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Peninsula Group, HR and Health & Safety Experts
(Last updated )
Peninsula Group, HR and Health & Safety Experts
(Last updated )
In this guide, we'll discuss what a right to work check is, what your legal obligation is, and ways to prevent illegal working in your business.
As an employer, it's your legal responsibility to ensure staff have a right to work in the UK. You can do this by conducting a right to work check.
If you fail to verify the right to work of a prospective employee, you could end up employing an illegal worker. As a result, you might face a civil penalty, such as a fine or in extreme cases, prison.
In this guide, we'll discuss what a right to work check is, what your legal obligation is, and ways to prevent illegal working in your business.
Find the safest and easiest way to resolve your workplace issue
A right to work check is a type of background check the Home Office requires from employers. It determines whether a potential employee or casual worker has the right to work in the UK before starting employment.
To establish this, companies must check documents that validate the immigration status of all their employees. But, the documents required depend on the nationality of the candidate, as well as the type of permission they have to work in the UK.
Businesses operating in the UK must perform a right to work check on all employees, as a way of ensuring they're legally allowed to work here. This is regardless of:
Even though they already have a right to work in the UK, every British citizen must provide valid documents proving this.
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.
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.
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. However, the Gov website states this can be unlimited depending on the case.
Not to mention, you could also face up to five years in prison for failing to conduct checks. So it's important you make it a key part of your recruitment process, as well as ensuring that they’ve been completed on existing staff.
Your business can accept several types of valid right to work documents, for example, a valid passport. The government agency categorises acceptable documents in two different lists.
Let's explore both in more detail:
Valid documents under List A include:
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.
Valid documents under List B include:
If you're unsure what document your candidate has provided, seek legal advice for further confirmation.
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.
These are:
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.
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:
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.
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.
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:
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.
Next, you must check the documents the applicant presents. This means checking the documents are genuine. To do so, you must:
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.
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.
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.
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.
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. We take care of everything when you work with our HR experts.
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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