How to carry out a right to work check

We have assisted a number of clients with their right to work procedures and in our experience the most common questions are:

When should a right to work check be carried out?

A right to work check must be carried out whenever an employee starts work, and where an employee has a temporary visa a follow up check should be performed near the visa expiry to ensure the company can continue to employ the person.

Do I only need to check the right to work of non EU staff?

The duty applies to all employees regardless of their nationality and it is important that an employer applies their policy uniformly to avoid any potential claims of discrimination. This includes checking the right to work of any British employees, rather than simply targeting one group of employees for example. 

What documents are needed during a right to work check?

Previously, for most staff it was necessary to see a copy of the employee's passport or visa, but from 28 January 2019 it will be possible to carry out checks against these employees online.

However there can be difficult cases where passports are held by the Home Office or the individual has an automatic right to work in the UK and online verification will not be possible. The Home Office have published a checklist of acceptable documents for establishing the right to work and this should be followed closely to protect the employer and avoid any potential issues.

It is important to remember that a National Insurance number does not confirm someone has the right to work.  It can be combined with other documents to establish a right to work, but it is not sufficient by itself.

How do I carry out an online right to work check?

From 28 January 2019, where an employee is from outside the EU and holds a valid biometric residence permit, employers will be able to carry out online checks. These will not be available in all cases as the individual will need to have a code from the Home Office which allows you to access their data. Online checks will become more important in the coming months as EU nationals who register for Pre Settled or Settled Status will also be able to use the service.

Where an online check is carried out, the employer will not need to perform a manual check of the individual's documents, but will need to:

1. Satisfy themselves the photo on the online check is accurate;
2. Retain a copy of the online check response demonstrating the individual's right to work;
3. If the individual is a student, the employer will need to keep additional documents relating to term dates.
4. Carry out any necessary follow up checks.

Where someone cannot use the online check it will still be necessary to use the manual checking process.

How do I carry out a manual right to work check?

Carrying out a manual right to work check is a four stage process:

1. See the employee's original documents. Electronic copies or certified copies are not deemed to be suitable by the Home Office;
2. Check the document for details of any restrictions, for example non EEA students are limited to certain number of hours per week and evidence of terms dates must be retained. The document should also be checked for any obvious signs of fraud. While employers are not expected to be experts in spotting forgeries they are expected to notice obvious errors or amendments to documents.
3. Keep a copy of the document. This should be signed and dated by the person who carried out the check: they should also write "Original document seen by me on [date]" on the copy. This is a vital part of the process as if a copy of the document is not kept then the employer has no defence to a claim of illegal working.
4. Diarise any necessary follow up checks (for example towards the expiry date of the visa).

Is it necessary to carry out annual checks?

It is only necessary to carry out a check at the start of employment and, where the employee holds a temporary visa, at the time the visa expires. However, we recommend carrying out regular reviews or audits to make sure the procedure is being followed and to allow for any errors to be corrected.

What are the penalties for illegal working?

If an employee does not have the right to work, and the employer has not followed proper procedure, they can be fined up to £15,000 for the first offence and £20,000 for any subsequent offences.

There are also criminal penalties if the employer had reasonable cause to believe that an employee did not have the right to work.

The Home Office also have the power to close premises for up to 48 hours where the illegal working is found to have taken place.

Summary

The law in relation to right to work is complicated and the penalties for errors are strict. The best way for an employer to protect themselves is to ensure they have a robust procedure in place for compliance.

If you have any questions about how to carry out a right to work check, implementing a right to work policy or carrying out a compliance audit please get in touch.