make further checks. This is especially the case if the person in question has limited leave to work in the UK.
For example, if they have a working visa. These types of right to work documents will have expiry dates, so ensure you're legally compliant by checking them when needed.
Get expert advice on right to work checks from Peninsula
You must verify a person's employment by checking their right to work in the UK. This might mean performing a manual right to work check before an individual's employment begins. But this depends on your business.
Failure to do so could mean you employ an illegal worker. As a result, you might receive an unlimited fine, or a jail sentence. Not to mention, breaching this law might result in damage to your business's reputation.
Peninsula offers expert advice on right to work document checks. Our teams provide
24/7 HR advice which is available 365 days a year. Want to find out more? Contact us on
0800 028 2420 and book a free consultation with an
HR consultant today.
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